A three-judge panel of the 8th Circuit Court of Appeals in St. Louis on Thursday ruled 2-1 that Union Pacific Railroad's policy of not covering contraceptives does not discriminate against women, the AP/Houston Chronicle reports (Funk, AP/Houston Chronicle, 3/15). Two female Union Pacific employees, represented by Planned Parenthood of Western Washington, filed a lawsuit that seeks to require the company to provide coverage for FDA-approved prescription contraceptives for female employees and the female family members of male employees covered by the company's health plan. U.S. District Judge Laurie Smith Camp in July 2005 ruled that Union Pacific -- which employs about 49,000 workers nationwide, including 1,300 women -- illegally discriminated against female employees by not providing contraceptive coverage in its health plans. Although Smith Camp did not order the company to begin covering contraceptives, she said Union Pacific's policy violated the federal Civil Rights Act of 1964, which prohibits employers with 15 or more employees from discrimination based on gender or pregnancy. Smith Camp ruled that the health plan policy was discriminatory because it covered many preventive health medications, including drugs for erectile dysfunction, but not contraception. The company has argued that it did not need to provide contraceptive coverage "because fertility is 'normal,'" and, therefore, birth control is not "medically necessary" (Kaiser Daily Women's Health Policy Report, 11/20/06). According to the AP/Chronicle, the judges in their ruling wrote that because Union Pacific's health plan does not cover contraception for men, such as condoms or vasectomies, the contraception coverage "provided to women is not less favorable than that provided to men." Judge Kermit Bye issued a dissenting opinion and said that the policy is discriminatory even though it is gender neutral because men cannot become pregnant. Bye added that Union Pacific's health plan covers some preventive medications used by men and that contraception can be considered as part of preventive care for women (AP/Houston Chronicle, 3/15). The ruling will be binding throughout the 8th Circuit, the St. Louis Post-Dispatch reports. The ruling will apply only to contraceptives used for family planning purposes and not for contraceptives prescribed for medical reasons, according to Amy Monahan, associate law professor at the University of Missouri-Columbia (Patrick, St. Louis Post-Dispatch, 3/16).

Reaction
Roberta Riley, an attorney representing the plaintiffs, called the ruling a "big shove backward for women's health," adding that contraceptives are part of essential health care for women. James Barnes, a spokesperson for Union Pacific, said the company is pleased with the ruling. He added that the company began providing contraception last year after Smith Camp's ruling and had no plans to discontinue the coverage, according to the AP/Chronicle (AP/Houston Chronicle, 3/15). According to Riley, attorneys for the plaintiffs are studying the ruling and will give an appeal a "very strong consideration" (St. Louis Post-Dispatch, 3/16). Riley added that the case might prompt groups concerned about contraception access to call on federal lawmakers to expand access, the AP/Chronicle reports (AP/Houston Chronicle, 3/15).