Union Pacific wins contraceptive ruling

Union Pacific Railroad's policy of not covering contraceptives in its health plan didn't discriminate against women, the 8th Circuit U.S. Court of Appeals ruled Thursday.

The railroad prevailed on appeal because its policy does not cover any contraceptives for men or women, so the court agreed Union Pacific did not violate the federal Civil Rights Act.

"Union Pacific's health plans do not cover any contraception used by women such as birth control, sponges, diaphragms, intrauterine devices or tubal ligations or any contraception used by men such as condoms and vasectomies," the court panel said in its 2-1 ruling. "Therefore, the coverage provided to women is not less favorable than that provided to men."

A federal judge in Omaha ruled in June 2005 that Union Pacific discriminated against women by denying them coverage of contraceptives. The lawsuit, backed by Planned Parenthood, alleges the policy violates the federal Civil Rights Act.

One of the three appeals court judges filed a dissenting opinion because he believes Union Pacific's plan does discriminate. That dissent could fortify an appeal of Thursday's ruling, and the issue may be addressed by Congress.

U.S. Judge Kermit Bye said Union Pacific's policy affects only women because men cannot become pregnant, and that makes the railroad's policy discriminatory even though it is officially gender neutral.

Bye pointed out that Union Pacific's health plan covers some preventive medications used only by men. But he said the plan fails to cover contraception, which can be considered preventive care for women.

"Women are uniquely and specifically disadvantaged by Union Pacific's failure to cover prescription contraception," Bye wrote.

Union Pacific spokesman James Barnes said the railroad was pleased with the court ruling because it validated UP's policy.

"However, independently we decided to provide the coverage and have no plans to take it away," Barnes said.

The railroad added contraceptive coverage after the lower court ruled against Union Pacific in 2005.

The plaintiffs' attorney Roberta Riley said she was disappointed with the ruling.

"It's a big shove backward for women's health," Riley said.

The lead plaintiffs in the class-action were two Union Pacific employees: 27-year-old Brandi Standridge, a trainman and engineer from Pocatello, Idaho, and 34-year-old Kenya Phillips, an engineer who lives near Kansas City, Mo.

Riley said contraceptives are part of basic and essential health care for women. She has said that without contraception the average woman would become pregnant between 12 and 15 times in her lifetime.

And in this case, fairness was an issue, Riley said, because Union Pacific offered a generous health plan that would cover drugs such as Rogaine for hair loss and Viagra for erectile disfunction but not birth control pills.

Riley said the plaintiffs have not decided whether to appeal Thursday's ruling from the 8th Circuit Court, which is the highest court to rule on the issue so far.

But regardless of whether the court case moves forward, Riley said groups concerned about contraceptives may try to persuade federal lawmakers to act.

"We certainly think this is a very strong call to action for Congress," Riley said.

Riley told the appeals court in November the federal Centers for Disease Control and Prevention has said contraception is one of the top 10 public health accomplishments of the 20th century because it saves women's lives.

Omaha-based Union Pacific Corp. operates Union Pacific Railroad. It is the largest railroad in North America, covering 23 states.