A BITTER PILL. The 8th Circuit Court of Appeals ruled that a company's failure to offer insurance coverage for contraception doesn't violate its female employees' civil rights.

The suit against Union Pacific railroad for failing to cover contraceptives has been going on for years. In 2005, after the district court ruled in favor of UP's female employees who sued for coverage, the company "independently" agreed to cover birth control. (Initially, the UP insurance plan covered drugs like Viagra and Rogaine but not birth control pills or IUDs.) But this ruling means that UP and other companies are still not required to cover contraception. Which is a problem.

The female employees and Planned Parenthood (which joined the suit) alleged that failure to cover contraception is discrimination under the Pregnancy Discrimination Act. The language in the law says it applies to "women affected by pregnancy," not "pregnant women." They argued that every sexually active woman who is capable of becoming pregnant is a woman "affected by pregnancy." (I completely agree.) But the appellate judges rejected the argument on the basis that the PDA does not specifically mention contraception.

How hard is it for judges to understand that 1) contraception is a basic, fundamental part of women's preventive and routine health care, 2) pregnancy -- which is the result of lack of contraception use -- disproportionately affects female employees, so 3) failure to cover contraception is discrimination against women? Seems clear as day to me.

The kicker? UP was named one of Working Mother magazine's best companies for women! Despite the fact that many of its readers are, I'm sure, mothers who don't want any more children, the magazine doesn't include insurance coverage of contraception as one of its judging criteria.

One judge on the panel dissented, which may pave the way for an appeal. In the mean time, we can encourage Congress to take action on the Prevention First Act, which "guarantees equity in contraceptive coverage by ensuring that private health plans offer the same level of coverage for contraceptives as they do for other prescription drugs and services."

--Ann Friedman

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