Birth Control Discrimination in the Details Part I: A Little Foray Into Legislative Intent

This is a three-part follow up on a piece I wrote for Slate magazine on whether discrimination against people taking prescription birth control is illegal under federal anti-discrimination law.

The Slate article I wrote a while back focused on a bill that had just passed the Arizona House (but which has since been scuttled). The bill focused mostly on allowing employers to refuse coverage of prescription birth control. However, my primary problem with the bill, as I stated in the piece, is that “If [a woman’s] 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.”

This is the language that commenters found most troubling (or infuriating, depending on the commenter), and understandably so. If you read the text of the bill, nowhere does it say “you can opt out of covering prescription contraception, and P.S. you can fire any woman who decides to pay for it out of pocket.”

But if you read the original draft of the bill closely, you’ll see this: “A religious employer shall not discriminate against an employee who independently chooses to obtain insurance coverage or prescriptions for contraceptives from another source.”

Law is rarely written in a vacuum. Rather, new laws usually overwrite or expand on existing law. If you want to outlaw cigarette smoking on the sidewalk, it’s unlikely you’ll pass a bill saying “Smoking on sidewalks is a crime.” Instead, you’ll probably go to the section of existing law that deals with prohibited sidewalk activity, like drinking or sleeping or being naked. Thus, the proposed bill would look like this: “Section X of the law on public nuisances shall read: ‘It is a misdemeanor to drink alcohol, sleep, be naked, or smoke cigarettes on the sidewalk.’”  Similarly, if you decide that public nudity is an important civil liberty, and want to make it legal, your proposed legislation would look like this: “Section X of the law on public nuisance shall read: ‘It is a misdemeanor to drink alcohol, sleep, be naked, or smoke cigarettes on the sidewalk.’” Think track changes for lawmakers.

This helps us understand the Arizona bill better. Arizona already had a law allowing certain employers to opt out of providing birth control under their company plans. But the original law said, basically, if your employee wants to get prescription contraception, you don’t have to provide coverage for it, but you can’t punish her if she gets it somewhere else. If she pays for it herself or through her partner’s insurance plan, or gets it from her sister’s medicine cabinet, that’s really none of her boss’s business.

The proposed bill kept (and expanded) the part of the law saying you don’t have to cover contraception, and then removed the part that says you can’t punish your employee for getting her prescriptions somewhere else. Now, is that really the same as saying “you can opt out of covering prescription contraception, and P.S. you can fire any woman who decides to pay for it out of pocket”? Yes, it is.

Why would a legislator bother to repeal existing law unless (a) they thought the law did something and (b) they wanted the law to stop whatever it was doing. Let’s take the example above: “Section X of the law on public nuisance shall read: ‘It is a misdemeanor to drink alcohol, sleep, be naked, or smoke cigarettes on the sidewalk.’” Why would you bother to remove “be naked” unless you thought that: (a) the law, as written, actively prevents people from being naked in public; (b) you want to stop preventing people from being naked in public.

Thus, the Arizona legislators who wrote and backed the bill in question must have (a) thought that the law as written actively outlawed discrimination against people on the pill; (b) wanted to stop outlawing discrimination against people on the pill. Thus, they wanted to make it legal to discriminate against people on the pill.

But, just because Arizona legislators want to make something legal doesn’t mean they’ll succeed. We have federal anti-discrimination laws and anything that’s illegal under federal law is illegal in every state, regardless of what state legislatures think about it.

This is where I take issue with people who used the article as an excuse to hate on Arizona. Sure, trying to legalize discrimination against birth control penalizes women, but it only matters if it has any effect, and the law can only have effect if federal anti-discrimination laws don’t protect against that type of discrimination.

If I don’t think that federal courts would rule in favor of a woman who’s been fired for taking the pill, then I don’t think that any woman, in any state, is protected against birth control discrimination unless her particular state went out of its way to pass a protective local law. If you think that birth control discrimination should be illegal discrimination against women, don’t just take issue with Arizona legislators, take issue with the federal courts. Or, if you live in Washington State, thank Judge Lasnik of the Western District Court in Washington State, the only court so far to find that birth control discrimination is prohibited under federal law.

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