Contraceptive Equity Laws in Your State: Know Your Rights - Use Your Rights, A Consumer Guide

Introduction and Overview

Access to safe and reliable contraception is an essential component of health care for women, yet some health insurance plans exclude coverage for prescription contraceptives even while covering other prescription drugs and devices and preventive care. This gender gap in health care coverage is being challenged in a variety of ways. Legal rulings have established the principle that singling out contraceptive coverage for exclusion from an otherwise comprehensive employee health plan is unlawful sex discrimination in employment. Legislation is being considered in states all across the country to specifically mandate contraceptive equity in health insurance coverage. And in 26 states so far, contraceptive equity measures have been enacted into law. These state laws are the focus of this Consumer Guide.

States with Contraceptive Equity Laws: 

Arizona               Iowa                     New York  

Arkansas           Maine                   North Carolina

California          Maryland               Oregon

Colorado           Massachusetts       Rhode Island

Connecticut      Missouri                 Vermont

Delaware          Nevada                 Washington

Georgia            New Hampshire West Virginia

Hawaii              New Jersey             Wisconsin

Illinois              New Mexico

What This Guide Does

This Consumer Guide is intended to assist individuals across the country in asserting their rights under the state contraceptive equity laws that guarantee health insurance coverage of prescription contraceptives in insurance policies that cover other prescription drugs and devices. The 26 states that currently have contraceptive equity laws are: Arizona, Arkansas, California, Colorado¹, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, West Virginia, and Wisconsin. This Guide provides an introduction to these laws and describes how to implement your rights if you live in a state that has a contraceptive equity law.  In addition, this Guide describes other rights you might have to contraceptive coverage if you live in a state without a contraceptive equity law or if your state’s law does not apply to you.  This Guide includes a state-by-state chart, which tells you whether the state has a contraceptive equity law and who is covered by the law; provides information and links about filing a complaint in your state if you believe you are being denied contraceptive coverage in violation of the state law; and in a separate chart, explains whether the state has a religious refusal clause and to whom it applies.

What the Contraceptive Equity Laws Do

In general, each of the state contraceptive equity laws provides that a health insurance policy that is issued in that state, and that provides coverage for prescription drugs generally, must provide coverage for any prescription drug or device that has been approved by the United States Food and Drug Administration (FDA) for use as a contraceptive. Most also require that if an insurance policy provides coverage for outpatient health care services, it must provide coverage for outpatient contraceptive services, such as consultations, examinations, procedures, and other medical services. Most of the laws further provide that any deductible, copayment, or coinsurance that is applied to contraceptives may not be greater than the deductible, copayment, or coinsurance applied to other prescription drugs. Several of the laws mandate that the contraceptive coverage requirement applies to both the insured and the insured’s covered spouse and other dependents. These laws are statutes passed by the legislature and signed into state law, except in Washington State, where the Insurance Commissioner issued an administrative rule mandating contraceptive equity.

It is important to be aware of limitations on the scope of these laws. The state contraceptive equity laws covered in this Guide apply to insurance policies regulated under state law. If you receive your insurance through an employer that insures its employees through a “self-funded” or “self-insured” plan—that is, where an employer uses its own funds to pay the health care claims of its employees rather than buying an insurance plan from an outside insurer—the state contraceptive equity law will not apply (even if an outside firm is hired by the employer to administer the plan). This is because the “self-funded” plans are considered to be employer benefit plans that are governed by federal law² rather than state insurance laws. However, in such a case your employer is obligated to comply with applicable laws against sex discrimination in employment which, as explained below, can provide a separate basis for asserting your right to contraceptive coverage (see “What Other Rights You Have,” below).

Some states have enacted religious refusal clauses—that is, exceptions to the contraceptive equity mandate for religious employers or insurers (or individuals enrolled in the plan) whose religious tenets prohibit the use of contraceptives. These laws define the scope of the religious exception in various ways. The second state-by-state chart below provides information on how each state law with a religious refusal clause defines “religious employer.” The chart then applies that definition, explaining which employers would be exempt under the law and which would have to provide contraceptive coverage. It is important to note, however, that in some states with such a religious exception, the religious entity is required to provide clear notice of its refusal to cover contraception; and in a few states, like New York and Hawaii, the law goes further and says that if your employer is covered by the religious exception, you have the right to purchase contraceptive coverage directly from the insurance company³. Some of the religious exceptions also specify that they do not apply if the prescription is ordered for reasons other than birth control, such as to address menopause symptoms, or if it is necessary to preserve the life or health of the person insured.

Finally, there are several states that mandate coverage of “family planning services” by HMOs, but do not appear to have interpreted these laws to require coverage of contraceptive drugs and devices. These states are: Minnesota, North Dakota, Ohio, Oklahoma, and Wyoming. In addition, Virginia and Texas⁴ require insurers to offer contraceptive coverage as an employer option, but do not require employers to purchase this coverage. Similarly, Idaho and Kentucky require small-group and individual market carriers to offer standardized plans to employers that include coverage of contraceptives, but do not require employers to select these plans.

How to Implement Your Rights Under the Contraceptive Equity Laws

The state contraceptive equity laws are incorporated into state insurance laws, and they are administered and enforced in the same manner as other state insurance requirements, governing matters such as marketing practices, premiums that may be charged, and other consumer protections. The state regulations include provisions governing how complaints are handled when people do not receive the benefits they believe they are entitled to under their insurance plans. Typically, if you have a complaint about the exclusion of contraceptive coverage from your health insurance in a state with a contraceptive equity law, you may file a complaint with the state insurance department, which will then investigate the matter and attempt to resolve it with the insurance company. You may be required or urged to try to resolve the issue with your insurance company yourself before filing a complaint with the state insurance department.

The way to file such a complaint in each state is described in the chart below; often, it can be done by filing a form electronically. Once it receives a complaint, the insurance department will initially attempt to resolve the matter by informing the insurance company about the complaint and the relevant legal requirements. Because the contraceptive equity requirements are clear statutory mandates, disputes in this area are likely to be resolved quickly and without resort to formal enforcement action. But if the insurance department is unable to resolve the matter simply by contacting the insurance company and demanding compliance, it generally has the authority to take formal action to enforce the law, and may also be empowered to impose fines, penalties, or even suspension or revocation of the company’s license to do business in the state. An individual may also have the right to file a lawsuit for breach of her insurance contract or on other legal grounds.⁵

What Other Rights You Have

Apart from the state contraceptive equity laws described in this Guide, there are federal and state anti-discrimination laws that may be invoked to obtain contraceptive coverage.

Federal Anti-Discrimination Law

The federal law against sex discrimination in employment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), has been interpreted to prohibit employers who offer otherwise comprehensive health benefits to their employees, including coverage of prescription drugs and devices generally, from excluding coverage of prescription contraceptives. This law covers all private employers with 15 or more employees, as well as state and local governments as employers. See U.S. Equal Employment Opportunity Commission, Commission Decision on Coverage of Contraception (Dec. 14, 2000), http://www.eeoc.gov/policy/docs/decision-contraception.html; Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001). Thus, if you obtain your health insurance through your employee benefits plan, and you work for a government or for a private employer with at least 15 employees, you have a right to contraceptive coverage under federal law if your plan covers other prescription drugs and devices. If you live in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota, a federal court decision may implicate your Title VII protection. In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007). For more information on how to assert this right, see the National Women’s Law Center’s guide for employees, Take Action: Get Your Prescription Contraceptives Covered.

State Anti-Discrimination Laws

Almost every state has a law against sex discrimination in employment along the same lines as federal law (Title VII). In light of the fact that Title VII has been interpreted as placing a contraceptive coverage requirement on employers who are covered by federal law, similar state laws should be interpreted in the same way, and already have been in three states: Wisconsin, Montana, and Michigan.

In Wisconsin, the state Attorney General has issued two opinions finding that contraceptive coverage is required by state law.⁶ The Attorney General’s opinions cite Erickson and the EEOC decision and holds that Wisconsin’s Fair Employment Act should be interpreted, like Title VII, to require employers to include contraceptive coverage, and further that Wisconsin’s law prohibiting sex discrimination in education applies the same principle to contraceptive coverage for students of Wisconsin colleges and universities.

The Montana Attorney General in 2006 ruled that Montana state law requires contraceptive coverage as well.⁷ The Attorney General opinion cites Erickson, the Union Pacific district court decision, and the EEOC decision and holds that the Montana Human Rights Act, like Title VII, requires that employer benefit plans providing coverage for prescription drugs and other medical services must cover prescription contraception and related medical services. The Attorney General also found that Montana’s “unisex” insurance law requires this coverage. 

In August 2006, the Michigan Civil Rights Commission determined that contraceptive coverage is required by the state’s Elliott-Larsen Civil Rights Act (ELCRA).⁸ The Commission discussed Erickson, the Union Pacific district court decision and the EEOC decision before ruling that the language of ELCRA clearly prohibits employers from excluding prescription contraceptive coverage from otherwise comprehensive health plans. 

If you are not in one of the states with contraceptive equity laws or your plan is self-insured, and your employer is too small to be covered by Title VII, you may be able to invoke the state’s sex discrimination law to obtain contraceptive coverage.

If You Need Help

If you would like assistance in exercising your rights under any of the applicable state or federal laws, please contact the National Women’s Law Center. You may call our toll-free information line at 1-866-PILL4US or email us at info@nwlc.org.

¹ The Colorado law was signed by the governor in May 2010 and becomes effective January 1, 2011.  

² The federal law, which you may hear discussed, is “ERISA,” the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001- 1461 (1974).

³ For more information on notice requirements, see the National Women’s Law Center’s report, Truth or Consequences: Using Consumer Protection Laws to Expose Institutional Restrictions on Reproductive and Other Health Care, http://www.nwlc.org/pdf/TruthOrConsequences2003.pdf.

⁴ A Texas law applies to plans delivered, issued, or renewed after January 1, 2004. Tex. Ins. Code Ann. art. 3.80 (West 2006). For plans issued prior to that date, Texas has a comprehensive contraceptive equity law requiring that all health insurance plans issued in the state that offer prescription coverage include contraceptive coverage. TEX. INS. CODE ANN. art. 21.52L, §3 (West 2006).

⁵ The information contained in this Guide was collected through online research, statutory review, and telephone interviews and correspondence with relevant state officials. Since few complaints under contraceptive equity laws have been filed to date, this Guide lays out how such complaints would ordinarily be handled based on the practices of each of the states in addressing other state insurance mandates.

⁶ Letter from Wisconsin Attorney General Peggy A. Lautenschlager to state Senator Gwendolynne Moore, October 17, 2003; Letter from Wisconsin Attorney General Peggy A. Lautenschlager to Secretary, Helene Nelson, Wisconsin Department of Health and Family Services, August 16, 2004.

⁷ Opinion issued by Montana Attorney General Mike McGrath, Vol. 51, No. 16, March 28, 2006, available at http://www.doj.mt.gov/resources/ opinions2006/51-016.pdf.

⁸ Michigan Civil Rights Commission, Declaratory Ruling on Contraceptive Equity, August 21, 2006, available at http://www.michigan.gov/documents/Declaratory_Ruling_7-26-06_169371_7.pdf.

State Contraceptive Equity Laws

States with Religious Employer Exemptions