Ten years ago today, the Equal Employment Opportunity Commission (EEOC) ruled that refusing to cover prescription contraception in an employee health plan - if other similar preventive services and prescription drugs were covered in that plan -violated Title VII of the Civil Rights Act of 1964 and the amendment to Title VII, the Pregnancy Discrimination Act. It was a monumental victory for women, many of whom spend the majority of their reproductive lives (approximately three decades) trying to avoid an unintended pregnancy. Women rely on contraception to plan their families, and appropriately and safely space their children.
Before this important ruling, things were pretty bleak on the contraceptive coverage front. At that time, half of traditional indemnity plans for large groups did not cover any reversible prescription methods of contraception and only 39 percent of health maintenance organizations (HMOs) covered all five leading methods. [i] This meant that many women were paying for contraceptives themselves or - as was often the case - were at high risk for unintended pregnancy because they could not access affordable and effective contraception.
Now we find ourselves, 10 years after the EEOC victory, with an opportunity to expand contraceptive use by ensuring affordable access to contraceptives in all health plans. The EEOC ruling did much to advance women's equality in health coverage, but cost still leaves many women without access to birth control. But now, the Affordable Care Act (ACA) requires that preventive services be covered by insurers at no cost. The Women's Health Amendment to the ACA specifically requires coverage of preventive services for women.
There's one catch. The law didn't specify which women's health services qualify as preventive. Instead, a committee appointed by the Institute of Medicine (IOM) has been charged with making a recommendation to the Department of Health and Human Services (HHS) on what services should make the list. Whatever is ultimately decided will have a huge impact on women because, while the EEOC ruling 10 years ago expanded access to prescription birth control for women with insurance coverage, women still bear a significant burden of expense through co-pays and other cost-sharing. If there's one thing we know for sure, it's that cost is a barrier to contraceptive access and use. Studies show that even minimal co-pays for preventive services deter consumers from obtaining the care they need.[ii]
Health reform has the potential to expand affordable access to prescription contraceptives to women in all 50 states and the District of Columbia. Not surprisingly, this potential expansion of contraceptive coverage breathed new life into the attacks on family planning in this country. At a recent IOM hearing on the issue, anti-choice organizations lined up to testify - without any real evidence - that "birth control poses serious health risks to women and adolescents" and that mandating coverage would violate the rights of employers and insurers. (These claims don't pass the laugh test, and the only silver lining to this debate is that it exposes the real agenda of these groups. The public generally knows them only as anti-abortion. They try to hide their anti-contraception views, because birth control has such overwhelming public support.)
The National Partnership for Women & Families testified at the hearing (as did a number of other women's health experts) that family planning is basic health care for women and should be treated like any other preventive service under ACA. Period.
In its ruling ten years ago, the EEOC rectified a long-standing inequity for women. The only forms of FDA-approved prescription contraceptives available today are for women -and pregnancy is a condition unique to women. So the failure to cover contraceptives, when other prescription drugs are covered, has a disproportionate and discriminatory impact on women.
As the IOM considers whether to recommend to HHS that prescription contraceptives be included in the menu of preventive services that health plans are required to cover without cost sharing - and as HHS makes its final decision - let's hope we take the next step in promoting contraceptive access and use.
Health reform promises a giant step forward for the country. For women, that step forward must include affordable access to contraception. But that will only happen if the IOM and HHS continue the progress begun by the EEOC ten years ago.
[i] Dailard, Cynthia. (March 2003). Special Analysis: The Cost of Contraceptive Insurance Coverage. Retrieved from http://www.guttmacher.org/pubs/tgr/06/1/gr060112.pdf.
[ii] Solanki, G and Schauffler, HH. (1999) Cost-sharing and the utilization of clinical preventive services. American Journal of Preventive Medicine, 17, no.2, 127-133.