American Journal of Law & Medicine

The EPICC quest for prescription contraceptive insurance coverage.(proposed Equity in Prescription Insurance and Contraceptive Coverage Act )



On the October 18, 2001 episode of The Late, Late Show with Craig Kilborn, the show's host announced that a woman in Georgia had sued her employer, WalMart, for not covering her contraceptives under its health insurance plan. (1) He then cracked, "Hey, isn't working at WalMart all the birth control you need?" (2) Kilborn's crude joke met with howls of laughter from the audience, but it likely struck a raw nerve with the millions of American women who do not have access to health insurance plans that cover birth control, and the many men and women who are battling to ensure that all women ultimately obtain such coverage. (3)

WalMart is one of hundreds of employers in the United States that do not cover any of the five most common forms of birth control (4) that were created exclusively for women. (5) In fact, half of the large health insurance plans in America do not cover any form of contraception. (6) Some of these plans do, however, cover Viagra, a drug used to treat male impotence. (7) Insurance coverage of Viagra for men by plans that do not cover contraceptives for women has provoked a great deal of controversy, (8) with some critics claiming that it constitutes sex discrimination. (9) Many of these plans also cover birth control and birth-related procedures that are far more costly than the coverage of contraceptives. For instance, eighty-six percent of health plans cover tubal ligation, nearly 100 percent cover maternity care and two-thirds cover certain abortion services. (10) Only fifteen percent cover all five of the most common forms of birth control. (11) As a result, women pay what many call a gender tax, (12) which results in women paying sixty-eight percent more out-of-pocket for prescription drugs than men. (13)

Recognizing the need for broadened access to contraceptives, state legislatures and federal courts have made some progress in mandating coverage of the FDA-approved forms of birth control. Twenty states have enacted legislation that compels insurance plans that cover prescription drugs to cover prescription contraceptives. (14) Further, the Equal Employment Opportunity Commission (EEOC) has ruled that employers that exclude contraceptive coverage from health insurance plans covering other preventative medicine or services engage in sex discrimination in violation of Title VII of the Civil Rights Act of 1964. (15)

In spite of these efforts, many women do not yet benefit from insurance coverage for their contraceptives. The women who either have to pay for contraceptives out-of-pocket or go without include those who live in the thirty states without equity in contraceptive coverage laws. (16) Also included are the women whose employers have fewer than fifteen employees, (17) and those whose employers have self-funded insurance plans since the Employee Retirement Income Security Act of 1974 (18) (ERISA) preempts state laws that relate to employee benefit plans. (19)

The Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC), as proposed in the U.S. Congress, (20) seeks to broaden access to birth control. The law would mandate that all plans that offer coverage of prescription drugs also cover all FDA-approved forms of birth control. (21)

This Note will explain why broad-based, federal legislation mandating contraceptive coverage is crucial, and make recommendations for the improvement of EPICC. Part I will examine current legislative, judicial and administrative efforts aimed at increasing access to insurance coverage of contraceptives. It will also demonstrate that in spite of these efforts, many women still go without insurance coverage for this staple of female health. Part II will analyze EPICC, as well as conscience clauses. Conscience clauses allow religious institutions fundamentally opposed to contraception to opt out of compliance with contraceptive coverage mandates. Although conscience clauses appear in the vast majority of state statutes, a conscience clause is conspicuously missing from EPICC, and this may impede its passage. (22) Part III will provide an analysis of the state laws that currently mandate coverage, with an eye toward exposing successful models of legislation that include conscience clauses. Part IV will explore policy considerations for the passage of EPICC and will demonstrate that enacting EPICC makes economic and common sense. Finally, in Part V, this Note will recommend that EPICC be modified with a conscience clause and passed into law.


Without some form of contraception, a woman could have twelve to fifteen children throughout her life. (23) Fifty percent (approximately 3.6 million) of all pregnancies in America are unintended, (24) giving America the highest rate of unintended pregnancies among all industrialized nations. (25) Fifty percent of these unintended pregnancies in the United States are terminated. (26) The unintended pregnancies that are not terminated are more likely to result in low birth-weight, premature babies and babies with birth defects. (27)

In addition to pregnancy prevention, contraceptive drugs are sometimes used to treat medical conditions, such as dysmenorrhea (28) and estrogen imbalances. (29) Women who are participants in plans that do not cover contraceptives can only obtain these prescription drugs by paying for them out-of-pocket. (30)


Critics of legislatively compelled benefits argue that mandated benefits increase demand and thereby lead to increases in healthcare costs. (31) When the costs of lost productivity, maternity benefits and employee replacement are considered, however, employers who do not offer coverage of contraceptives can expect their healthcare costs to be fifteen to seventeen percent higher than if they did cover contraceptives. (32) A one-year supply of birth control pills costs approximately $325, (33) while the costs associated with uncomplicated labor and delivery are upwards of $5,000. (34) Cesarean section deliveries (35) cost approximately $10,000. (36) One study indicates that the average increase in premiums for an employer to add coverage of the FDA-approved forms of birth control would be $1.43 per month, per employee. (37) In 1999, however, when the federal government issued a mandate requiring that insurers participating in the Federal Employees Health Benefits Program provide prescription contraceptive coverage, there were no premium increases whatsoever. (38)



On January 22, 2001, the Senate introduced EPICC as "a bill to require equitable coverage of prescription contraceptive drugs and devices, and contraceptive services under health plans." (39) This bill, which would amend ERISA (40) and the Public Health Service Act, (41) has forty-two Senate co-sponsors. (42) When it was introduced in 1997 and again in 1999, (43) it spurred several states to begin efforts to pass similar legislation. (44)

EPICC's provisions would affect employers, insurers and healthcare providers. The bill seeks to prohibit group health plans and health insurance issuers providing individual and group coverage from excluding or restricting benefits for prescription contraceptive drugs, devices and outpatient services if the plan provides benefits for other outpatient prescription drugs, devices or outpatient services. (45) EPICC would also prohibit denials of eligibility to participate in health insurance plans based on the use or potential use of contraceptive drugs, devices and outpatient services. (46) Further, it would proscribe the provision of monetary payments or rebates to a covered individual to encourage his or her acceptance of less than the minimum protections available. (47) EPICC would also disallow penalizing, reducing or limiting a healthcare professional's reimbursement because the professional prescribed such drugs or devices, or provided such services. (48) Likewise, it would disallow incentives to healthcare providers to induce them to withhold drugs, devices or services. (49)


Unlike many of its state-level counterparts, (50) as it is currently drafted, EPICC has no provision for exempting religious organizations or other groups which may have moral objections to contraceptive use. …

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