Support the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC); 
Oppose Other Dangerous Amendments to the Women's Health Bill

Dear Senator:

The American Civil Liberties Union strongly urges you to support the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC), when it is offered as an amendment to the women's health bill at today's mark up in the Health, Education, Labor, and Pensions Committee.  EPICC will improve women's access to basic health care by addressing an alarming gender inequity in the coverage of prescription drugs under private health insurance policies.  The ACLU also urges you to oppose a number of amendments that we expect will be offered.  These amendments would undermine the very purpose of the legislation, threaten women's health, and violate basic civil liberties.

Support EPICC

Although insurance plans routinely cover prescription drugs and devices as well as outpatient medical services, many fail to cover prescription contraceptives and related medical visits and exams.  A 2001 survey by the Kaiser Family Foundation showed that only 64% of employers covered oral contraceptives, and only 41% covered all five all five of the leading FDA-approved reversible contraceptives (oral contraceptive pills, Depo Provera, Norplant, the intrauterine device (IUD), and the diaphragm).  In contrast, 98% of employers covered prescription drugs in general.

Recognizing this serious inequity, 19 states have enacted laws or regulations that mandate insurance coverage for prescription contraceptives and related services when an insurance plan covers other drugs and devices.  Large employers are also following suit.  On June 7, 2002, for example, the Chrysler Group announced that it would expand its health-care coverage to include prescription contraceptives.  Last year, both the Equal Employment Opportunity Commission (""EEOC"") and a federal district court in Washington state (see Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001)) concluded that Title VII, the federal anti-discrimination law aimed at employers with 15 or more employees, requires that employer-sponsored health plans cover prescription contraceptives if they cover other prescription drugs and devices.  

Despite these important gains, federal legislation is sorely needed to close the significant gaps that remain in coverage across the country.

EPICC Will Remedy Sex Discrimination

The failure to cover contraception constitutes impermissible sex discrimination.  As the EEOC and the Erickson court held, the exclusion from health plans of prescription drugs that are used overwhelmingly by women (such as contraception) constitutes unlawful discrimination on the basis of sex.  

EPICC Will Serve Women's Health

EPICC is sound health-care policy.  Lack of insurance coverage forces many women to choose less expensive and less reliable methods of contraception, which increases the likelihood of unintended pregnancy.  By eliminating financial barriers to effective contraceptive services, EPICC will reduce the number of unintended pregnancies, and ultimately, the number of abortions.  In addition, improved access to contraception will allow more women to control the timing of their pregnancies.  This, in turn, helps reduce infant mortality, low birth weight, and maternal health complications during pregnancy.

EPICC Makes Economic Sense

EPICC is cost-effective.  A study by the Alan Guttmacher Institute found that providing full contraceptive coverage in employment-based heath insurance plans would cost employers just over $20.00, per employee, per year.  When the savings from preventing unintended pregnancies is taken into account, contraceptive coverage may actually save money for employers.  The Washington Business Group on Health, an organization that represents large employers, estimates that failing to provide contraceptive coverage may cost an employer 15-17% more than providing the coverage (due to the direct and indirect costs associated with unintended pregnancy).

EPICC Contains an Appropriately Narrow Refusal Clause

Refusal clauses (sometimes referred to as ""conscience clauses"") are exemptions from laws of general applicability that permit health care providers or insurers to refuse to provide or cover medically necessary treatment based on the provider's/insurer's religious or moral beliefs.  Once technical amendments are made, EPICC will contain a refusal clause -- modeled on the exemption included in Maine's contraceptive equity legislation -- that would exempt from the contraceptive equity mandate only those religious employers whose primary purpose is to inculcate religious values.[i]^/

EPICC's refusal clause will exempt churches, associations of churches, and parochial schools -- employers that are engaged in the practice or teaching of religion.  That exemption, because it is narrowly and carefully crafted, furthers the public health goal of making contraception more accessible and affordable, without imposing a burden on those women who do not share their employers' beliefs.  The exemption will not apply to religiously affiliated institutions performing secular functions in the public sphere (such as universities, hospitals, and social service organizations serving the general public).  In other words, the exemption will be crafted narrowly enough to ensure that those who operate in the public world play by public rules.

The ACLU believes that refusal clauses should be tested against two factors: (1) the extent to which the clause would place burdens on the health or other critical personal interests of people who do not share and should not bear the brunt of the religious beliefs that motivate the refusal; and (2) the extent to which the clause protects institutions engaged in religious worship or instruction or instead exempts institutions engaged in a secular pursuit in the public sphere.  (By ""burdens,"" we mean to include obstacles to health care and other critical personal interests, but we do not mean to include the mere exposure of third parties to religious practices or the tax or other financial burdens that may result from permitting certain exemptions.)  The ACLU believes that consideration of these factors helps determine which clauses strike the appropriate balance between advancing reproductive rights and protecting religious freedom.

EPICC's refusal clause passes this test.  It imposes few burdens on people who do not share the religious beliefs that motivate the refusal because churches and parochial schools primarily employ and serve people of the same religion.  And, it exempts institutions that are engaged directly in religious worship or instruction and not employers who choose to operate in the public, secular sphere.

In addition to Maine, several other state contraceptive equity laws -- including the laws in North Carolina, California, and Arizona -- contain refusal clauses with a similarly narrow scope.  The laws in Georgia, Vermont, New Hampshire, and Iowa contain no refusal clause at all.   

Senator Gregg's Refusal Clause Is Dangerously Broad      

Senator Judd Gregg  intends to offer a second-degree amendment (Gregg Amendment #9) to the EPICC amendment that would significantly broaden the refusal clause already contained in the bill.  This amendment is so expansive that nearly any employer could refuse to provide contraceptive coverage, effectively gutting the bill's protections.  The Gregg Refusal Clause would permit any group health plan, health insurance issuer, or plan sponsor to refuse to provide contraceptive coverage if providing such coverage would conflict with the plan, issuer, or plan sponsor's ""religious, moral, or ethical convictions.""  These vague, undefined, and ambiguous terms fail to impose any real limit on the employers or issuers who would be exempt from the bill's terms.  In 1999, the House voted against a similar amendment offered by Representative Chris Smith to the contraceptive equity provision in the Federal Employees Health Benefits Program that would have broadened the existing exemption in that provision to exclude plans that object to contraceptive coverage on the basis of ""moral beliefs.""  

Moreover, the Gregg Amendment allows purely secular employers operating in the public sphere to impose serious burdens on people who do not share their beliefs.  For example, it would allow the owner of a restaurant to refuse to provide contraceptive coverage simply because he has a personal objection to contraception.  No other health care service is subject to such an employer veto.  Would it be appropriate for an employer who is a Jehovah's Witness to refuse to provide health insurance coverage for his employee's blood transfusions?  The Gregg Amendment would inappropriately permit employers' beliefs to trump women's health needs.

Other EPICC Amendments

A number of other second-degree amendments are expected to be offered to the EPICC amendment.  Each should be rejected.

(1)   Gregg Amendment #8:  Senator Gregg intends to offer an amendment to EPICC that explicitly permits a health plan: (a)  to exclude any or all contraceptive drugs from its formulary (a formulary is the list of drugs that the plan covers); and (b) to charge the highest copayments or coinsurance for contraceptives.  By allowing such practices, the amendment undermines EPICC's goal of assuring coverage of FDA-approved methods of contraception on the same basis as other drugs and devices.  Under this amendment, a health plan could exclude one or many methods of contraception, such as all birth control pills or all contraceptive injections and devices.  Such exclusions would gut EPICC's core requirement that health plans cover all FDA approved methods of contraception.  The exclusions would also run counter to the EEOC's December 2000 Commission Decision that ruled that an employer, to avoid engaging in sex discrimination, must cover ""each of the available options for prescription contraception"" in any health plan covering other preventative prescription drugs.  See EEOC Commission Decision, Dec. 14, 2000, available at: http://www.eeoc.gov/docs/decision-contraception.html.

(2)  Gregg Amendment #10:  Senator Gregg intends to offer an amendment to EPICC that would allow employers offering a choice of health plans to limit coverage for contraceptives to just one of those plans, while continuing to exclude such coverage in the other plans its offers employees.  Not only would this amendment defeat EPICC's goal of achieving contraceptive equity for privately insured women, it is contrary to decisions of the U.S. Supreme Court and the Equal Employment Opportunity Commission (EEOC) invalidating discriminatory benefit plans.  The Supreme Court has held that an employer cannot avoid engaging in sex discrimination merely by offering one or some non-discriminatory options.  Thus, in Arizona Governing Committee v. Norris, 103 S. Ct. 3492 (1983), the Court ruled that the fact that an employer offers non-discriminatory plan options, in addition to discriminatory ones, is irrelevant to whether the employer has engaged in sex discrimination under Title VII.  Similarly, in its December 2000 Commission Decision finding that exclusion of coverage for contraception constitutes impermissible sex discrimination, the EEOC ruled that in order to correct such discrimination, an employer ""must include such coverage in each of the health plan choices that it offers to its employees."" (Emphasis added.)  Finally, because the health plans offered by an employer typically vary significantly in their costs and limitations, and in the range of treatments and services covered, allowing an employer to exclude coverage for contraceptives in all but one of its health plans would force some women to choose a plan that may not best serve her or her family's health needs or forego the coverage that EPICC seeks to provide. 

(3)  Gregg Amendment #11:  Senator Gregg intends to offer an amendment that purports to exempt a plan from liability under federal or state law for potential harm caused by contraception and contraceptive services covered by the plan.  The extent to which a group health plan may be liable for harm related to the quality of care provided is a controversial question and unsettled area of law.  To the extent liability exists, however, there is no legal precedent for creating an exemption for harm caused by one particular benefit provided by a plan.  This amendment thus inappropriately singles out contraceptive drugs and devices for treatment different from that applied to other drugs under federal law.

(4)  Frist Amendment # 4:  Senator Frist intends to offer an amendment that would require that EPICC be ""consistent with Medicare prescription drug proposals.""  Senator Frist has not, however, provided legislative language or specified which of the many Medicare prescription drug proposals he intends to match.  It is impossible to evaluate the scope or effect of Senator Frist's proposal in the absence of specific legislative language.

Oppose Other Amendments to the Women's Health Bill

Several other amendments that we expect will be offered to the underlying women's health bill should be rejected because they threaten civil liberties and undermine women's health.

(1)  Gregg Amendment # 7:  This amendment would add S. 480, the so-called ""Unborn Victims of Violence Act,"" a criminal measure within the jurisdiction of the Judiciary Committee, to the underlying women's health bill.  This provision would amend the federal criminal code and the Uniform Code of Military Justice to create a new, separate offense if, during the commission of certain crimes, an individual causes the death of, or bodily injury to, what sponsors of the bill call a ""child in utero.""  Because it explicitly applies to all stages of prenatal development, it would be the first federal law to recognize a zygote (fertilized egg), a blastocyst (pre-implantation embryo), an embryo (through week eight of a pregnancy), or a fetus as an independent ""victim"" of a crime, with legal rights distinct from the woman who has been harmed by criminal conduct.  This bill would dramatically alter the existing legal framework by elevating the fetus to an unprecedented status in federal law.  In addition, the amendment is not germane to the women's health bill and the HELP Committee lacks jurisdiction to consider it. 

(2)  Gregg Amendment #5:  Senator Gregg intends to offer an amendment that would redefining the term ""person"" throughout the entire women's health bill to include fetuses.  Like the ""Unborn Victims of Violence Act,"" this amendment is part of an overall anti-choice strategy to undermine Roe v. Wade by establishing legal personhood for fetuses.      

(3)  Gregg Amendment #6:  Senator Gregg intends to offer another amendment that would mandate forced HIV testing.  This amendment provides no new funds for HIV testing, counseling, prevention, or treatment.  Instead, it requires states to force the testing of all infants born to women who do not have a negative HIV test result in their medical files.  This mandate would apply even if the mother decided against having an HIV test because she is in a committed, monogamous relationship with someone who is HIV-negative.  An HIV-positive woman can significantly reduce the risk of HIV transmission to an infant by receiving treatment during pregnancy -- even if the treatment begins only shortly before delivery.  But testing the infant after delivery is too late to stop transmission.  Instead, the infant's test result will merely reflect his or her mother's antibodies.  The test result will not accurately reflect whether the infant will have HIV.  In fact, the chance that an untreated infant born to an untreated HIV-positive woman becomes infected with HIV is one in four.  Under the Gregg amendment, the mother would be forced to have her newborn baby undergo a painful HIV test.  If the baby tests positive, the mother would have to make an immediate decision on whether to start the baby on an intensive regimen of highly toxic drugs whose long-term effects are unknown, or take the three-in-four chance that the baby does not require the therapy at all.  The Gregg forced HIV testing amendment deprives the parents of any ability to make these testing and treatment decisions in a doctor's office after the pain and exhaustion of delivery has passed.  The ACLU urges you to oppose this amendment and, instead support increased funding for the counseling and treatment of HIV-positive children and pregnant women.

(4)  Frist Amendment #3:  This substitute for the entire women's health bill would redefine ""pregnancy"" in a way that directly contravenes the medical establishment's long-standing, accepted definition of the term, with potentially far-reaching effects.  The American College of Obstetricians and Gynecologists and the U.S. Department of Health and Human Services both state definitively that human pregnancy begins when a fertilized egg implants into a woman's uterus.  (""Obstetric-Gynecologic Terminology,"" 1972, and U.S. Code of Federal Regulations, 45 C.F.R. § 46.203.)  The Frist amendment would define pregnancy as beginning when sperm and egg fuse, before the fertilized egg implants.  The new definition would thus redefine a number of the most commonly used forms of contraception as ""abortifacients"" because the birth-control pill, intrauterine device (IUD), and some other contraceptive methods work to prevent pregnancy in a number of ways, including by blocking a fertilized egg from implanting in the uterus.  The new definition could undermine the very purpose of EPICC because EPICC mandates coverage of contraception, not abortion.  By redefining some of the most commonly used forms of contraception as ""abortifacients,"" this amendment could exclude those contraceptive methods from EPICC's reach. 

Sincerely, 

Laura W. Murphy
Director

Gregory T. Nojeim
Associate Director and Chief Legislative Counsel

ENDNOTES