Bartell must cover employees' prescription contraceptives, judge rules

A federal court judge has ruled that Seattle-based Bartell Drugs must cover prescription contraceptives in its employee medical plan.

In his ruling Tuesday, U.S. District Court Judge Robert Lasnik agreed with Planned Parenthood, which brought the class-action lawsuit on behalf of women employees of the Seattle-based drugstore chain. Lasnik said the company's policy violates the federal Civil Rights Act because it is a form of gender discrimination. The case is likely to be appealed.

The case is the first lawsuit to force a health-care plan to cover contraceptives. The outcome was being closely watched nationally by both employers and women's health care advocates.

The lawsuit pitted family-owned Bartell Drugs, known as a progressive employer, against pharmacy manager Jennifer Erickson.

"Bartell's prescription drug plan discriminates against Bartell's female employees by providing less complete coverage than that offered to male employees," Lasnik said in his ruling. "Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate healthcare need uncovered."

Analyzing other cases, Lasnik said, led him to believe that Title VII of the Civil Rights Act "requires employers to recognize the differences between the sexes and provide equally comprehensive coverage, even if that means providing additional benefits to cover women-only expenses."

If it is upheld, the ruling means that Bartell must cover each of the available options for prescription contraception to the same extent, and on the same terms, that it covers other drugs, devices, and preventive care for non-union employees.

Lasnik also ordered that the company cover "contraception-related services, including the initial visit to the prescribing physician and any follow-up visits or outpatient services, to the same extent, and on the same terms, as it offers coverage for other outpatient services for its non-union employees."

The case is almost certain to be appealed by Bartell, with a workforce of about 14,000 - about two-thirds of whom are women. The ruling would mean that Bartell's self-funded health insurance plans must cover FDA-approved prescription contraceptives such as birth-control pills, Depo-Provera injections, Norplant implants, intrauterine devices and diaphragms. The company would not have to cover over-the-counter contraceptives such as condoms.

The ruling may also open the door to coverage of such procedures as fertility treatment or in-vitro services, Bartell's lawyer argued earlier.

Legally, the case turned on the answers to questions that sounded a lot like riddles:

• Federal law prohibits discrimination "on the basis of pregnancy, childbirth, or related medical conditions," but is the potential to become pregnant a "related medical condition?"

• If a company excludes all "family planning" treatments or prescriptions, such as in-vitro fertilization or fertility treatments, is it discrimination to also exclude contraceptives from coverage?

• Is a prescription for contraceptives the same as, say, a prescription for high-blood-pressure medication?

• Is there any similar issue applying only to men? What are comparable drugs or devices?

• Does refusing to cover prescription contraceptives discriminate against women?

A slightly larger view, not necessarily from the legal perspective, adds these questions:

• Should insurance cover expected, relatively small costs that occur regularly? What if it means that coverage of bigger, non-expected costs must be cut?

• Since women use health-care services more than men, should coverage be balanced by total amount spent by each sex?

Roberta Riley, representing Erickson, argued that the U.S. Supreme Court had already found that a company couldn't treat female workers differently from other employees "simply because of their capacity to bear children."

The previous case involved a company that barred women from working with lead parts because of the potential for harm to a fetus; the court ruled that the company should disclose the dangers, but leave it to women to decide, rather than bar them from the jobs.

Riley also argued that the U.S. Equal Employment Opportunity Commission (EEOC) had already decided this issue in an earlier case, ruling that contraception was "a means to prevent, and to control the timing of, the medical condition of pregnancy." Because the employer in that case covered other drugs, devices and services used to prevent the occurrence of other "medical conditions," the EEOC concluded, contraception should also be covered.

However, in that case, the company covered surgical forms of sterilization, as well as other treatments and services designed to prevent future medical conditions, the EEOC noted.

Bartell, however, argued that the Pregnancy Discrimination Act (a 1978 amendment to Title VII of the Civil Rights Act) intended to protect women from being forced to choose between their careers and having children, and to prevent employment policies that place a burden on a woman's right to have children.

Under the benefits plan, Bartell argued, male and female employees are treated exactly alike. It doesn't provide such coverage for female spouses of male employees, nor does it cover Viagra, the male impotence drug.

Bartell's lawyer, Jim Dickens, says the company's position is that contraceptive coverage is properly a legislative issue, and should be addressed that way - not by the court.

Dickens also noted that dollars for health coverage aren't endless, and that adding coverage in one area means it must be cut in another. Already, the plan offers some very expensive drugs, including Tamoxifen and Casodex for cancer treatment, and Enbrel for severe rheumatoid arthritis - which can cost $2,000 per prescription without coverage.

In dollars, the cost of contraceptives wasn't hurting Erickson, and the suit was only seeking nominal damages. Erickson makes over $75,000 a year working for Bartell, and together, she and her husband make over $100,000, according to papers filed in the lawsuit. She could buy birth control pills from Bartell for $29 per month with an employee discount. Even if the pills were covered, she would still pay a $10 co-payment for brand-name drugs.

But Erickson says the $250 a year difference isn't the issue.

"The most important thing to me has been the principle," says Erickson. "It's never really been the money. I'm representing hundreds of women working at Bartell's who don't make as much, and it's definitely an issue for them."

In her deposition, Erickson says, she shot back at Bartell lawyers trying to make hay with the salary issue, telling them: "I didn't realize that making x dollars means I can't be discriminated against."

Erickson says she felt that as a supervisor, it was easier for her to step forward, and she felt a responsibility to do so.

Planned Parenthood paid for the legal challenge, hoping to set a precedent after years of futilely promoting legislative change and a moderately successful campaign urging women to encourage their employers to provide the coverage.

Meanwhile, Erickson became a somewhat reluctant heroine for a movement. She said many customers encouraged her, which fortified her against criticism. "I'm doing what anybody else would have done."