Contraception and Health Insurance: The Bush Judiciary and Democracy

By Sylvia A. Law

Whatever happens in the 2008 elections, the federal judiciary will be a lasting legacy of George W. Bush. While the implications of his nominees to the federal bench are still being watched, Bush’s judiciary changes will not be limited to the Supreme Court or simply abortion. On March 15, a divided panel of the Eighth Circuit Court of Appeals held that Title’s VII’s prohibition against gender discrimination does not protect women’s access to contraception.

Is it sex discrimination if a company provides coverage for the most common prescription drugs, but excludes prescriptions women need to prevent pregnancy? In the 1990s, coverage of birth control through insurance plans was spotty—some plans failed to cover any contraceptives under the guise of not paying for “preventive care.” Other insurers treated birth control as medically unnecessary “cosmetic,” like skin cream.

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