Sex discrimination and insurance for contraception

Washington Law Review

Volumn 73, Issue 2, 1998, Pages 363-402

  Law, Sylvia A ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONTRACEPTIVE AGENT;

ARTICLE; CONTRACEPTION; CONTRACEPTIVE DEVICE; ECONOMICS; FEMALE; GENETICS AND REPRODUCTION; HEALTH INSURANCE; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MEDICOLEGAL ASPECT; PENSION; PREGNANCY; PREGNANCY DISCRIMINATION ACT; REIMBURSEMENT; SOCIAL PSYCHOLOGY; STATISTICS; UNITED STATES; UNWANTED PREGNANCY; WOMEN'S RIGHTS;

GENETICS AND REPRODUCTION; LEGAL APPROACH; PREGNANCY DISCRIMINATION ACT;

CONTRACEPTION; CONTRACEPTIVE AGENTS; CONTRACEPTIVE DEVICES; EMPLOYEE RETIREMENT INCOME SECURITY ACT; FEMALE; HEALTH BENEFIT PLANS, EMPLOYEE; HUMANS; INSURANCE, HEALTH, REIMBURSEMENT; LEGISLATION, MEDICAL; PREGNANCY; PREGNANCY, UNWANTED; PREJUDICE; UNITED STATES; WOMEN'S RIGHTS;

EID: 0032216485     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. 42 U.S.C. § 2000e(k) (1994).
2. Institute of Medicine, The Best Intentions: Unintended Pregnancy and the Well-Being of Children and Families 1 (Sarah S. Brown & Leon Eisenberg eds., 1995) [hereinafter Best Intentions].
3. Elise F. Jones et al., Unintended Pregnancy, Contraceptive Practice and Family Planning Services in Developed Countries, 20 Fam. Plan. Persp. 53, 55 (1988).
4. Among teens, research suggests that one of the most important factors explaining the very high rates of unintended pregnancy in the United States is a general lack of candor about sexuality and conception, reflected in weak school-based sex education programs and the absence of frank discussions of contraception in the media, particularly in advertising. See Elise F. Jones et al., Teenage Pregnancy in Developed Countries: Determinants and Policy Implications, 17 Fam. Plan. Persp. 53, 54-58 (1985).
5. Alan Guttmacher Institute, Contraception Counts: State-by-State Information, May 1997, at 1.
6. See infra Part II.
7. Best Intentions, supra note 2, at 66-72.
8. In 1985, the U.S. infant mortality rate tanked nineteenth in the world, worse than countries such as Singapore and Spain. George J. Annas et al., American Health Law 924 (1990).
9. When comparing only the white U.S. infant mortality rate with other nations, the United States ranked fourteenth, worse than Japan and Hong Kong. George J. Annas et al., American Health Law Id.924 ( 1990).
10. The U.S. black infant mortality rate ranked twenty-eighth, behind countries with fewer medical and economic resources such as Cuba and Bulgaria, and equal to Costa Rica. George J. Annas et al., American Health Law Id.924 ( 1990).
11. In 1991, 7% of all infants in the United States were born too small, and 11% were born too soon. Patricia H. Shiono & Richard E. Behrman, Low Birth Weight: Analysis and Recommendations, 5 Future of Children 4, 4 (1995).
12. For example, the National Commission to Prevent Infant Mortality reported: "If all pregnancies were planned, infant mortality could be reduced by an estimated 10 percent and low birthweight by 12 percent." National Comm'n to Prevent Infant Mortality, Troubling Trends: The Health of America's Next Generation 38 (1990) [hereinafter Troubling Trends].
13. "The child of an unwanted conception especially (as distinct from a mistimed one) is at greater risk of being born at low birthweights, of dying in its first year of life, of being abused, and of not receiving sufficient resources for healthy development." Best Intentions, supra note 2, at 1.
14. See McRae v. Califano, 491 F. Supp. 630, 668-73, 690 (E.D.N.Y. 1980) (summarizing evidence that woman's attitude toward her pregnancy is extremely important factor in determining whether pregnancy poses threat to her life or health, and noting that woman who is unable and unwilling to bear children often experiences great stress in pregnancy, which adversely affects her medical condition).
15. See Born Unwanted: Developmental Effects of Denied Abortion 41 (Henry P. David et al. eds., 1988).
16. Id. at 42.
17. In 1993, the cost of oral contraceptives and associated physical exams was $1500 for five years, while the cost of Norplant was $700 for the same period. The cost of an IUD, which remains effective for eight years, was about $500. Alan Guttmacher Institute, Uneven & Unequal: Insurance Coverage and Reproductive Health Services 4 (1995) [hereinafter Uneven & Unequal]. By contrast, the cost of maternity care for a normal vaginal delivery was $4334 in 1989, and the cost of a Caesarean-section was $7186. Id. at 3.
18. In a study comparing medical costs of 15 contraceptive methods with no contraceptive method, it was found that regardless of the contraceptive method used, contraception saves money. James Trussell et al., The Economic Value of Contraception: A Comparison of 15 Methods, 85 Am. J. Pub. Health 494, 494 (1995). Over five years, the most cost-effective methods were the copper-T IUD, vasectomy, the contraceptive implant, and the injectable contraceptive, saving $14,122, $13,899, $13,813, and $13,373 respectively. Id. Oral contraceptives saved $12,879, and barrier methods, spermicides, withdrawal, and periodic abstinence saved $8933 to $12,239. Id. The researchers found that "savings generally are realized by third-party payers. . . . [B]usinesses and individuals receive an economic benefit if these savings yield lower premiums and increased profits or wages." Id. at 500;
19. see also Dona J. Lethbridge & Kathleen M. Hanna, Promoting Effective Contraceptive Use 12 (1997).
20. Annas et al., supra note 7, at 930 (citing Office of Technology Assessment, Healthy Children: Investing in the Future 85 (1988)).
21. Children's Defense Fund, The Health of America's Children: Maternal and Child Health Data Book 25 (1987).
22. Best Intentions, supra note 2, at 70.
23. Jeannie I. Rosoff, Not Just Teenagers, 20 Fam. Plan. Persp. 52, 52 (1988). The U.S. abortion rate is exceeded only by that in the developed countries of Eastern Europe and developing countries with strong population control policies. Of the developed countries, only the following have abortion rates higher than the U.S. rate of 27.5 per 100 pregnancies: Albania (31.2); Bulgaria (45.4); Czech Republic (33.5); Hungary (40.7); and Slovak Republic (32.4). In contrast, the following Western European countries have abortion rates much lower than the United States: England and Wales (19.0); Finland (13.3); Netherlands (9.6); and Scotland (15.0).
24. Alan Guttmacher Institute, Number of Legal Abortions, Abortion Rate and Abortion Ratio: Countries with Accurate Abortion Statistics tbl. 1 (Apr. 1997) (unpublished table, on file with Alan Guttmacher Institute);
25. see also Stanley K. Henshaw, Induced Abortion: A World Review, 22 Fam. Plan. Persp. 76, 78 (1990).
26. Jacqueline Darroch Forrest, Epidemiology of Unintended Pregnancy and Contraceptive Use, 170 Am. J. Obstetrics & Gynecology 1485, 1485 (1994).
27. Most women pay for abortions with cash in advance. In 1993, clinics charged an average of $341 for an abortion at 10 weeks with local anesthesia; abortion costs generally ranged from $140 to $1700. Stanley K. Henshaw, Factors Hindering Access to Abortion Services, 27 Fam. Plan. Persp. 54, 57 (1995). Furthermore, because 84% of U.S. counties have no abortion provider, women often must travel to obtain services.
28. Stanley K. Henshaw & Jennifer Van Vort, Abortion Services in the United States, 1991 and 1992, 26 Fam. Plan. Persp. 100, 100 (1994).
29. Often women seeking abortions must confront hostile and sometimes violent demonstrators. Stanley K. Henshaw, The Accessibility of Abortion Services in the United States, 23 Fam. Plan. Persp. 246, 250 (1991).
30. President's Remarks on Signing Memorandums on Medical Research and Reproductive Health and an Exchange with Reporters, 1 Pub. Papers 7 (Jan. 22, 1993).
31. Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992).
32. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975).
33. See The President's Council on Sustainable Development, Sustainable America: A New Consensus for Prosperity, Opportunity, and a Healthy Environment for the Future ch. 6 (1996).
34. Id. at 146.
35. Id. at 143.
36. Linda J. Piccinino & William D. Mosher, Trends in Contraceptive Use in the United States: 1982-1995, 30 Fam. Plan. Persp. 4, 5 (1998).
37. William D. Mosher & Christine A. Bachrach, Understanding U.S. Fertility: Continuity and Change in the National Survey of Family Growth, 1988-1995, 28 Fam. Plan. Persp. 4, 6 (1996).
38. Many women, especially younger women, who are sterilized come to regret their decision. Institute of Medicine, Contraceptive Research and Development: Looking to the Future 192 (Polly F. Harrison & Allan Rosenfield eds., 1996) [hereinafter Looking to the Future].
39. Across the range of insurance plans, on average 86% cover all forms of surgical sterilization, while 90% of point-of-service networks cover both male and female sterilization. Uneven & Unequal, supra note 13, at 9. The Alan Guttmacher Institute's 1995 study, Uneven & Unequal, was the first large-scale, comprehensive study of private insurance coverage of reproductive health care services in the United States. Id. at 5. The researchers distinguished four types of private health insurance. First, conventional indemnity plans reimburse a patient or a provider for covered services up to a specified dollar amount and account for 58% of insured employees. Second, a preferred provider organization (PPO) gives enrollees the option either to obtain care from a designated "preferred" provider or from an outside provider. An enrollee obtaining care from an out-of-network provider typically pays a higher cost-sharing amount. Third, in point-of-service plans, a primary physician acts as a gatekeeper to a network of specialists. Twenty-three percent of insured employees are enrolled in PPOs and similar point-of-service plans. Fourth, "[h]ealth maintenance organizations (HMOs) provide a defined, comprehensive set of health services to an enrolled population within a specified geographic service area. Providers are typically reimbursed on a capitated or other 'at risk' arrangement." Id. Nineteen percent of employees were enrolled in HMOs. Id.
40. See Rosoff, supra note 17, at 52.
41. Roberto Rivera, Oral Contraceptives: The Last Decade, in Contraceptive Research and Development: 1984 to 1994: The Road from Mexico City to Cairo and Beyond 24 (P.F.A. Van Look & G. Pérez-Palacios eds., 1994) [hereinafter Contraceptive Research and Development].
42. See Piccinino & Mosher, supra note 27, at 5.
43. The contraceptive pill has been subject to more studies to identify serious side effects than any other medicine in history. Sharon Snider, The Pill: 30 Years of Safety Concerns, FDA Consumer, Dec. 1990, at 8, 9. Over the years, scientists and drug companies have developed new formulations with lower doses. Pills marketed today have little effect on the risks of heart disease or stroke in healthy women who do not smoke.
44. Sharon Snider, The Pill: 30 Years of Safety Concerns, FDA Consumer, Id.1990, 8, While the relation between any drug and cancer is difficult to evaluate, the pill appears not to increase the risk of breast cancer and reduces the risk of cancer of the ovaries and of the endometrium; it may, however, increase the risk of uterine cancer. Rivera, supra note 32, at 30-32.
45. The pill is less effective in actual use than in controlled settings because women must remember to use it every day. Robert A. Hatcher et al., Contraceptive Technology 119 (16th rev. ed. 1994).
46. Only 31% of non-HMO insured plans with less than 15 employees include coverage for pills. Only 32% of plans with less than 100 employees, and 33% of plans with more than 100 employees include coverage. Uneven & Unequal, supra note 13, at 9. However, between 95% and 97% of these plans include coverage for other prescription drugs. Id. By contrast, 89% of HMOs include prescription drug coverage and 84% of them cover contraceptive pills. Id.
47. Christina Wang et al., Male Contraception: 1993 and Beyond, in Contraceptive Research and Development, supra note 32, at 121, 122-28. Both national and international agencies have conducted clinical trials on the suppression of sperm production by hormonal methods. These methods, however, have several problems, including lower efficiency in Caucasian men, the need for several months of treatment before the effects are induced, and relatively high cost. Id. at 125.
48. The National Academy of Science reports that among couples who are married or in "union," 14.6% rely upon condoms and 5.7% use diaphragms. Looking to the Future, supra note 29, at 172-73.
49. Stanley K. Henshaw & Kathryn Kost, Abortion Patients in 1994-1995: Characteristics and Contraceptive Use, 28 Fam. Plan. Persp. 140, 146 (1996). Among typical users in 1988, 16% of couples using condoms experienced an unwanted pregnancy within the first year of use. Hatcher et al., supra note 34, at 115. A 1996 study by the Institute of Medicine reports an average one-year failure rate of 3% for combined oral contraceptives and 12% for condoms.
50. Looking to the Future, supra note 29, at 96, 98.
51. Between 19% and 21% of indemnity plans cover diaphragms, while 23% of PPOs and 81% of HMOs do so. Uneven & Unequal, supra note 13, at 9.
52. Katherine Treiman et al., IUDs - An Update, Population Rep., Dec. 1995, at 1, 25.
53. See Irving Sivin, IUDs: A Look to the Future, in Contraceptive Research and Development, supra note 32, at 37, 39-44.
54. Patricia Cohen, The IUD: Birth-Control Device That the U.S. Market Won't Bear, Wash. Post, Aug. 6, 1996, at A1. The unavailability of the IUD is influenced by the fact that an early version of the device, the Dalkon Shield, was marketed aggressively and later found highly defective. Many women were injured, suits ensued, and the manufacturer declared bankruptcy.
55. See generally Richard B. Sobol, Bending the Law: The Story of the Dalkon Shield Bankruptcy (1991).
56. Uneven & Unequal, supra note 13, at 9.
57. See Sheldon Segal, A New Delivery System for Contraceptive Steroids, 157 Am. J. Obstetrics & Gynecology 1090 (1987).
58. Albert George Thomas Jr. & Stephanie M. LeMelle, The Norplant System: Where Are We in 1995, 40 J. Fam. Prac. 125, 125 (1995).
59. See Rosemarie Thau & Ann Robbins, New Implant Systems for Men and Women, in Contraceptive Research and Development, supra note 32, at 91, 92.
60. Only 23% of insured plans with less than 100 employees cover Norplant, while 27% of self-insured plans and PPOs do so. Uneven & Unequal, supra note 13, at 9.
61. See supra note 13 (discussing costs).
62. Birth Control Implant Gains Among Poor Under Medicaid, N.Y. Times, Dec. 17, 1992, at A1. Women who do not qualify as poor generally obtain contraceptive services from private physicians. Poorer women rely upon clinics. In 1994, almost 6.6 million women received contraceptive services from more than 7000 subsidized family planning clinics.
63. Jennifer J. Frost, Family Planning Clinic Services in the United States, 1994, 28 Fam. Plan. Persp. 92, 92 (1996). A variety of programs provide public financial support for family planning: Medicaid, federal funds provided under Title X of the Public Health Service Act, and state and local grants. Title X is the popular name for the Family Planning Services and Population Research Act of 1970, Pub. L. No. 91-572, 84 Stat. 1506 (codified at 42 U.S.C. §§ 300-300a-8 (1994)). Through block grants to states, Title X allocates funds to qualified family planning providers. The congressional purpose behind Title X was "to make comprehensive, voluntary family planning services, and information relating thereto, readily available to all persons." 116 Cong. Rec. 24,094 (1970). In 1994, more than 85% of all U.S. counties had a least one clinic providing subsidized family planning services, and nearly three-quarters had at least one Title X-funded provider. Frost, supra at 97. Nonetheless, subsidized family planning clinics serve, on average, only 44% of all low-income, sexually-active women who need subsidized contraceptive services. In some states, family planning clinics serve more than 75% of all women in need, whereas in other states, they serve fewer than 30% of such women. Id. at 100.
64. Uneven & Unequal, supra note 13, at 12.
65. Ninety-seven percent of indemnity plans cover prescription drugs, but only 33% of such plans cover oral contraception. Ninety-nine percent of PPOs cover prescription drugs, but only 41% cover contraception. Uneven & Unequal, supra note 13, at 16.
66. See supra notes 30 (sterilization), 35 (oral contraception), 39 (diaphragms), 43 (IUDs), 47 (Norplant) and accompanying text.
67. Further, while condoms are useful in preventing sexually transmitted diseases, as a form of birth control they are far less reliable than pills, Norplant, or IUDs. Among abortion patients who were using a method of contraception during the month they became pregnant, the condom was the method most commonly used. Henshaw & Kost, supra note 38, at 146.
68. See supra note 30 and accompanying text.
69. See supra note 51.
70. Typical employment-based health insurance plans of all forms exclude coverage for services, drugs, and devices that are for "pre-existing conditions," Rand E. Rosenblatt et al., Law and the American Health Care System 282-83 (1997), or are "experimental," id. at 211-15, 238-44, or "not medically necessary," id. at 147-59, 224-29. Obviously, insurance plans that cover prescription drugs do not pay for over-the-counter drugs and cosmetics not prescribed by a physician. In addition, these plans typically impose deductibles and co-insurance requirements.
71. See Sylvia A. Law & Barry Ensminger, Negotiating Physicians' Fees: Individual Patients or Society? (A Case Study in Federalism), 61 N.Y.U. L. Rev. 1, 8 n.34 (1986). This Article does not address these common limitations on insurance coverage, except insofar as employers and insurers impose greater limits on payment for contraceptive services than are imposed on other medical services.
72. For example, General Electric's insurance plan included coverage for services "such as prostatectomies, vasectomies, and circumcisions that are specific to the reproductive system of men." General Elec. Co. v. Gilbert, 429 U.S. 125, 152 (1976) (Brennan, J., dissenting).
73. 42 U.S.C. § 2000e-2(a)(1) (1994).
74. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). See generally Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1079 (1983) (finding that there is "no question" that deferred compensation plan constitutes condition or privilege of employment, and retirement benefits are compensation under Title VII).
75. See, e.g., Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971).
76. Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 681 (8th Cir. 1996); see also Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977) (invalidating height and weight requirements for prison guards that disproportionately excluded women and were not correlated to amount of strength "essential to good job performance").
77. The Reagan Administration argued that claims of discrimination on the basis of pregnancy could not be based on a theory of disparate impact, but courts have rejected that claim. See, e.g., Scher v. Woodland Sch. Community Consol. Dist. No. 50, 867 F.2d 974 (7th Cir. 1988) (finding disparate impact where employer applied rule against combination of paid sick leave and unpaid leave more strictly to pregnant workers than non-pregnant workers).
78. Women's Research and Education Institute, Women's Health Insurance Costs and Experiences 2 (1994).
79. Id. at 6.
80. Id. at 10-11.
81. Dothard, 433 U.S. at 331-32.
82. See Law & Ensminger, supra note 56, at 59-60.
83. Geduldig v. Aiello, 417 U.S. 484 (1974).
84. General Elec. Co. v. Gilbert, 429 U.S. 125, 145-46 (1976).
85. Id. at 134-38 (quoting Geduldig, 417 U.S. at 496-97).
86. Id. at 138 (quoting Geduldig, 417 U.S. at 496-97).
87. Pub. L. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e(k) (1994)); see also California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 277 n.6 (1987); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 670-71 n.1 (1983).
88. 42 U.S.C. § 2000e(k). The full text of subsection (k) states: The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen for an abortion: Provided, that nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
89. U.S.C. § 2000e(k).
90. 42 U.S.C. § 2000e(k).
91. 42 U.S.C. § 2000e(k).
92. 462 U.S. 669 (1983).
93. Id. at 687-88 (Rehnquist, J., dissenting) (quoting 42 U.S.C. § 2000e(k)) (emphasis added).
94. Id. at 686 (Rehnquist, J., dissenting).
95. Id. at 684.
96. Id.
97. Id. at 678 n.14.
98. 499 U.S. 187 (1991).
99. Id. at 206.
100. Id. at 199.
101. Id.
102. General Elec. Co. v. Gilbert, 429 U.S. 125, 161 n.5 (1976) (Stevens, J., dissenting).
103. Id. at 161-62 n.5 (Stevens, J., dissenting).
104. Id. (Stevens, J., dissenting).
105. For a summary of the legislative history expressly approving the views of the dissenting Justices, see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 679 n.17 (1983).
106. See id. at 684 ("The 1978 Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions."); see also cases cited infra notes 96-97, 107.
107. 42 U.S.C. § 2000e(k) (1994).
108. 42 U.S.C. § 2000e(k).
109. 42 U.S.C. § 2000e(k).
110. 42 U.S.C. § 2000e(k).
111. 858 F. Supp. 1393 (N.D. Ill. 1994).
112. 911 F. Supp. 316 (N.D. Ill. 1995).
113. Erickson, 911 F. Supp. at 317-18; Pacourek, 858 F. Supp. at 1396.
114. Erickson, 911 F. Supp. at 319; Pacourek, 858 F. Supp. at 1400-02.
115. Pacourek, 858 F. Supp. at 1401.
116. H.R. Rep. No. 95-948, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 4745, 4753.
117. 123 Cong. Rec. 29, 385 (daily ed., Sept. 15, 1977) (statement of Sen. Williams).
118. 124 Cong. Rec. 38, 574 (daily ed., Oct. 14, 1978) (statement of Rep. Sarasin).
119. 42 U.S.C. § 2000e(k) (1994) (emphasis added).
120. Pacourek, 858 F. Supp. at 1402.
121. 29 C.F.R. app. § 1604 (1997) ("An employer cannot discriminate in its employment practices against a woman who has had an abortion.").
122. 85 F.3d 1211, 1214 (6th Cir. 1996).
123. Id.
124. Primary care providers have long sought the opportunity to intervene early in the course of diseases or even before their onset, and the benefits of incorporating prevention into medical practice have become increasingly apparent over the past 20 to 30 years. See generally U.S. Dep't of Health & Human Servs., Healthy People 2000: Midcourse Review and 1995 Revisions 3 (1996) (summarizing measures to avoid premature death, serious illness, and chronic disability).
125. See Paul S. Frame et al., U.S. Preventive Services Task Force: Highlights of the 1996 Report, 55 Am. Fam. Physician 567 (1997). For example, most employment-based insurance plans cover mammography to detect breast cancer, although different policies pay on different terms based on cost-benefit assessments.
126. See generally David M. Eddy, Rationing Resources While Improving Quality: How to Get More for Less, 272 J. Am. Med. Ass'n 817 (1994) (assessing costs and benefits of covering various preventive services).
127. Estrogen replacement therapy to forestall osteoporosis and other diseases is the most commonly prescribed treatment in the United States. See IMS America, IMS Reports New Products, Patent Expirations and DTC Advertising Prompt Shifts in 1997 U.S. Pharmaceutical Rankings (Feb. 26, 1988) 〈http://vvww.ims-america.com/communications/pr_rank.htm〉 ("In terms of prescriptions dispensed, American Home's estrogen replacement drug, Premarin, held its lead spot in 1997....").
128. For other discussions of estrogen's role in disease prevention, see OnHealth, Estrogen, Bones & Breast Cancer (Nov. 26, 1996) 〈http://www.healthnet.ivi.com/hnews/9611/htm/ estrogen.htm〈,
129. OnHealth, Hormone Replacement and Alzheimer's (Sept. 20, 1996) 〈http://www. healthnet.ivi.com/hnews/9609/htm/hormone.htm〉,
130. and OnHealth, Hormone Therapy: A Lifesaver? (Feb. 13, 1995) 〈http://www.healthnet.ivi.com/hnews/9602/htm/lifesave.htm〉.
131. 463 U.S. 1073 (1983).
132. Id. at 1090.
133. Title VII applies to employers with 15 or more employees and "any agent" of the employer. 42 U.S.C. § 2000e(b) (1994).
134. See, e.g., Colo. Rev. Stat. Ann. § 24-34-402(1)(e) (West 1990). ("It shall be a discriminatory or unfair employment practice: for any person, whether or not an employer . . . [t]o aid, abet, incite, compel, or coerce the doing of any act [that violates the employment discrimination laws].").
135. 759 P.2d 1358 (Colo. 1988).
136. Id. at 1360.
137. Id.
138. Id. The court stated further, "Travelers cannot avoid responsibility for conduct aiding and abetting a discriminatory act on the ground that it had no intent to discriminate." Id. at 1369.
139. See infra notes 160-61 and accompanying text.
140. 42 U.S.C. § 2000e-1(a) (1994).
141. 42 U.S.C. § 2000e-2(e)(1).
142. Pime v. Loyola Univ., 585 F. Supp. 435, 441-43 (N.D. Ill. 1984), aff'd, 803 F.2d 351 (7th Cir. 1986).
143. Dolter v. Wahlert High Sch., 483 F. Supp. 266 (N.D. Iowa 1980). The court also noted that there was a triable question whether males who engaged in premarital intercourse in violation of the church's moral code were likewise discharged. Id. at 270 n.5; see also EEOC v. Pacific Press Publ'g Ass'n, 482 F. Supp. 1291, 1300 (N.D. Cal. 1979) (rejecting defense made by religious publishing house against unlawful retaliation claim that discharge was effected because plaintiff was "unresponsive to spiritual counsel"), aff'd, 676 F.2d 1271 (9th Cir. 1982).
144. Barbara Lindemann & Paul Grossman, 1 Employment Discrimination Law 255 (3d ed. 1996). For example, in EEOC v. Fremont Christian School, the court invalidated a health insurance benefit plan that, because of a religious belief that the male was the head of household, provided benefits only to single persons and married men. 781 F.2d 1362, 1366 (9th Cir. 1986). The court found that this policy did not fit within Title VII's narrow religious exemption and emphasized that Title VII exempts religious employers "only with respect to discrimination based on religion, and then only with respect to persons hired to carry out the employer's 'religious activities.'" Id. The court also held that the BFOQ exception "does not apply to the full range of possibly discriminatory employment actions," as the statute uses only the terms "hire" and "employ." Id.
145. United States v. Lee, 455 U.S. 252, 260 (1981); see also Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995) (denying self-employed social security tax exemption to taxpayer who had religious objections to social security), cert. denied, 516 U.S. 1042 (1996).
146. Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), cert. denied sub nom. Goehring v. del Junco, 117 S. Ct. 1335 (1997); see also St. Agnes Hosp. of Baltimore v. Riddick, 748 F. Supp. 319 (D. Md. 1990) (holding withdrawal of hospital accreditation for refusal to provide family planning training did not violate hospital's religious freedom).
147. See Bruce G. Davis, Defining the Employment Rights of Medical Personnel Within the Parameters of Personal Conscience, 3 Det. C.L. Rev. 847, 868 (1986).
148. Id. at 853-54; see also Pierce v. Ortho Pharm. Corp., 417 A.2d 505 (1980) (holding that physician's moral refusal to work on drug developed by Ortho was not justified).
149. See, e.g., Rosenblatt et al., supra note 56, at 243-44.
150. Uneven & Unequal, supra note 13, at 12.
151. Rosenblatt et al., supra note 56, at 243-44. For example, Susan C. Rosenfeld, former general counsel of the Memorial Sloan Kettering Cancer Center and a breast cancer patient and prospective HMO enrollee, telephoned six major HMOs in New York City in 1994 to ascertain their policies regarding breast cancer treatment. One eventually responded. The others refused to supply contracts or to disclose exclusions. One representative volunteered: "You don't know [what is covered] until you actually hand in that claim form." Id. at 244 (citing Susan C. Rosenfeld, So You Want to Join an H.M.O.? Good Luck, N.Y. Times, Aug. 9, 1994, at A23). When Janet Benshoof, President of the Center for Reproductive Law and Policy, read the 1995 Alan Guttmacher Institute study, she asked the Center's insurer to give her information about coverage for contraception and other reproductive health services. Even as an employer, she discovered information was still hard to obtain. Eventually, Benshoof learned that her organization's health insurer excluded coverage for all contraception except three generic formulas for birth control pills only available by mail order. The Center has set up a self-insured program to cover these costs. Interview with Janet Benshoof, President, Center for Reproductive Law and Policy, New York (May 5, 1997). In 1997, Cary LaCheen, who joined the NYU Law Faculty after a career fighting insurance discrimination against people with disabilities, attempted to obtain information about the benefits package provided to NYU employees by Oxford Health Plans. Despite the fact that managed care plans in New York are required by N.Y. Pub. Health Law § 4408(1) to provide extensive information to both enrollees and prospective enrollees on their benefits packages, she was unable to obtain this information after oral and written requests to both NYU and Oxford. Only after filing complaints with the New York State Department of Insurance and the New York State Department of Health did she receive such information. The New York State Department of Health subsequently issued a Statement of Deficiencies to Oxford based on her complaint. If a seasoned advocate had such difficulty obtaining basic information on a health plan's coverage limits and exclusions, it is fair to assume that most individuals, who have less knowledge of the law requiring such disclosure, do as well. Interviews with Cary LaCheen, Lawyering Instructor, NYU Law School, New York (June 3, 1997 & Sept. 9, 1997); see also infra note 134.
152. Under ERISA, employees are entitled to a summary describing their employee benefit plans "written in a manner calculated to be understood by the average plan participant, and . . . sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." 29 U.S.C. § 1022(a)(1) (1994). Employers who fail to comply with this requirement "may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper." 29 U.S.C. § 1132(c)(1) (1994).
153. In 1996, for example, the New York State Legislature passed an act providing: Each subscriber, and upon request each prospective subscriber prior to enrollment, shall be supplied with written disclosure information . . . . The information to be disclosed shall include at least the following: (a) a description of coverage provisions; health care benefits; benefit maximums, including benefit limitations; and exclusions of coverage, including the definition of medical necessity used in determining whether benefits will be covered. N.Y. Pub. Health Law § 4408(1) (McKinney Supp. 1998).
154. See supra note 132.
155. See supra note 132.
156. C.f., e.g., Bushman v. State Mut. Life Assurance Co. of Am., 915 F. Supp. 945, 953 (N.D. Ill. 1996) (lamenting that court was forced to deny coverage for respected, mainstream, life-saving medical care because it was excluded in health insurance policy that claimant had never been able to see). In Bushman, the insurance company did not send the policy to the employer until three months after it went into effect Id.; see also Hilliard v. BellSouth Med. Assistance Plan, 918 F. Supp. 1016 (S.D. Miss. 1995) (denying preliminary injunction forcing insurance company to pay for high dose chemotherapy for multiple myeloma when plaintiff had chosen plan that did not cover procedure, even though that choice had not been explained to him). While the issue has not been addressed specifically, it seems that the fact that some of the plans offered by an employer do not discriminate on the basis of sex should not defeat a challenge to an employment-based health insurance plan that does discriminate. Despite the fact that a particular plan includes discriminatory coverage provisions, the plan might be attractive to an employee for a variety of reasons, such as because a long-time physician is a member of the plan's network. Title VII does not include a general defense based on the employee's ability to avoid sex discrimination by picking a different job or a different benefit program. See supra notes 115-19 and accompanying text (explaining that insurance company cannot defend against state law violation of aiding and abetting employer discrimination on ground that insurer offered employer both discriminatory and non-discriminatory policies).
157. Title VII relies "on the private suit as a principal enforcement vehicle." Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship 868 (1990).
158. 42 U.S.C. § 2000e-5(k) (1994) ("In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . .").
159. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 730 (1987). The risk of losing a lawsuit is not "an independent basis for increasing the amount of any otherwise reasonable fee for the time and effort expended in prevailing." Id. at 725.
160. For example, the Center for Reproductive Law and Policy (CRLP) has challenged dozens of state restrictions on Medicaid funding and restrictive informed consent laws, particularly for minors. It persuaded the FDA to recognize the emergency use of contraceptive pills, defended testing for RU-486, and challenged restrictions on birth control information on the internet. See Center for Reproductive Law & Policy, Press Advisory (Mar. 9, 1998) (challenging Florida partial-birth abortion bill) (on file with Washington Law Review);
161. Center for Reproductive Law & Policy, Reproductive Freedom News (visited Apr. 2, 1998) 〈http://www.echonyc.com/~comstop/〉 (citing CRLP articles discussing internet issues);
162. Center for Reproductive Law & Policy, Women of the World: Formal Laws and Policies Affecting Their Reproductive Lives (1995) (visited Apr. 2, 1998) 〈http://www.echonyc.com/~jmkm/wotw/〈 (discussing women's reproductive rights issues in United States and abroad). During the 1996 U.S. Supreme Court term, the NOW Legal Defense and Education Fund (LDEF) filed over a dozen briefs on issues including anti-abortion violence, child support enforcement, employment discrimination, and peer sexual harassment in schools.
163. See NOW Legal Defense & Education Fund, 1996-1997 Legal Docket (1997). NOW LDEF has devoted enormous resources to protecting access to abortion clinics and challenging laws that penalize poor women who have children.
164. The National Abortion and Reproductive Rights Action League (NARAL) worked to discourage Congress from adopting a criminal prohibition on late-term abortions. See National Abortion & Reproductive Rights Action League, Abortion Rights: Late Term Abortion Ban (visited Apr. 2, 1998) 〈http://www.naral.org/issues/lateterm.html〉 (listing NARAL sites addressing late-term abortions);
165. see also National Abortion & Reproductive Rights Action League, 1998 Summary of Findings on Reproductive Rights in the States (visited Apr. 2, 1998) 〈http://www.naral.org/ publications/whod98summary.html〉 (summarizing state-by-state review of abortion and reproductive rights).
166. Other groups, including the Reproductive Freedom Projects of the American Civil Liberties Union and the New York Civil Liberties Union have worked to assure that medical students and Ob.-Gyn. residents have opportunities to learn how to perform abortions, and monitored hospital mergers so abortion services would not disappear from a particular community or state. See ACLU Reproductive Freedom Project, Biennial Report 1996-97, at 11 (on file with Washington Law Review);
167. see also American Civil Liberties Union, The ACLU Reproductive Freedom Project (visited Mar. 9, 1998) 〈http://www.aclu.org/issues/reproduct/about.html〉 (describing Reproductive Freedom Project work);
168. New York Civil Liberties Union, NYCLU Reproductive Rights Project fact sheet (on file with Washington Law Review) (describing project).
169. At the end of 1994, the EEOC had about 100,000 unresolved claims of race and sex discrimination lawsuits pending, twice its 1992 backlog. Peter T. Kilborn, A Family Spirals Downward in Waiting for Agency to Act, N.Y. Times, Feb. 11, 1995, at A1. In recent years, the EEOC has won substantial settlements in sexual harassment suits against Mitsubishi and Del Laboratories.
170. See Carey Goldberg, Company to Pay Record Amount in L.I. Sexual Harassment Case, N.Y. Times, Aug. 3, 1995, at A1;
171. Andrew Pollck, Mitsubishi Wants Settlement of U.S. Sexual Harassment Suit, N.Y. Times, Apr. 25, 1996, at D1.
172. Congress explicitly limited the EEOC's regulation-issuing powers to procedural matters. See 42 U.S.C. § 2000e-12(a) (1994); see also General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) ("Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title.") (citation omitted).
173. For an excellent discussion of this commonly used EEOC process, see Alfred W. Blumrosen, The Binding Effect of Affirmative Action Guidelines, 1 Lab. Law. 261 (1985).
174. See 29 C.F.R. § 1601.91 (1997) ("Any interested person desiring a written Title VII interpretation or opinion from the Commission may make such a request.").
175. The out-of-pocket costs of contraceptives are most burdensome for poor women. In recent years, advocates for the poor have had a full plate of work seeking Medicaid and Title X funding for family planning services. Nonetheless, these programs are limited and most women with incomes below the federal poverty line do not qualify for federally financed contraceptives. Frost, supra note 49, at 98; see also supra note 49 (discussing Title X).
176. Title VII only applies to employment-related insurance policies. See, e.g., Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980) (explaining that Title VII applies only where there is some connection with employment relationship).
177. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983). The court held that employers are not required to provide any coverage for spouses, but to the extent that they do, they may not discriminate against pregnancy-related conditions. Id. at 683-84. Disfavorable treatment of a spouse's pregnancy-related condition would constitute prohibited sex-based discrimination against the male worker. Id.; see also 29 C.F.R. app. § 1604.10 (1997).
178. One of the issues in Newport News was a colloquy in the legislative history of the PDA. Compare Newport News, 462 U.S. at 678-82, with id. at 691-93 (Rehnquist, J., dissenting). While no one in Congress opposed the basic concept of the Act, some Senators, led by Senator Hatch, offered limiting amendments. Senator Hatch observed that the language of the first section, prohibiting discrimination against "women affected by pregnancy, childbirth or related medical conditions" was very broad. Id. at 692 (Rehnquist, J., dissenting) (citing 123 Cong. Rec. 29,643 (1977)). Senator Hatch asked, "[W]hat about the status of a woman coworker who is not pregnant but rides with a pregnant woman and cannot get to work once the pregnant female commences her maternity leave or the employed mother who stays home to nurse her pregnant daughter? Are they women 'affected by' pregnancy?" Id. at 681 (citing Cong. Rec. 29,644). Senator Williams, the lead sponsor of the bill, protested that the PDA would not cover those situations. Senator Hatch concluded by asking, "[T]his act only applies to the particular woman who is actually pregnant, who is an employee and has become pregnant after her employment?" Id. at 693 (Rehnquist, J., dissenting) (citing Cong. Rec. 29,644). Senator Williams responded, "Exactly." Id. (Rehnquist, J., dissenting) (citing Cong. Rec. 29,644). Apparently relying upon this legislative history, the EEOC guidelines do not require equal treatment of workers' male and female children. They provide: "[I]nsurance does not have to cover the pregnancy-related conditions of other dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. app. § 1604.10 Thus, EEOC guidelines appear to allow an employer to provide comprehensive health insurance for workers' dependent male children and no coverage for female children, or visa versa, so long as the children of male and female workers are treated in an equally discriminatory way. This interpretation of Title VII and the PDA seems inconsistent with the larger remedial purpose of the law. All women are hurt when female dependents are denied coverage for pregnancy-related services. The fact that the daughters of male workers as well as female workers are equally disadvantaged does not make the sex-based discrimination acceptable.
179. Teenagers in the United States experience higher rates of unintended pregnancy than those in most other developed countries. See Jones et al., supra note 4, at 54. While mass media and culture encourage sex, U.S. teens have less access to contraceptive information and services than teens in other countries. Id.
180. See discussion supra Part II.
181. See, e.g., Uneven & Unequal, supra note 13;
182. Center for Reproductive Law & Policy, Improving Access to Contraception: A Plan for Action (1997) (on file with author); Center for Reproductive Law & Policy Contraceptive Conference, New York, N.Y. (July 18-20, 1997).
183. See Dana Wilkie, Birth Control Benefits Bill Vetoed: Measure Sought to Reduce Unwanted Pregnancies, San Diego Union-Tribune, Oct. 18, 1995, at A3. In 1997, one newspaper reported that contraceptives: remain the one class of federally approved drug benefits most frequently refused coverage by health insurers across the country. That omission has inspired legislation supported by more than two dozen women's groups and medical associations who want to make contraceptive coverage universal in every group or individual policy issued in California.
184. Catherine Bridge, Contraceptive Drug Coverage Could Be a Health-Plan "Must," Sacramento Bee, June 30, 1997, at IB10. Some California legislators have asserted that contraceptives are cheap and women can always pay for them out of pocket. Interview with Kathy Kneer, Executive Director, Planned Parenthood Affiliates of California (Apr. 20, 1998). Others have suggested that women could pay for contraceptives with credit cards. Any medical service can, of course, be charged to a credit card, but most people prefer insurance. Yet others suggested that contraception is similar to hair spray and should be financed out of pocket. But contraception costs much more than hair spray. Moreover, contraceptives are prescription drugs, while hair spray is not. Finally, the adverse consequences of unwanted pregnancy are much greater than the consequences of un-sprayed hair. Id. In 1995 and 1998, Governor Pete Wilson vetoed bills that would have required coverage for contraception.
185. See Dan Bernstein, Contraceptive Coverage Mandate Vetoed, Sacramento Bee, Feb. 12, 1998, at A3.
186. See David Ress, Birth Control Insurance Bill Dealt Setback; State Study Commission Votes Against Mandating Coverage, Richmond Times Dispatch, Sept. 20, 1996, at B6. In 1996, one house of the Virginia legislature passed laws to require both public and private employers to provide insurance coverage for contraception. In 1997, however, Virginia adopted weakened laws requiring public and private employers simply to offer coverage for contraception if the woman is willing to pay an additional premium. See Va. Code Ann. §§ 2.1-20.1, 38.2-3407.5:1 (Michie Supp. 1997);
187. see also Patrick Lee Plaisance, Insurance Law on Birth Control Raises Questions, Newport News Daily Press, Sept. 4, 1997, at 1.
188. In 1996 and 1997, the New York State Assembly passed a bill requiring that all insurers providing prescription coverage also provide equal coverage for contraceptive prescriptions. Although a similar bill was introduced in the State Senate, it was never considered. Planned Parenthood of New York City, Planned Parenthood of New York City Supports the Equity in Prescription Insurance and Contraceptive Coverage Act of 1998 (on file with Washington Law Review).
189. See Jonathan Rabinovitz, Connecticut Lawmakers Try Again to Force Health Insurers to Pay for Birth Control, N.Y. Times, Feb. 25, 1998, at B5.
190. For example, in Virginia, George H. Heilig, Jr., Chair of the House Corporations, Insurance and Banking Committee and of a commission on mandated benefits, said, "[I]t does take away [the] choice the employer has in designing policies and from individuals in buying policies." Ress, supra note 154, at B6.
191. This was the principal reason cited by Governor Pete Wilson when he vetoed the California bill that would have required insurers to cover contraceptives to the same extent they cover other prescription drugs. Statelines California: Women's Groups Denounce Contraception Veto, Health Line (Am. Political Network), Oct. 23, 1995, available in Westlaw (10/23/95 APN-HE 8).
192. See supra notes 13 (contraception), 19 (abortion), and text accompanying note 15 (low birth weight babies).
193. Wilkie, supra note 153, at A3; see also Planned Parenthood Affiliates of California, AB 160 - Action Alert!!! Tell the Governor: "Sign AB 160 - My Conscience Needs Protection, Too!, " Jan. 29, 1998 (on file with Washington Law Review).
194. See supra Part III.B.3.
195. 29 U.S.C. §§ 1001-1461 (1994).
196. A central purpose of ERISA preemption is to protect employee benefit plans "by eliminating the threat of conflicting and inconsistent State and local regulation." Shaw v. Delta Airlines, 463 U.S. 85, 99 (1983) (citation omitted).
197. ERISA provides that it "shall [not] be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law." 29 U.S.C. § 1144(d). It also prohibits states from requiring employee benefit plans to cover particular medical conditions or services. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985).
198. Metropolitan Life, 471 U.S. at 744.
199. In 1995, a unanimous U.S. Supreme Court held that ERISA does not preempt state laws, including hospital rate regulations, that have only an "indirect" impact on ERISA plans. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 660-62 (1995). While Travelers gives an important green light to state regulation of ERISA plans, that case and those that followed have consistently suggested that state laws mandating the inclusion of particular benefits in employee benefit plans are not similarly free from ERISA preemption. In Travelers, the Court distinguished state "mandates affecting coverage," suggesting that ERISA would preempt such laws. Id. at 657. In De Buono v. NYSA-ILA Medical & Clinical Services Fund, the Court rejected an ERISA challenge to a New York law that imposed a special tax on the gross receipts of hospitals. The Court noted in dicta that the law was not one that "required employers to provide certain benefits." 117 S. Ct. 1747, 1752 (1997) (citation omitted). Similarly, Napoletano v. Cigna Healthcare of Conn., Inc. rejected an ERISA challenge to a claim against an employee benefit plan under the Connecticut Unfair Trade Practices Act. 680 A.2d 127 (Conn. 1996), cert. denied, 117 S. Ct. 1106 (1997). The court noted that state law did not "dictate the benefits that the employer must offer." Id. at 138; see also Safeco Life Ins. Co. v. Musser, 65 F.3d 647, 653 (7th Cir. 1995) (holding that state fees imposed on insurer selling stop-loss coverage to self-funded employee welfare benefits plans did not relate to those plans, and therefore, were not preempted by ERISA).
200. Wash. Admin. Code 162-30-020(7) (1973), reprinted in Wash. Admin. Code, vol. 6 (1959-1976). Note that the regulation does not mention contraception. Is this a significant omission or did the legislature assume that contraception coverage was obvious? It seems to the author that a legislature willing to mandate coverage for abortion in 1973 probably would have assumed that contraception was routinely covered.
201. Reproductive Privacy Act, Wash. Rev. Code § 9.02.100(1)-(4) (1996).
202. 463 U.S. 85 (1983).
203. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976). The Shaw Court notes the two-week coincidence. Shaw, 463 U.S. at 88-89.
204. Shaw, 463 U.S. at 88 (citing Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 359 N.E.2d 393 (N.Y. 1976)).
205. Id. at 108.
206. Id. at 101.
207. Id. (citing 42 U.S.C. § 2000e-7). This section of Title VII states: Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.
208. U.S.C. § 2000e-7 (1994).
209. Shaw, 463 U.S. at 101-02 (citing 42 U.S.C. § 2000e-5(b)).
210. Id. at 102.
211. "We hold that New York's Human Rights Law is pre-empted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law." Id. at 108 (emphasis added).
212. Id. at 105-06.
213. 731 F.2d 1406 (9th. Cir. 1984).
214. Id. at 1407.
215. Id.
216. Federal law provides: "The term 'normal retirement age' means the earlier of: (A) the time a plan participant attains normal retirement age under the plan, or, (B) the later of: (i) the time a plan participant attains age 65, or (ii) the 5th anniversary of the time a plan participant commenced participation in the plan." 29 U.S.C. § 1002(24) (1994).
217. Brown, 731 F.2d at 1409.
218. See supra text accompanying note 167.
219. See supra text accompanying note 168.
220. 42 U.S.C. § 2000e(k) (1994).
221. Catherine L. Fisk advances a similar analysis, arguing that ERISA does not preempt state authority to require employers to provide benefits for same-sex domestic couples because the federal Defense of Marriage Act has recognized state power to regulate in this area. See Catherine L. Fisk, ERISA Preemption of State and Local Laws on Domestic Partnership and Sexual Orientation Discrimination in Employment, 8 UCLA Women's L.J. (forthcoming June 1998).
222. S. 766, 105th Cong. (1997). The proposed act contains the following factual findings: Congress finds that - (1) each year, approximately 3,600,000 pregnancies, or nearly 60 percent of all pregnancies, in this country are unintended; (2) contraceptive services are part of basic health care, allowing families to both adequately space desired pregnancies and avoid unintended pregnancy; (3) studies show that contraceptives are cost effective: for every
223. Pub. L. No. 104-204, 110 Stat. 2935 (to be codified at 29 U.S.C. § 1185, 42 U.S.C.S. §§ 300gg-4, 300gg-51).
224. Commentators have observed that several factors supported this legislation. Eugene Declercq & Diana Simmes, The Politics of "Drive-Through Deliveries ": Putting Early Postpartum Discharge on the Legislative Agenda, 75 Milbank Q. 175, 184-85 (1997). The early discharge laws are incremental and simple. The issue unites physicians and consumers against insurance companies. Id. at 186-87. Perhaps most important, the laws require no public spending. Id. at 187-88. The authors ask whether "the passage of early discharge legislation [was] the forerunner of an outpouring of incremental, largely symbolic health legislation targeted at key constituencies." Id. at 197.
225. See supra Part III.B.
226. For example, in 1994 Congress adopted the Freedom of Access to Clinic Entrances Act (FACE) to provide criminal penalties and civil remedies against "whomever - by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with" any person who is or has been "obtaining or providing reproductive health services." 18 U.S.C. § 248 (1995). This law is "redundant" in that state common law and criminal statutes prohibit the conduct addressed by FACE, and a unanimous U.S. Supreme Court held in National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994), that anti-choice violence and harassment could be prosecuted under the federal anti-racketeering statute.