Arizona’s War on Birth Control

The law, lawyers, and the court.
March 23 2012 11:27 AM

Arizona’s War on Birth Control

Discrimination about the pill is discrimination against women.

Woman holding birth control pills.
Some 82 percent of sexually active, reproductive-age women have taken the pill at some point

Photograph by Keith Brofsky/Thinkstock Images.

The Obama administration recently issued a mandate requiring all employers to cover prescription birth control under company health plans. Arizona legislators recently introduced a bill that would allow some employers to opt out. That’s not terribly exciting. An employee can just pay for birth control out of her own pocket. But here’s the troubling part: If her employer is seriously opposed to birth control, and wants to discriminate against her for taking it—even though she’s paying for it herself—a provision in the Arizona bill would allow that.

Commentators are understandably outraged. After all, a lot of women take birth control: The CDC estimates that some 82 percent of sexually active, reproductive-age women have taken the pill, for example, at some point in their lives. Plus, only women take it, as well as the other forms of contraception you need a prescription for. So, wouldn’t discrimination against people taking birth control be discrimination against women? And wouldn’t that make it illegal under Title VII of the Civil Rights Act, which Congress passed precisely to forbid sex discrimination? Alas, not necessarily.

To understand why, let’s consider an analogy: pregnancy. Only women become pregnant, as yet (obviously). So any policy that discriminates against pregnant people would affect women—most women, eventually—and not men. If you allow discrimination against pregnant people, then men can have all the biological children they want to, and only women will be penalized for it.

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And yet, not once, but twice in the mid-1970s, the Court held that policies that discriminate against pregnancy don’t discriminate against women because not all women are pregnant all the time. The idea was that women who aren’t pregnant would be treated just like men, so there was no discrimination. Plus, pregnancy had nothing to do with stereotypes about femininity or female incompetence, so pregnancy discrimination, the Court reasoned, wasn’t a cover for some deep-seated hatred of women (there’s room for disagreement on this point but the court didn’t acknowledge it).

Only after Congress stepped in to pass the Pregnancy Discrimination Act, in 1978, did the courts come around. This time, Congress was explicit about what should have been obvious. As Senator Jacob Javits put it at the time: “It seems only commonsense, that since only women can become pregnant, discrimination against pregnant people is necessarily discrimination against women.”

Discriminating against people who take birth control should be illegal for the same reason: Only women take it. And Congress was clear: The law shouldn’t prohibit anything that penalizes women, and not men, for something most women do. That’s the definition of sex discrimination, right?  Outside the context of pregnancy, however, the courts still aren’t all getting it. A federal judge in Texas recently held that “firing someone for lactation or breast pumping is not sex discrimination.” And on the question of birth control, the Eighth Circuit ruled in 2007 that a health plan covering every prescription under the sun except contraception doesn’t discriminate against women. The court said that the term “contraception” is gender neutral. So any plan that doesn’t cover prescription birth control isn’t targeting women, it just so happens to only affect them. It’s not discrimination, it’s just tough luck.

The Obama administration’s birth control mandate is a step toward limiting the damage done by this ruling, but it doesn’t resolve the related problem that the Arizona bill brings into focus. An employer fundamentally opposed to birth control may not just be unwilling to pay for it. Conceivably, such an employer could object to working with women who take birth control at all—demoting or maybe even firing those who do. It may sound far-fetched, but it’s not impossible. Prescription coverage won’t protect women against something like this—but federal civil rights law should. Discriminating against people who take prescription birth control is discriminating against women: It punishes women, and not men, for something most of us do at some point in our lives. That’s what the law should recognize.

Christine Clarke is lawyer at the New York-based law firm of Beranbaum Menken, where she represents employees.  She writes about employment law at Wage Against the Machine.