Covering Birth Control

Why one woman sued.

Medically Reviewed by Craig H. Kliger, MD
6 min read

Sept. 4, 2000 -- When Seattle pharmacist Jennifer Erickson returned to work in late July one day after filing a headline-grabbing lawsuit against her employer, the Bartell Drug Co., her female co-workers were ecstatic. "It was all high fives and 'You go, girl!' " Erickson says with a laugh. Her customers thanked her. Strangers who recognized her from interviews in the local and national media stopped her on the street.

So why is this 26-year old suing her own employer -- and getting so much attention and support from her co-workers and customers? Erickson is challenging one of the longest-standing disparities in medicine. She thinks it's wrong that the health insurance plans offered by so many companies across the country provide coverage for drugs like Viagra for men but don't cover birth control pills and other contraceptives. And she thinks changes are long overdue.

To try to close this gender gap, Erickson volunteered to be the lead plaintiff in a class action lawsuit filed last month by Planned Parenthood -- the first case ever seeking to force an employer to include contraceptives in its health plan. While the lawsuit targets only Bartell, it could pave the way for similar suits against every company in the United States that provides similar prescription coverage to its employees but fails to cover contraceptives.

"This problem affects millions of women all over the country," says Sylvia A. Law, a law professor at New York University. "Yet it's the first time the issue has ever been addressed in a court -- and it's high time." Law was the first to argue in a 1998 Washington Law Review article that excluding contraceptives from prescription coverage illegally discriminates against women under Title VII of the federal Civil Rights Act.

Three-quarters of American women of childbearing age rely on employer-sponsored plans for their health coverage, according to the Alan Guttmacher Institute, a research group that works to broaden access to family planning services. Yet half of all large group-insurance plans do not cover any form of prescription contraception, and only a third cover the Pill. While most HMOs do cover oral contraception, only about 40% cover all five of the FDA-approved prescription birth control methods available in this country.

Erickson's lawsuit aims to assist working women like herself -- those who are neither rich enough to easily pay for contraceptives themselves nor poor enough to qualify for help from the government. And while the young newlywed is new to activism, the role of crusader for women's rights seems to be coming quite naturally. "I'm very outgoing and outspoken," Erickson says. "It's easy for me to say, 'This is wrong, fix it.'"

Bartell has yet to file a response to the suit, but in a press statement the company defended its policy as "lawful and nondiscriminatory," noting that "no medical benefits program covers every possible cost." Company officials have not spoken with Erickson about the lawsuit. She says her working environment has remained friendly.

Erickson, who grew up in Lafayette, Ind., moved to Seattle in 1999. She has worked for Bartell for 18 months and was recently promoted to pharmacy manager. She says she loves her job and considers Bartell -- which operates a chain of 45 drugstores in Washington -- a progressive workplace. But she hates telling customers that their health plans don't cover the contraceptives they need. Even more, she hates watching them turn away angrily.

"One woman recently said to me, 'I have to make rent this month, I have five kids to feed, I can't afford to pay for birth control pills,' " Erickson says. "I want to say to her, 'Don't leave without these!' I feel so bad."

But Erickson's efforts aren't simply aimed at helping others. The fact that her own company's insurance plan doesn't cover contraceptives forces Erickson -- who says she's not ready to have children -- to pay $360 a year out-of-pocket for birth control pills.

While she can afford this expense, she thinks it's unfair that she has to. And there were times in the past when she couldn't. Like many women, she turned to Planned Parenthood, where she was a regular client and a strong supporter. So when representatives from the local chapter said they would help her file a complaint against Bartell with the Equal Employment Opportunity Commission last December, she didn't hesitate.

The resulting lawsuit has made waves for its landmark legal strategy. It charges that a company whose insurance plan covers most prescription drugs but excludes contraceptives violates federal discrimination laws because only women use prescription contraceptives.

Family planning advocates argue that excluding birth control from prescription coverage is not only discriminatory, it's also economically short-sighted. Contraception is far cheaper than the cost of either a pregnancy or an abortion. In 1996, the Health Insurance Association of America estimated it would cost about $16 per person to provide birth control coverage for members of group plans. Compare that to the average cost of an abortion: $316.

"Services for men get covered much quicker than services for women," says Judith DeSarno, president and CEO of the National Family Planning and Reproductive Health Association. It was only 25 years ago that insurance companies agreed to cover the cost of prenatal care. "There's a very clear pattern here," she says. "It's the nickel-and-diming of women's health."

A recent nationwide survey found that two-thirds of Americans want insurers to cover contraception. Currently 13 states have passed laws requiring health plans to pay for contraceptives if they cover prescription drugs to include contraceptives, and 21 states are considering such legislation. Federal legislation has been stalled in Congress since 1997.

The big problem with the state laws, says Roberta Riley, the Planned Parenthood attorney who filed the lawsuit, is that they generally don't apply to self-insured companies like Bartell, which put together their own medical coverage for their workers. Because self-insured companies account for half of all employer-sponsored health insurance, that leaves a large gap. And that, Riley says, was one reason Planned Parenthood decided it was time to go to court.

But before any lawsuit could be filed, the advocates needed a plaintiff who was willing to risk taking on her employer. They found one in Jennifer Erickson.

"Jennifer is a Rosa Parks; she has a sense of idealism and altruism," says Riley. "She's a very intelligent young woman, a thinking person. No doubt her experiences turning down women raised her awareness and motivated her to stand up and do something about it."

What also made her an ideal plaintiff is that "she's not disgruntled, she has no ax to grind with her employer about any other issue," says Riley. "She wants to pursue her career at Bartell Drugs, but she also wants this company to cover contraception and wants to change the law so all companies do so as well."

"It's hard to find a woman who will stand up to her boss for $30 a month -- the cost of birth control pills -- and risk her job for a principle," says Law.

Jennifer Erickson simply shrugs off the deluge of praise. "Stepping forward is not as hard as I thought it would be," she says. "When you really believe in something, it's easy to do."

Loren Stein, a journalist based in Palo Alto, Calif., specializes in health and legal issues. Her work has appeared in California Lawyer,Hippocrates,L.A. Weekly, and The Christian Science Monitor, among other publications.