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Judge Orders Coverage of Birth Control

TIMES STAFF WRITER

A federal judge ruled Tuesday that a Seattle drugstore chain must include female contraceptives in its health insurance coverage, the first decision of its kind and one that could influence employer-provided benefits at other companies.

Planned Parenthood sued the Bartell Drug Co. 11 months ago on behalf of pharmacy manager Jennifer Erickson in the first federal court challenge to an employer’s failure to cover birth control pills, Norplant, Depo-Provera, intrauterine devices and diaphragms. About 10.4 million women in the U.S. use birth control pills, but it is unclear how many could benefit from this ruling.

The suit charged that because Bartell provides comprehensive health insurance, failing to include the contraceptives constitutes discrimination under the federal Pregnancy Discrimination and Civil Rights acts.

U.S. District Judge Robert S. Lasnik agreed, granting Planned Parenthood’s request for summary judgment in lieu of trial.

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“Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered,” Lasnik wrote in his opinion.

Erickson, 27, said she hoped her victory would encourage other women to ask their employers to add contraceptives to health plans.

“It’s just not fair for women to be discriminated against,” she said. “And the cool thing is that’s what the judge thinks too.”

Erickson said she filed the suit after growing frustrated, as an employee and as a pharmacist, that her company and others refused to help pay for contraceptives.

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“When you’re a pharmacist, and you are filling prescriptions and your own pills aren’t covered, it’s kind of a no-brainer,” she said. “You have to do something.”

Bartell, which operates 50 stores in the Seattle area, said it provides generous health benefits to 1,600 employees and would move quickly to comply with the ruling. At the same time, the company will consider an appeal.

“It was never our intention to discriminate, and we had planned to offer contraceptive coverage well before this judgment,” Jean Bartell Barber, chief financial officer and granddaughter of the founder, said in a statement.

Erickson’s letter requesting contraceptive coverage was the first one the 111-year-old company had received, said spokesman Mike Murray, adding that it prompted the company to consider including such coverage.

“There has never been a court ruling that the exclusion of contraceptives is discrimination,” McMurray said. “So with no precedence, it’s just a brand new subject.”

The company added contraceptives for union workers in April. But a motion by Planned Parenthood thwarted the company’s plans to extend that coverage to nonunion employees, including Erickson, until the judge ruled.

“It’s clear that we were singled out by Planned Parenthood in this suit because we are recognized as a good employer,” Barber said.

Planned Parenthood lawyer Roberta Riley said she expects the Seattle decision to withstand any appeal and to influence employers as well as other courts.

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“It’s a decision that’s based on federal law, and this federal law applies to every company that has 15 or more employees anywhere in the country,” she said.

Women’s groups hailed the ruling as a triumph in the contraceptive coverage battles playing out in Congress, statehouses and courts.

“It sends a clear message to employers that if they are offering otherwise comprehensive health insurance to their employees, they can not exclude contraceptives,” said Judy Appelbaum, a vice president at the National Women’s Law Center.

But business groups said the decision could just as easily prompt employers to cut back on benefits to avoid having to add contraceptives.

“It is just one more wrinkle, one more mandate now that employers have to follow when they voluntarily provide health-care coverage for their employees,” said Randy Johnson, vice president of labor and employee benefit policy for the U.S. Chamber of Commerce. “It’s just another burr under the saddle that may drive employers away from voluntarily providing health-care coverage for their employees.”

The legal challenge, with its Web site (https://www.covermypills.com), is part of a broader effort to expand access to birth control that picked up steam after employers began covering the male impotency drug Viagra.

Birth control pills are covered by 87% of large HMOs and 60% of conventional, fee-for-service insurance plans, according to a national survey last year by the nonpartisan Kaiser Family Foundation, a Palo Alto-based health-care research organization.

According to Kaiser, 93% of women at risk of unintended pregnancy practice some form of contraception. Of those women, 27% use the birth control pill. By comparison, 28% prevent pregnancy through tubal ligation. Another 20% rely on condoms, 11% on vasectomies, 7% on rhythm and spermicides alone. Implants, Depo Provera and IUDs each account for less than 3% of contraceptive users.

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That translates into 10.4 million American women using the pill to prevent pregnancy, according to Planned Parenthood. “It’s in the employers’ best interest to provide basic health care to women because when women can plan and space their childbearing, it makes them more stable employees,” said Gloria Feldt, president of Planned Parenthood Federation of America.

Last year, California joined a dozen other states in requiring state-regulated insurance plans to include contraceptive coverage. Several states are expected to take up the issue this year.

Despite California’s mandate, a Riverside flight attendant complained to the Equal Employment Opportunity Commission in April that American Airlines Inc. failed to cover contraceptives.

The EEOC last year issued a nonbinding opinion that the Pregnancy Discrimination Act requires employers who provide comprehensive health plans to include contraceptives.

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