DENIAL OF BIRTH CONTROL INSURANCE AS A FORM OF SEX DISCRIMINATION: What "Male" Drug Is Most Similar To Birth Control Pills? Female Birth Control?

A few weeks ago, the Equal Employment Opportunity Commission ("EEOC") ruled that employer-provided prescription drug benefit plans that fail to cover birth control may be unlawfully discriminating on the basis of sex. This was welcome news for female employees. Birth control is expensive, and many women sensibly believe that it should fall well within the scope of any reasonably comprehensive health plan.

The fight for coverage as a matter of gender equality has been a difficult one, however. The challenge has been finding the appropriate analogy to women's birth control in men's repertoire of medical needs.

An analogy is necessary because benefit plans do not literally deny women coverage for the same exact prescription that they cover for men. In other words, if a male employee were to somehow to get a prescription for female birth-control pills, then the benefit plan would refuse to cover the cost of that prescription, just as it would for a female employee. The policy is formally gender- blind: Anyone who wants birth control pills is denied coverage.

Nonetheless, this formal gender blindness only thinly veils an obvious gender difference as to who, in practice, receives coverage. And just as a plan covering treatments for testicular cancer but not ovarian cancer would represent sex discrimination, the failure to cover birth-control for women may also represent sex discrimination if an analogous prescription for men is covered. But what "male" prescription should be considered analogous?

For obvious reasons, the analogy that most appeals to employers is that of male birth control. Since employee benefit plans do not reimburse men for the cost of condoms or of (presently nonexistent) male prescription contraceptives, employers argue, they treat women equally in denying them coverage too — whether for a the so-called "female condom"diaphragm or for birth control pills.

The problem with this argument is that women bear the biological consequences of pregnancy in a way that men do not. Legal doctrine has recognized this practical reality has been recognized in legal doctrine as well.

In the 1981 case of Michael M. v. Superior Court, for example, then-Justice Rehnquist embraced this principle when he explained, on behalf of a plurality of the Supreme Court, why statutory rape laws may fairly target men alone. Rehnquist, and the plurality, reasoned as follows: "Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct."

Viewed from this perspective, the failure to cover the cost of contraception does not have the same medical implications for men as it does for women — for if the lack of coverage contributes to pregnancy, women suffer more.

The EEOC, probably in part for this reason, chose preventable medical conditions, rather than male prophylactics, as the proper analogue for unwanted pregnancy. If an employer sees fit to cover vaccinations and medications to prevent a condition such as high blood pressure, for example, then the EEOC says it must also cover medications that prevent pregnancy.

Pregnancy is a physically burdensome, risky, and painful condition that many women choose (and have the right to choose) to avoid. But is preventive medicine really the proper analogy to contraception?

Unlike hypertension, as employers were quick to argue to the EEOC, pregnancy is not an abnormal or pathological condition. While no one would choose to have high blood pressure or the flu, people do choose to become pregnant and sometimes go to considerable expense for fertility treatments that allow them to do so. To treat pregnancy as a preventable illness therefore seems to miss an important feature of pregnancy.

The analogy to vaccinations is flawed for a second reason as well. It assumes that in the absence of birth control, women would become pregnant, just as men and women would become hypertensive without preventive medication. But of course, that is not necessarily the case.

Many women, faced with the risk of an unwanted pregnancy, might choose instead to abstain from sex. Indeed, the possibility of this choice is what drove then-Justice Rehnquist to say in the statutory rape case that "the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly ‘equalize' the deterrents on the sexes."

If we understand sexual intercourse as an activity that women might choose to forego, then it becomes clear that what birth control primarily does is facilitate sexual activity for women, not rather than prevent pregnancy.

This notion — that denying women birth control is more akin to denying them sexual agency than to forcing pregnancy upon them — is actually a familiar one. It is the reason that many women's groups expressed outrage when employee insurers that would not cover contraception decided nonetheless to cover Viagra, a pill that helps men overcome sexual impotence (or "erectile dysfunction").

Though birth control does not literally make sexual intercourse possible, the way Viagra does, it is similar in that it gives women access to this activity even when they wish to avoid pregnancy. The failure to cover birth control has, for this reason, signified for many a hostility to women's sexuality.

The willingness to provide coverage for Viagra but not birth control touched a nerve precisely because it seemed to capture the double standard in our society. That is, it captured society's failure to view women's sexuality as a normal part of women's lives that ought to be supported, accommodated, and even celebrated, to the same extent that men's sexuality is.

Nevertheless, the EEOC has chosen to compare birth control to blood-pressure medicine — not to Viagra. Because that analogy will help provide the coverage that so many women seek, it should be applauded.

At the risk of looking a gift-horse in the mouth, however, I would suggest that at a theoretical level, it might make better sense for the EEOC to view contraception as analogous to Viagra — as a medication that can facilitate women's chosen sexual relationships with their male partners.

This analogy would resonate better with women's own perception of what they do when they purchase birth control. Because it comports better with women's experience, moreover, it may be more likely to survive judicial scrutiny.

Classifying birth control as a medicine for facilitating sex for women would also have the added benefit of conveying a liberating message about women's lives. The message would be this: Not only is it legitimate to choose not to become pregnant, but it is also legitimate to seek out sexual fulfillment without facing the threat of an unwanted pregnancy — a threat (as then-Justice Rehnquist aptly commented in the statutory rape opinion) roughly equal in deterrent effect to that of a prison sentence