SEATTLE—Will Catholic employers have to cover the birth control pill in theirs employee health plans?
Even after a federal court ruled on contraception coverage, no one knows.
On June 12, a U.S. District judge handed down the first federal ruling that an employer who refused to cover prescription contraceptives was guilty of sex discrimination.
The case, Erickson v. Bartell, concerned a Seattle-based drug company whose employee health plan covered abortions but not prescription contraceptives. Jennifer Erickson, a Bartell pharmacist, filed a sex-discrimination suit on the grounds that prescription contraceptives are only used by women.
But the case left more questions than it answered.
U.S. District Judge Robert S. Lasnik's decision said: “[W]hen an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.”
The point of contention is the Pregnancy Discrimination Act of 1978, which prohibits discrimination based on “pregnancy, childbirth, or related medical conditions.” In December, the Equal Employment Opportunity Commission ruled that this prohibition meant that two employers must cover contraceptives in their health plans. That decision does not affect any other companies, although Lasnik cited it as a precedent in his decision.
The ruling only applies to those employers who employ more than 15 people, and whose health plans cover preventative medicine.
The National Women's Law Center announced, “Employers who are not in compliance [with the ruling] risk private lawsuits like the Erickson case as well as EEOC enforcement action.”
The Center for Reproductive Law and Politics, a pro-abortion legal group, refused to comment for this story.
Religious Freedom at Stake
In his decision, Lasnik found the time to footnote Bob Dylan lyrics, but chose not to address the question most important to employers with religious reasons for excluding contraceptive coverage: How will this decision affect me?
As with the Equal Employment Opportunity Commission ruling, the new decision nowhere addresses how this law might affect employers with religious or moral objections to covering contraception.
William E. May, professor of moral theology at the John Paul II Institute in Washington, D.C., said that the ruling should have included “a conscience clause,” specifying that employers can follow their religious beliefs on contraception.
Without that clause, he warned, the ruling could lead to “coercing a Catholic company, like the Knights of Columbus,” to cover contraception. “That infringes on their religious liberty. It violates the First Amendment.”
Bartell Drugs claimed no moral objections to contraception, In fact, Jean Bartell Barber, the company's chief financial officer, issued a statement saying, “It was never our intention to discriminate and we had planned to offer contraceptive coverage well before this judgment.”
Barber added, “Last year we offered to provide prescription contraceptive coverage for Jennifer Erickson and other non-union employees.” Barber said that since April 1, the company has covered prescription contraceptive benefits for union employees.
Catholic employers have one thing going for them: the fact that they would not cover vasectomies. Thus men and women would equally lack contraceptive coverage. Again, none of the previous decisions have addressed this issue.
Judge Lasnik called contraception “a fundamental and immediate health care need.” According to his ruling, “The availability of affordable and effective contraceptives is of great importance to the health of women and children because it can help to prevent a litany of physical, emotional, economic and social consequences.”
That's simply not the case, said Mary Shivanandan, professor of theology at the John Paul II Institute. Far from making women equal, she said, “Contraception denies the fundamental integrity of the woman. The person is a unity of body and soul, and intrinsic to the woman as a person is her fertility.”
Shivanandan pointed out, “If she has to get rid of [her fertility] in order to participate in the world of work, this is not equality. A man doesn't have to get rid of his fertility in order to participate in the world of work.”
Furthermore, she added, “There are health risks” to contraception, which were not acknowledged by the court ruling. “All the hormonal contraceptives pose some kind of a risk,” Shivanandan said. “They can bring about dysplasia of the cervix, and that's a precursor of cancer.”
She noted that “even the prescription leaflets” for contraceptives mention some of the dangers. Employers who don't promote contraception are, in this way, actually acting for “the health of the woman,” according to Shivanandan.
But Catholic employers who refuse to cover contraception won't know whether what they are doing is illegal until a court decision finally addresses the issue.
And in the end, according to Bartell, there isn't yet an overwhelming demand for contraception coverage. “[T]he letter sent by Erickson requesting birth control coverage was the only letter ever received from an employee asking for that particular benefit.”