Support the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC)
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 S. 812, the generic drug bill, which is now on the Senate floor. 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.
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. EPICC contains 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.
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 the health or other critical personal interests of 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.
The ACLU urges you to oppose any attempt to broaden the refusal clause contained in EPICC to cover employers other than those engaged in the practice or teaching of religion. Broad refusal clauses in contraceptive equity legislation place women at risk of unintended pregnancy. Furthermore, they permit discrimination to continue by forcing women to pay out-of-pocket for health care that should be covered by insurance. Broad refusal clauses inappropriately allow employers who are acting in the public, secular realm both to impose their religious beliefs on employees who do not share them and to trump women's health needs.
The ACLU urges you to support EPICC, an important provision that will remedy discrimination and improve women's health, and to oppose any amendments to its refusal clause like that described above.
Sincerely,
Laura W. Murphy
Director
Gregory T. Nojeim
Associate Director and Chief Legislative Counsel