A Federal Court of Appeals Gets it Wrong on Birth Control: Why Contraceptive Exclusions in Health Coverage Discriminate Against Women

By SHERRY F. COLB

Wednesday, Apr. 18, 2007

Last month, the U.S. Court of Appeals for the Eighth Circuit decided In re Union Pacific Railroad Employment Practices Litigation, an important case about sex discrimination and birth control. The court held that employers may lawfully exclude contraceptive coverage from the health insurance that they provide to their employees. According to the court, such an exclusion does not violate Title VII of the Civil Rights Act (Title VII), as amended by the Pregnancy Discrimination Act (PDA).

Union Pacific represents the first ruling on the contraception question from a federal court of appeals, and it explicitly rejects the Equal Employment Opportunity Commission (EEOC) position on the matter. It also happens to be wrongly decided.

Title VII and the Pregnancy Discrimination Act

In General Electric v. Gilbert, the U.S. Supreme Court held that employers could lawfully exclude pregnancy from coverage under their short-term disability plans for employees. Pregnancy discrimination, accordingly, would not count as sex discrimination under federal law.

In response to this ruling, Congress enacted the Pregnancy Discrimination Act, which explicitly prohibits employers from discriminating against women for pregnancy, childbirth, and related conditions. The relevant language states:

[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

Congress intended this legislation to reverse the earlier conclusion of the U.S. Supreme Court that discrimination on the basis of pregnancy is not sex discrimination. Critics of Gilbert were relieved that Congress was - only two years after the decision had come down - prepared to acknowledge officially that pregnancy is an exclusively female biological experience that has numerous and profound consequences. By explicitly referring to fringe benefits programs, moreover, Congress made plain that the employer's actions in Gilbert - its placement of pregnancy-related disability outside the scope of otherwise available disability protection - would no longer be tolerated.

In addition to prohibiting discrete employment practices, the PDA introduced into employment law a significantly new way of thinking about sex discrimination. It provided that men would no longer represent the standard human being, from which deviations (like pregnancy) could be handled in whatever manner an employer saw fit. A woman could experience uniquely female biological events and still demand that her employer treat her as well as it treats her male counterparts. This development enabled women to embrace their own reproductive lives - distinct as they are from those of men - without apology and without retribution.

The Court's Faulty Reasoning: Treating Equality as Sameness

The Eighth Circuit's opinion in Union Pacific demonstrates a failure to appreciate and thus to apply the PDA's reconceptualization of sex discrimination in light of the significant distinction between male and female reproductive roles.

The court of appeals begins the discussion section of its opinion by saying that the district court erred in characterizing Union Pacific's policy as denying contraceptive coverage "for women." In fact, notes the appellate opinion, Union Pacific excluded contraceptive coverage for both men and women: Just as women could not purchase birth-control pills under the policy, men could not purchase condoms (and neither men nor women could undergo surgical interventions such as tubal ligation and vasectomy).

The court therefore concludes that the contraception exclusion treats men and women the same and accordingly does not discriminate on the basis of sex for purposes of Title VII. Furthermore, according to the court, women's use of contraception does not represent a pregnancy-related condition under the PDA.

To characterize the denial of contraception as sex-neutral conduct, however - as the court does - is to assume that one need only treat men and women the same - in the formal sense of denying both of them a particular benefit - to comply with the equality mandate of Title VII. This assumption is a familiar one. It motivated the U.S. Supreme Court's decision in Gilbert as well as its decision in Geduldig v. Aiello, which held that denying women disabled by pregnancy a benefit otherwise available for disabled employees does not violate the law against sex discrimination, since it treats non-pregnant women and non-pregnant men the same way. (And, by implication, it treats pregnant women and pregnant men the same way as well!)

However, as I argue in my new book, When Sex Counts: Making Babies and Making Law, it is incoherent to speak of "men who are not pregnant" as though there could be men who are pregnant. Congress, by passing the PDA, recognized this incoherence and accordingly rejected the reasoning of the U.S. Supreme Court. The legislative branch thereby normalized pregnancy as a part of the human experience entitled to the same coverage and consideration as other features of the human experience that men share. And that is why an employee policy that provides a temporary leave of absence for non-pregnancy-related disabilities but denies such a leave for pregnancy-related disabilities is, after enactment of the PDA, sex discrimination under Title VII.

Why Pregnancy and Contraception are Medically Related to Each Other

Aware of the PDA, the Eighth Circuit realizes that it must defend its "sameness" approach to the problem posed by Union Pacific. It must, in other words, distinguish between the denial of coverage for pregnancy and the denial of coverage for contraception. It does so by concluding that the PDA's language protecting "women affected by pregnancy, childbirth, or related medical conditions" has no application to contraception, because the use of contraception is not a medical condition related to pregnancy.

In one sense, the court is correct. If a woman wishes to use contraception, she is (to her knowledge) neither pregnant nor giving birth at the moment. Indeed, her wish is quite evidently to prevent pregnancy and childbirth and thereby to avoid the range of pregnancy-related conditions. Almost by definition, then, a user of contraception is (and hopes to remain) a person who - like every man on the planet - is neither pregnant nor giving birth.

A difficulty in this reasoning emerges, though, when we consider why it is that women (and men, for that matter) use contraception. In the absence of birth-control, a sexually active woman in her childbearing years is overwhelmingly likely (about 85%) to become pregnant within a year. A sexually active man of a similar age, by contrast, has a 0% chance of becoming pregnant within a year.

Contraception - whether used by men or women - is thus meant to prevent a woman from becoming pregnant. The condition of fertility in a woman - for which contraception is prescribed - is therefore appropriately characterized as quite pregnancy-related. Such fertility is the condition of being vulnerable to pregnancy, and it is - in addition to being pregnancy-related - uniquely female.

The Eighth Circuit's failure to understand the intimate link between contraception and pregnancy is evident, among other things, in its view that denying contraception to men is the moral equivalent of denying it to women. In reality, men who use contraception are engaged in a distinct enterprise from women who use contraception. Men are not guarding against their own vulnerability to becoming pregnant. They are guarding, instead, against their female sexual partners' vulnerability.

The suggestion that denying the entire workforce contraceptive coverage is gender-neutral, then, accordingly resembles a claim that providing family health coverage that excludes treatment for cervical cancer is gender-neutral. As with pregnancy, a man can be financially or emotionally tied to a person who has cervical cancer. But men do not have a cervix and cannot become pregnant. Medical coverage that singles out people who have a cervix or people who can (but do not want to) become pregnant is therefore anything but gender-neutral.

Words of Wisdom from Former Chief Justice Rehnquist

Most people do not think of the late Chief Justice William H. Rehnquist as a feminist, but he had his moments. For one thing, he wrote the opinion for the U.S. Supreme Court in Meritor Savings v. Vinson, which recognized sexual harassment as sex discrimination in violation of Title VII. And he made a useful observation in Michael M. v. Superior Court, the case that approved of sex-specific statutory rape legislation: "We need not be medical doctors," he said, "to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity." The Eighth Circuit could take a lesson from these words.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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