Michael Masinter wrote:
Contraceptives prevent pregnancy, and only women get pregnant.
Denying contraceptive coverage to men does not expose men to
pregnancy, but denying coverage to women does expose women to
pregnancy.
Let's tease out the issues here. It's possible that denying
coverage for contraceptives violates the PDA because of its
consequences for the risk of unwanted pregnancy, a risk whose effect
is uniquely borne by women. If that's true, though, it shouldn't
matter who is using the contraceptives, men or women. Let's call
this the "PDA argument."
But, as I understand it, the EEOC didn't make the PDA
argument, at least as such. Instead, it wrote that "By denying
prescription contraception drugs, Respondent (the college) is
discriminating based on gender because only females take oral
prescription contraceptives"? Let's call this the "straightforward
argument." This was the argument to which I was responding.
The consequences of the two arguments are obviously very
different. For example, the straightforward argument would apply,
but the PDA argument would not, if an employer denied coverage for
some other type of treatment that was directed only at women, such
as, say, post-menopausal hormone therapy. Conversely, the PDA
argument would apply, but the straightforward argument would not, if
(counterfactually) there were equally-available prescription
contraceptive pills for both men and women, and an employer denied
coverage for both types of contraceptives.
I've already suggested why the straightforward argument
doesn't impress me -- it penalizes Belmont Abbey for institutional
decisions made by someone else, and it doesn't give an honest account
of the best description of what Belmont Abbey is doing. The PDA
argument strikes me as stronger in principle, but I'm not sure
(though this is far from the area of my expertise) that the text or
policy of the PDA can support the weight of it.
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law -- Camden
217 North Fifth Street
Camden, NJ 08102
d...@crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596
Academia.edu page: http://rutgers.academia.edu/PerryDane
Work: (856) 225-6004
Fax: (856) 969-7924
Home: (610) 896-5702
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