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In a landmark and controversial 1998 decision, the Supreme Court, in Bragdon v. Abbott,1 used the Americans with DisabilitiesAct of 1990 (ADA)2 to uphold the civil rights of a woman who hadbeen denied equal access to a dentist because of her HIV status. InBragdon, the Court held that people with asymptomatic HIV were aprotected class against discrimination under the ADA.3 However, theCourt’s counterintuitive reasoning—that the deterrent effect of HIVupon a woman’s ability to reproduce, and not its debilitating impactupon a person’s ability to fight off disease, constituted the basis forproviding the protection of disability-status to persons with asymp-tomatic HIV—produced as many unintended beneficiaries as it didcritics.4 Never before had the Supreme Court thought of the ability toreproduce as a major life activity equivalent to the ability to walk orbreathe.5 Many procreative rights scholars and advocates hailed thedecision as a watershed event validating the claims of infertile womento coverage for infertility treatments through employer-providedhealth benefit plans under the ADA.6 Once infertility was declared a * Candidate for J.D. degree, 2002, New York University School of Law. The author would like to thank Dr. Gina Belmonte, my new sister-in-law and OB/GYN,for listening to my ideas and continually reminding me that “it doesn’t work likethat,” and Matthew Marcotte and the Journal of Legislation and Public Policy stafffor their dedication and editorial finesse.
1. 524 U.S. 624 (1998).
2. Equal Opportunity for Individuals with Disabilities, 42 U.S.C. §§ 12101–12213 3. 524 U.S. at 631.
4. Id. at 638 (holding that “[r]eproduction falls well within the phrase ‘major life activity.’ Reproduction and the sexual dynamics surrounding it are central to the lifeprocess itself.”).
5. Id.
6. See Kimberly Horvath, Does Bragdon v. Abbott Provide the Missing Link for Infertile Couples Seeking Protection Under the ADA?, 2 DEPAUL J. HEALTH CARE L.
819, 840 (1999) (“Infertile couples may also receive greater protection for health care disability, some scholars even predicted that mandatory insurance cov-erage for treatment of a variety of reproductive disorders was “a slam-dunk.”7 Since Bragdon, advocates for the infertile have looked to the courts as a way to obtain insurance coverage for their medical treat-ments.8 The legal battle to obtain insurance coverage for the infertileunder the ADA has been waged on two fronts. First, advocates had toconvince the courts that the inability to reproduce should be consid-ered a disability under the ADA. Second, advocates had to convincethe courts that all individuals with disabilities should obtain equal pro-tection from discriminatory insurance practices under the ADA. ThisNote will address the efforts to find such protection through the firstcase to test the frontiers of the rights of the infertile: Saks v. FranklinCovey.9 Saks had its roots when, only a few months after Bragdon, the Equal Employment Opportunity Commission (EEOC) ruled that apublishing company violated the ADA by specifically excluding sur-gical impregnation procedures from its health benefits plan.10 On Oc-tober 2, 2000, the District Court for the Southern District of New Yorkweighed in on the agency’s ruling in Saks, the first post-Bragdon casebrought by infertility advocates.11 As predicted, the court followedBragdon in holding that infertility was a protected disability, and,therefore, an infertile person is “a ‘person with a disability’ within themeaning of the ADA.”12 However, the court found two independentgrounds to dismiss the case. First, the court reasoned that the plan coverage [as a result of the Bragdon decision].”); Peter K. Rydel, Comment, Redefin-ing the Right to Reproduce: Asserting Infertility as a Disability Under the Americanswith Disabilities Act, 63 ALB. L. REV. 593, 598 (1999) (“[S]elf-insured employers notsubject to state regulation must be wary of denying infertility coverage to employ-ees.”); RESOLVE, SUPREME COURT RULES: REPRODUCTION IS A MAJOR LIFE ACTIV-ITY (July 2, 1998), at (“Are employersdiscriminating when they do not provide infertility insurance coverage? The Courtdecision strengthens the case for insurance coverage.”).
7. Kim H. Finley, Comment, Life, Liberty, and the Pursuit of Viagra? Demand for ‘Lifestyle’ Drugs Raises Legal and Public Policy Issues, 28 CAP. U. L. REV. 837,852 (2000).
8. See, e.g., Lehman v. Adecco N. Am., No. 00-C8137, 2001 U.S. Dist. LEXIS 6391 (N.D. Ill. Apr. 3, 2001) (deciding lawsuit based on denial of health care benefitsfor infertility).
9. 117 F. Supp. 2d 318 (S.D.N.Y. 2000) (holding that although infertility is disa- bility under ADA, exclusion of medically necessary treatments for infertility does notdiscriminate against infertile).
U.S. Agency Says Employer Should Pay for a Woman’s Infer- tility Treatments, N.Y. TIMES, Apr. 29, 1999, at B5.
11. 117 F. Supp. 2d 318.
12. Id. at 324.
exclusions did not constitute discrimination on the basis of disabilitybecause they applied uniformly to both disabled and nondisabled em-ployees.13 Second, the court held that the plan’s exclusions for infer-tility treatments, which predated passage of the ADA, “by definition”could not constitute subterfuge of the purposes of the ADA under theADA’s “safe harbor” provision.14 Prior to Bragdon, courts had articulated three general arguments for dismissing claims such as those brought in Saks: (1) reproductionwas not a major life activity protected by the ADA; (2) exclusionsagainst infertility treatments were not “disability-based;” and (3) ex-clusions predating the ADA fell under the “safe harbor” provision.15However, Saks was the first case in which a court found that infertilitytreatments could be excluded despite the finding that infertility was aper se disability.16 Saks is significant because it is the first case ap-plied to infertile individuals that relies exclusively upon the facial neu-trality of insurance policy exclusions targeted against treatments, asopposed to diagnoses, as a sufficient basis to survive scrutiny underthe ADA.
This Note will examine the consistency of the claim in Saks in the aftermath of Bragdon and in light of the influential Seventh Cir-cuit decision, Doe v. Mutual of Omaha, that defined and limited theobligations of health insurers under the ADA.17 By refusing to engagein a meaningful disparate impact analysis of the effect of facially neu-tral benefit exclusions on the protected class of the reproductively dis-abled, the courts send a disturbing signal to all disabled peoplerequiring insurance coverage. By reducing each disability to its spe-cific diagnosis instead of seeing each disability as part of a widerclass, the courts have essentially divided a once-unified coalition ofdisabled-rights advocates into issue- and symptom-specific move-ments. As a result, the fight against discrimination on the basis ofdisability will continue to be piecemeal and isolated, resulting in theanomaly that infertile women may only be considered “a little bit dis-abled” and thus only a “little bit entitled” to their legal rights under theADA.
13. Id. at 327.
14. Id. at 328.
15. See, e.g., Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102 (S.D. Iowa 1995), aff’d, 95 F.3d 674 (8th Cir. 1996) (citing all three grounds as reasons for denialof claim that failure to cover infertility violated ADA).
16. 117 F. Supp. 2d at 326–27.
17. 179 F.3d 557, 563 (7th Cir. 1999) (holding that health benefit plans that capped amount of permissible expenditures for treatment of AIDS did not violate ADA aslong as all employees received same benefits.) Part I of this Note outlines the medical and social aspects of in- fertility, focusing on the policies that the states and the federal govern-ment have enacted thus far to address the growing infertility crisis.
Part II retraces the debate that most scholars and observers thoughtwould define the issue of infertility and insurance coverage under theADA: whether infertility is a disability or not. Part III exploreswhether and how the ADA relates to insurance coverage under itsmain provisions, Titles I and III. Although the Saks claim was deniedbecause of this very question, that claim was only brought under TitleI; other claims could possibly be brought under Title III. Part IV criti-cally examines the Saks case in an effort to demonstrate how the out-come might have been different had the court engaged in a disparateimpact analysis of the policy exclusion. Finally, Part V tests the inter-nal consistency of the portion of the Saks decision that suggests thattreatment-based exclusions having an adverse affect only upon the in-fertile are not disability-based distinctions constituting “subterfuge” ofthe purposes of the ADA. This Note concludes by noting that, whilethe analysis exercised in Saks is inconsistent with precedent, theremay be ways to support the Saks holding other than those exercised bythe Saks court.
Infertility is a serious and growing concern in America. Esti- mates of the overall incidence of infertility among couples of repro-ductive age vary from two to six million.18 Due to environmental andsocial factors, infertility in the United States has been said to be at itshighest rate ever.19 This Part of the Note briefly discusses the inci- 18. See D’Andra Millsap, Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and Infertility Services and the ADA, 22 AM.
J. L. & MED. 51, 56 (1996); see also Anne T. Fidler & Judith Bernstein, Infertility:From a Personal to a Public Health Problem, 116 PUB. HEALTH REP. 494, 497 (1999)(discussing difficulty of defining infertility: “As for many diseases or disorders, thereis no single objective test of infertility and no universally accepted definition, thoughtypically it is defined in clinical practice as the inability to become pregnant aftermore than one year of unprotected intercourse.”).
19. Deborah Dallman, Note, The Lay View of What Disability Means Must Give Way to What Congress Says it Means: Infertility as a “Disability” Under the Ameri-cans with Disabilities Act, 38 WM. & MARY L. REV. 371, 389 (1996) (“Of the mil-lions of infertile couples in the United States, an increasing number seek treatment.”);Philip Elmer-Dewitt, Making Babies, TIME, Sept. 30, 1991, at 56; see also Fidler &Berstein, supra note 18, at 497 (reporting that “[t]he absolute number of women being treated with assisted reproductive technologies . . . rose dramatically” between 1995and 1998); cf. Trip Gabriel, High-Tech Pregnancies Test Hope’s Limit, N.Y. TIMES,Jan. 7, 1996, at A1 (discussing general growth in assisted reproductive technology).
dence and treatment of infertility in America; how information failuresin the infertility market have been exacerbated by the government’sinability to regulate it; and how insurance underwriters have generallyexcluded infertility treatments from their policies.
Infertility Incidence and Treatment of Infertility Couples seeking to achieve pregnancy often discover their infer- tility after a year of unsuccessful, contraception-free intercourse.20 Ofthe sixty million women of reproductive age, roughly fifteen percenthave had an infertility-related medical appointment at some point intheir lives.21 The causes of infertility can be traced either to a man ora woman.22 Upon diagnosis, many couples fall into a treacherous psy-chological cycle of hope, despair, and desperation.23 Although somecharacterize the decision to have children as a “lifestyle choice,” adiagnosis of infertility can be as psychologically devastating as a diag-nosis of a terminal illness.24 Most couples seeking treatment are able to utilize noninvasive therapies that range from hormone-altering drug treatments to wearinglooser shorts.25 Most couples are able to achieve a successful preg-nancy with conventional treatments.26 However, approximately fivepercent require more advanced assisted reproductive technologies 20. See AM. SOC’Y OF REPROD. MED., FREQUENTLY ASKED QUESTIONS ABOUT IN- FERTILITY, at (last visited Nov. 18, 2001)[hereinafter ASRM, FAQ]. A normally fertile couple has a nearly ninety percentchance of achieving pregnancy over that same time period. Sharon Begley, The BabyMyth, NEWSWEEK, Sept. 4, 1995, at 38, 45.
22. Male infertility is the cause roughly 33% of the time, female infertility is the cause roughly 33% of the time, and both male and female infertility is the cause theremaining 33% of the time. See ASRM, FAQ, supra note 20.
23. See Begley, supra note 20, at 47 (comparing psychological pressure on couples to keep trying to achieve pregnancy despite past failures as “their own privateVietnams. Having spent $10,000 . . . they can’t quit until they have a victory—ababy”).
24. See Fidler & Bernstein, supra note 18, at 497.
25. See ASRM, FAQ, supra note 20; see also RESOLVE, GETTING STARTED: HOW DO I KNOW I HAVE AN INFERTILITY PROBLEM?, at visited Nov. 18, 2001).
(ARTs), such as in vitro fertilization (IVF).27 The average cost of anIVF cycle in the United States is between $7,800 and $10,000.28 Even in the case of male infertility, it is the woman who must undergo the time-consuming impregnation procedures alone.29 A re-cent report issued by a special task force for New York State revealeda failure rate of over eighty percent of the twenty-seven thousand re-ported IVF cycles in 1994.30 Information Failures in the Infertility Market In order for markets to efficiently allocate goods and services, economics assumes that consumers have sufficient information toweigh the costs and benefits of a particular purchase. One couldscarcely imagine a functioning market without price tags to conveycosts to the buyer. Similarly, without a proper understanding of thevalue or benefit of the good or service for sale, consumers are likely tomake poor choices that do not maximize their own welfare.
Health care markets generally exhibit strong information asym- metries, since many consumers of health care services are not repeat 27. Id. ARTs include in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), and zygote intrafallopian transfer (ZIFT). See Horvath, surpa note 6, at 823n.35. Both GIFT and ZIFT are variations on the IVF procedure, which is designed tobypass the fallopian tubes through a multi-stage procedure involving ovulation induc-tion, blood tests, follicle growth monitoring, egg retrieval (using a laproscope insertedthrough a woman’s vagina), the mixing of eggs with sperm in a petri dish, and theimplantation of two to four embryos. See ABINGTON REPROD. MED., PATIENT INFOR-MATION: IVF AND FROZEN EMBRYO TRANSFER, at http://www.abington-repromed.
com/ivfconsent.html (last visited Nov. 18, 2001) (discussing various types of infertil-ity treatment). With ZIFT, embryos are placed in the fallopian tubes. Id. GIFT in-volves the surgical placement of retrieved eggs and sperm into a woman’s fallopiantubes through a needle inserted near the navel, and is sometimes more acceptable topatients who have ethical objections to fertilization outside the body. Id. 28. See Thomas D. Flanigan, Note, Assisted Reproductive Technologies and Insur- ance Under the Americans with Disabilities Act of 1990, 38 BRANDEIS L.J. 777, 780(2000) (“The cost of a typical IVF cycle is between $8,000 and $10,000.”); ASRM,FAQ, supra note 20 (“The average cost of an IVF cycle in the United States is 29. See Cintra D. Bentley, Note, A Pregnant Pause: Are Women Who Undergo Fertility Treatment to Achieve Pregnancy Within the Scope of Title VII’s PregnancyDiscrimination Act?, 73 CHI.-KENT L. REV. 391, 399 (1998) (“The process can be-come all encompassing, compelling some women to leave their employment tempora-rily because undergoing fertility treatment can be a full-time job.”); Larry Thompson,Fertility With Less Fuss, TIME, Nov. 14, 1994, at 79 (“Making a test-tube baby is atest of human endurance—especially for the would-be mother.”).
Infertility Treatments: New Report, HEALTH FACTS, May 1, players in a given market.31 Kenneth Arrow, in a now classic analysisof health care economics, pointed out that, from a patient’s perspec-tive, “Uncertainty as to the quality of the product is perhaps moreintense [in the health care context] than in [the market for] any otherimportant commodity.”32 The market for ARTs and other infertility services in particular suffer from this market failure given the expense, discomfort, andshame surrounding each failed cycle.33 Moreover, the complexity ofthe procedures can often confuse and overwhelm prospective pa-tients.34 Consumers of infertility treatments tend to be highly vulnera-ble to aggressive marketing tactics and medical experimentation,unable to quit trying the latest innovation despite previous failures andunwilling to listen to more skeptical second opinions.35 Finally, the lack of standardization in the reporting of the “suc- cess rates” of various fertility treatments has led to overoptimisticpresentations of the efficacy of different treatments, reducing the abil-ity of consumers to comparison shop between clinics in terms of qual-ity care.36 Clinics often boast of success rates between twenty-fiveand fifty percent, yet those rates might be determined by measuringthe rate of pregnancy per cycle, as opposed to the live-birth rate,which can grossly distort the statistic in which infertile couples areactually interested.37 Since reproductive endocrinology is a relatively new field, the underlying causes of reproductive disorders and infertility are not wellunderstood, resulting in frequent misdiagnoses.38 Moreover, due to ageneral lack of data, it is not always settled which procedures workbest to address any given disorder when a correct diagnosis is made.39If the doctors are left guessing as to what the proper diagnosis or treat-ment is, then the market cannot function properly.
31. Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 948–49 (1963).
32. Id. at 951.
33. See Begley, supra note 20, at 40.
In Vitro Fertilization: Insurance and Consumer Protection, 109 HARV. L.
35. See Begley, supra note 20, at 45–47 (comparing compulsion to try new, unt- 36. See Note, supra note 34, at 2102 (discussing various methods used by fertility clinics to inflate their success rates).
Fertility Clinics Face Crackdown, N.Y. TIMES, Oct. 26, 1992, at 38. See Begley, supra note 20, at 44–45.
Currently, there is no national program for certification of fertil- ity clinics and no national standards for performance of laboratoryprocedures, clinical testing of new procedures, maintenance ofrecords, qualifications for lab personnel, or quality inspection.40Breakthroughs in medicine and technology surrounding embryologyin the past twenty years have outpaced attempts by the law to addressthe unique and complex industry that has arisen in the interim.41 Congress attempted to address this information failure through the Fertility Clinic Success Rate and Certification Act of 1992.42 Thelaw called upon the Centers for Disease Control and Prevention(CDC) to create a model program for states to use in certifying em-bryo laboratories and fertility clinics.43 It also required the annualpublication of ART clinics’ success rates through the CDC beginningin 1994.44 However, few states have signed onto the pilot certification pro- gram, leaving the federal attempt to create a centralized standard-set-ting agency a mere “legislative curiosity.”45 In 1998, the CDC finallyreleased a model certification program that set up quality standards forstates to adopt at their discretion.46 In 1999, the CDC completed itsfinal report, providing a comprehensive survey of current practicesand laboratory procedures at ART embryo clinics.47 This survey wasdesigned to establish a baseline against which future attempts at regu-lation could be measured. In the meantime, regulation of fertility clin-ics and infertility has been left largely to private entities and thejudiciary.
40. See Note, supra note 34, at 2106 (“At present, the federal attempt to create a certification agency [for infertility treatment programs] is therefore little more than alegislative curiosity.”).
41. See Gregory A. Triber, Growing Pains: Disputes Surrounding Human Repro- ductive Interests Stretch the Boundaries of Traditional Legal Concepts, 23 SETONHALL LEGIS. J. 103, 103 (1998) (“In the last twenty years, human reproductive tech-nology has advanced more briskly than the ability of the law to address the unique andcomplex issues involved.”).
42. Pub. L. No. 102-493, 106 Stat. 3146 (codified at 42 U.S.C. §§ 263a-1 to 263a-7 43. 42 U.S.C. § 263a-2.
44. Id. § 263a-1.
45. See Note, supra note 34, at 2106.
46. Implementation of the Fertility Clinic Success Rate and Certification Act of 1992: A Model Program for the Certification of Embryo Laboratories, 64 Fed. Reg.
39,374 (July 21, 1999).
Insurance Exclusion of Infertility Treatments Insurance coverage for ARTs and other infertility treatments tends to be the exception rather than the rule.48 According to a bene-fits study done in 1997, only twenty-five percent of employersprovided some form of infertility insurance coverage to their employ-ees.49 Additionally, most of those plans that provided some coverageoffered only a few infertility options, and many covered only thediagnosis.50 Although thirteen states mandate some form of coverage for in- fertility treatments, such mandates do not apply to employer self-funded health benefit plans because of the Employee Retirement In-come Security Act (ERISA), a federal law which preempts state lawsrelating to employee benefit plans.51 In some states, more than half ofall employees work for, and receive their health benefits from, ex-empted employers.52 In the thirty-seven other states without man-dated benefit laws for infertility treatments, infertile couples have fewoptions other than what little they and their families may be able toafford out of pocket.
In the late 1980s and early 1990s, several courts held that, absent specific exclusions, infertility treatments were to be covered as medi-cally necessary treatments under standard health insurance coverage.53Insurers could no longer simply assert that IVF was too experimentalor medically unnecessary to cover. In response, many insurers specif-ically moved to exclude or limit provision of infertility treatments.54A recent survey of health plans found ninety-three percent contain 48. See Millsap, supra note 18, at 52 (describing current infertility coverage as 49. Diane D. Aronson, Should Health Insurers Be Forced To Pay For Infertility Treatments?, INSIGHT ON THE NEWS, Feb. 8, 1999, at 24, 26.
note 6, at 594–95. For more on ERISA preemption of state man- dated benefit laws, see Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985).
53. See Egert v. Conn. Gen. Life Ins., 900 F.2d 1032, 1039 (7th Cir. 1990) (holding that if plaintiff could demonstrate that her infertility was sickness or injury under herinsurance plan, insurer was obligated to reimburse her for necessary IVF treatment);Ralston v. Conn. Gen. Life. Ins., 617 So. 2d 1379, 1382 (La. Ct. App. 1993) (holdingIVF as “ ‘essential for the necessary care and treatment’ ” of infertility under insurancepolicy).
54. See Millsap, supra note 18, at 59 (“As a result of these court decisions conclud- ing that those insurance policies included coverage of infertility treatments, insurersbegan to include specific exclusionary clauses. . . . As a result, the vast majority ofprivate insurance policies do not cover IVF or many other types of infertilitytreatments.”).
specific exclusions denying coverage for medication and services re-lated to infertility.55 The rise of HMOs and managed care has also driven the trend towards even more explicit refusals to cover infertility treatments.56Consequently, many couples are forced to accept childlessness due toa lack of insurance coverage, high cost, and low success rates.57 Notsurprisingly, those currently able to afford ARTs tend to be white,upper-middle class, and married.58 The lack of insurance coverage exacerbates the information fail- ure in the market for ARTs, as third party payers represent importantquality and cost-control monitors due to their repeated interactionswith health care providers.59 As a result, infertile couples often seektreatment in a haphazard and potentially dangerous manner, serving asguinea pigs for untested procedures and powerful hormone therapiesthat some studies have shown increase the risk of ovarian cancers,multiple births, prematurity, and low birth weight.60 If insurance policies must cover infertility diagnosis and treat- ment under the ADA, their price will obviously increase to some de-gree, based on how much additional cost the insurer will incur as aresult of covering infertility. Overall, IVF and other ARTs account foronly three hundredths of one percent (0.03%) of U.S. health carecosts.61 Some studies show that the addition of infertility treatmentsto a group health plan has a marginal effect on premiums. In Massa-chusetts, a state with comprehensive mandatory coverage laws, the 56. See Lisa M. Kerr, Note, Can Money Buy Happiness? An Examination of the Coverage of Infertility Services Under HMO Contracts, 49 CASE W. RES. L. REV.
599, 617, 620 (1999); see also Anne Adams Lang, For Infertility Treatments, NowYou’re Covered, Now You’re Not, N.Y. TIMES, June 21, 1998, § 15 (Women’sHealth), at 12.
57. The average success rate for IVF is only 15.2% per cycle. See Dallman, supra 58. Fidler & Berstein, supra note 18, at 497; Lang, supra note 56.
59. See Arrow, supra note 31, at 961–64 (discussing role insurance plays in health [I]nvestigators found that there was widespread inappropriate use ofClomid [a common fertility drug]. For example, there is no scientificevidence to show that this drug can benefit women without ovulatorydysfunction, yet medical records show that 52% of the infertile womenwho took Clomid in the Seattle study had normally functioning ovaries.
Twelve earlier studies also showed an increased ovarian cancer rateamong the women given the infertility drug, but only among those whodidn’t get pregnant.
additional cost of comprehensive infertility coverage is estimated at$1.71 per month.62 Another analysis showed that the cost effect onpremiums is slight when spread out over a large enough group, onlyraising premiums between $0.60 to $2.00 per month.63 One commen-tator concluded that, “One may certainly wonder what the ruckus is allabout—these prices do not appear prohibitive, nor does it appear thatthere will be a ‘drastic’ increase in the cost of the coverage.”64 A 1997 National Center for Policy Analysis (NCPA) report al- leged a much higher premium increase as a result of mandated bene-fits for infertility, raising the cost of a policy from $105 to $175 peryear, or a 3% to 5% increase in premiums over a standard familypolicy.65 The difference in estimates may reflect the difference be-tween group and individual insurance policies. Group insurance poli-cies are generally more comprehensive and their rates are lowerbecause they are able to spread risk across a larger pool of members.
However, group policies also tend to have more restrictions and utilizemanaged care principles. Individual insurance policies, on the otherhand, tend to attract less healthy members and have much higher pre-miums as a consequence.66 The cost of any type of mandate will also depend on how such a mandate is structured. Of the thirteen states that have some form ofinfertility insurance mandate, three states (California, Connecticut,and Texas) merely require that insurance companies offer policies thatcontain infertility benefits, allowing individuals to opt into the groupwithout requiring that all individuals share the costs, rather than man-dating that all policies provide coverage for infertility.67 Of the statesthat require coverage of infertility treatments, variations exist in both Reproductive Entitlement, AM. PROSPECT, Mar. 27, 2000, at 63. Rhonda Tischler, Note, Infertility: A Forgotten Disability, 41 WAYNE L. REV.
64. Id.
66. See INSURANCE BUYER’S GUIDE, BASIC TYPES OF HEALTH INSURANCE, at http:// (last visited Nov. 18, 2001) (“Group cover-age is generally more comprehensive and group rates generally lower because their[sic] is strength in numbers.”); RESOLVE, HEALTH INSURANCE COVERAGE OF INFER-TILITY TREATMENT, at (last visited Nov. 18,2001) (“[I]t is often difficult and very expensive to purchase individual insurancepolicies.”).
67. CAL. HEALTH & SAFETY CODE § 1374.55(a) (West 2000); CONN. GEN. STAT.
ANN. § 38a-536 (West 2000); TEX. INS. CODE ANN. § 3.51-6 (3A)(a) (Vernon Supp.
specificity and scope as to whether HMOs are included,68 whethercoverage must include IVF,69 how infertility is defined,70 whetherbenefit caps are used,71 and whether small businesses are exempt.72Clearly, a mandate to offer coverage costs less to employers than amandate to cover, but the overall cost of even the most ambitiousmandates seems to be small. However, as the NCPA study shows, amandate to offer coverage may result in policies that cost individualsslightly more per year because they do not have the benefit of spread-ing costs over the largest risk pool.
Oliver Wendell Holmes famously observed, “The life of law has not been logic: it has been experience.”73 What is the law to do, then,when logic dictates one result, and experience another? Experiencetells us that infertility is not a disability in the same sense as the loss ofa limb or a degenerative disease. Infertility poses no threat to the pa-tient’s physical health if left untreated.74 Aside from the psychologi-cal trauma that might accompany diagnosis, it does not directly affectthe participation of men or women in the economy or in public life.75 68. Compare ARK. STAT. ANN. §§ 23-85-137(a), 23-86-118(a), 23-76-104 (Lexis 1999 & Supp. 2001) (providing for infertility coverage by insurance companies butexempting HMOs from most insurance industry regulations), with MASS. GEN. LAWSANN. ch. 175 § 47H (West 1998) (allowing inclusion of HMOs).
69. Compare MD. CODE ANN., INS. § 15-810(b)(1) (Supp. 2001) (specifically prohibiting exclusion of benefits for IVF), with CAL. HEALTH & SAFETY CODE§ 1374.55(a) (West 2000) (exempting IVF benefits from requirement to offer infertil-ity treatment coverage).
70. Compare MASS. GEN. LAWS ANN. ch. 175, § 47H (West 1998) (defining infer- tility as “the condition of a presumably healthy individual who is unable to conceiveor produce conception during a period of one year”), with CONN. GEN. STAT. ANN.
§ 38(a)-536 (West 2000) (defining infertility to also include inability to retain preg-nancy during period of one year).
71. Compare 215 ILL. COMP. STAT. 5/356m(b)(1)(B) (West 2000) (limiting number of egg retrievals to six), with Ark. Ins. Rules and Reg. 1, WL AR ADC INS 1 (requir-ing lifetime maximum benefit cap of no less than fifteen thousand dollars).
72. Compare 215 ILL. COMP. STAT. 5/356m(a) (West 2000) (limiting mandate to policies covering more than 25 people), with MASS. GEN. LAWS ANN. ch. 175, § 47H(West 1998) (tying mandate to provide infertility coverage only to policies that pro-vide other pregnancy-related benefits, but not specifically exempting smallbusinesses).
74. Kaminer, 75. However, it is often noted that a woman’s reproductive capacity is partially to blame for the persistence of the “glass ceiling” for female business executives. See,e.g., Margaret Littman, Where the Girls Aren’t, CHICAGO MAG., Mar. 2001, at 83,126–27 (quoting Linda Stroh, Professor of Human Resources at Loyola University in All told, infertility treatments can be fairly criticized as a luxury itemin a health care market that leaves millions without basic services.
At the same time, however, the desire to bear children and raise a family is deeply ingrained across all cultures of the world andthroughout history. Femininity has long been symbolically associatedwith fertility.76 Theologians,77 philosophers,78 authors,79 and popularicons80 have all played a part in the social construction of women asmothers. The courts have, for the most part, paid deference to thenotion that “pregnancy is different” in their jurisprudence on repro-ductive health issues, although not always with advantages redoundingto the women involved.81 Although patriarchal assumptions ofwomen’s roles have strongly influenced this social construction of fer-tility, it is impossible to deny that the distinction between genders islargely defined by the reproductive capacities and roles of women andmen, and that infertility uniquely interferes with the self-identity ofmany women. However, it is still a leap to equate this psychological Chicago as saying, “[T]here still is that perception that women who have children areless serious about their careers. As long as there is still that perception, these types of[on-site childcare and flextime] programs don’t help women climb the ladder.”).
76. See Paula Abrams, The Tradition of Reproduction, 37 ARIZ. L. REV. 453, 461 (1995) (“Nonprocreative intercourse was viewed as illicit. It is no accident that con-traception was first regulated in this country as obscenity.”).
77. Id. at 475 (“Women are saved from Eve’s original transgression by bearing children. The women in the Old Testament were ruled by their wombs.”).
78. Id. at 459 (“According to Aristotle, children were among the ‘fewest possible parts’ of the family; thus a childless marriage was not a true oikos because it lackedthe dynamic of self-renewal.”).
79. SIMONE DE BEAUVOIR, THE SECOND SEX 523 (H.M. Parshley trans., Vintage Books 1989) (1952) (“[I]t is often said of a women that she is coquettish, or amorous,or lesbian, or ambitious, ‘for lack of a child;’ her sexual life, the aims, the values shepursues, would in this view be substituted for a child.”).
Little Star, on RAY OF LIGHT (Warner Bros. Records 1998) (“God gave a present to me/Made of flesh and bones/My life/My soul/You make my spiritwhole.”). Ray of Light is often described as Madonna’s “maternity album,” which sherecorded after giving birth to her first child.
81. Elizabeth A. Reilly, The Rhetoric of Disrespect: Uncovering the Faulty Prem- ises Infecting Reproductive Rights, 5 AM. U. J. GENDER & L. 147, 186 (1996) (“De-fining women through their reproductive capacity, the Court then uses it [in variouscases] to isolate them, authorizing special rules that disadvantage women, but seldomupholding schemes that assist women in achieving equality in an unequal world.”);see also Rust v. Sullivan, 500 U.S. 173, 196–203 (1991) (upholding “gag rule” onphysicians in federally funded abortion clinics as consistent with state’s power toencourage childbirth); Muller v. Oregon, 208 U.S. 412 (1908) (upholding restrictivelabor laws on women designed to protect their childbearing capacity); Bradwell v.
Illinois, 80 U.S. (16 Wall.) 130, 139–41 (1873) (reasoning that because woman’s“paramount destiny and mission” is to be wife and mother, she is incompetent to haveseparate career).
interference with other disabilities that have more tangible and fre-quent manifestations, such as paralysis, hearing loss, or blindness.
Nonetheless, the law appears relatively clear that infertility is in- deed a disability and that people with reproductive disorders do havestanding to sue for workplace accommodations and even insurancecoverage for their maladies under the ADA.82 Enacted “to provide aclear and comprehensive national mandate for the elimination of dis-crimination against individuals with disabilities,”83 the ADA washailed as “the greatest expansion of civil rights protections since the1964 Civil Rights Act”84 and the “20th Century Emancipation Procla-mation” for the disabled by its supporters in Congress.85 Modeledafter the Civil Rights Act of 1964, the ADA served as both a remedialmeasure creating civil rights for the disabled suffering from discrimi-nation, and a prospective mandate upon society to accommodate andmainstream millions of disabled Americans into society.86 The man-date of the ADA went beyond simply removing barriers that hinderedthe disabled. The ADA promised “equality of opportunity, full partic-ipation, independent living, and economic self-sufficiency” for peoplewith disabilities.87 The ADA is divided into five titles intended to make various parts of society more accessible to people with disabilities.88 Title Iprohibits disability-based discrimination in the “terms, conditions, andprivileges of employment” against any “qualified individual with adisability.”89 Employer fringe benefits, including employer-providedhealth insurance, are covered by this clause.90 Moreover, the prohibi-tion in Title I extends to “selection criteria that screen out or tend toscreen out an individual with a disability” unless such criteria are 82. 42 U.S.C. §§ 12101–12213 (1994 & Supp. V 2000).
83. Id. § 12101(b)(1) (1994).
84. 136 CONG. REC. 17,368 (July 13, 1990) (statement of Sen. David Durenburger).
85. Id. at 17,369 (statement of Sen. Tom Harkin).
86. Id.
87. 42 U.S.C. § 12101(a)(8); see also Timothy D. Johnston, Note, Reproduction Is Not a Major Life Activity: Implications for HIV Infection as a Per Se Disability Underthe Americans with Disabilities Act, 85 CORNELL L. REV. 189, 196 (1999) (discussingprimary goals of ADA).
88. The first four titles (codified as “subsections” in the United States Code) in- clude prohibitions of disability-based discrimination in employment, public servicesand transportation, places of public accommodation operated by private entities, toservices offered by the telecommunications industry. The fifth title governs “miscel-laneous provisions.” See 42 U.S.C. §§ 12101–12213 (1994 & Supp. V 2000). 89. Id. § 12112(a).
90. Id. § 12112(b)(2); see also Stephen T. Kaminski, Must Employers Pay for Viagra? An Americans with Disabilities Act Analysis Post-Bragdon and Sutton, 4DEPAUL J. HEALTH CARE L. 73, 83 (2000).
shown to be job-related and are justified by business necessity.91 TitleIII prohibits disability-based discrimination in the “full and equal en-joyment” of goods, services, and other advantages provided by placesof public accommodation.92 Such discrimination includes denial ofparticipation, participation in an unequal benefit, or provision of a sep-arate benefit.93 Because it is a federal statute, the ADA reaches self-funded health plans normally exempted from state laws by ERISA. Moreo-ver, the ADA also explicitly holds employers accountable for any dis-ability-based discrimination against their disabled employees by thirdparties, such as traditional insurers, with whom it has contractual rela-tionships concerning those employees.94 One of the questions raised by the language prohibiting discrimi- nation based on “disability” is how “disability” is to be defined underthe ADA. The definition of “disability” under the ADA is “a physicalor mental impairment that substantially limits one or more of the ma-jor life activities of such individual.”95 An individual must establisheach of the three elements of this definition of disability in order tohave standing under the ADA: (1) the presence of an impairment, (2) amajor life activity affected by that impairment, and (3) a showing thatthe major life activity is substantially limited by the impairment. Incases involving infertility claims, the major battles have primarilybeen fought over the question of whether infertility interferes with a“major life activity.” However, for the case of infertility in particular,it is worth examining both whether infertility constitutes an “impair-ment,” and whether it impacts a “major life activity.” An individual bringing a claim under the ADA must have a “physical or mental impairment,” a prior record of such an impair-ment, or be regarded as having such an impairment.96 The EEOC has 91. 42 U.S.C. § 12112(b)(6) (1994).
92. Id. § 12182(a).
93. Id. § 12182(b)(1)(A).
94. Id. § 12112(b)(2); see also Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.6(a) (2000) (pro-viding that, “It is unlawful for a covered entity to participate in a contractual . . .
relationship that has the effect of subjecting the covered entity’s own qualified appli-cant or employee with a disability to . . . discrimination . . .”).
95. 42 U.S.C. § 12102(2)(A) (1994). A person also qualifies under this section if he or she has a record of such impairment, or is regarded as having an impairment,even if they are not presently impaired. Id. § 12102(2)(B)–(C).
provided a list of physical and mental impairments that qualify underthe statute. This list includes “reproductive” body systems as one ofthe several qualifying functions of the body that can be “impaired,”creating a disability.97 The American Society for ReproductiveMedicine defines infertility as “a disease of the reproductive systemthat impairs one of the body’s most basic functions: the conception ofchildren.”98 However, infertility has many causes, some specific to a physio- logical disorder and others more general or undiscovered. A preciseunderlying medical cause can be found in only eighty to ninety per-cent of couples experiencing infertility.99 It is unclear whether infer-tile couples will be able to benefit from the protection of the ADAunless such a precise underlying medical cause can be found, orwhether older women whose infertility accompanies the normal agingprocess will be able to benefit. Therefore, not all persons who desireinfertility treatment may be considered “impaired” under the ADA,although the vast majority are likely to be.
A physical or mental impairment must also affect a major life activity—the second element of a qualifying disability.100 Definingthe scope of “major life activities” has been a major point in the con-troversy regarding the scope of the ADA.101 The implementing regu-lations define “major life activities” to include “functions such ascaring for oneself, performing manual tasks, walking, seeing, hearing,speaking, breathing, learning, and working.”102 The regulations ex-plicitly stipulate that the list of “major life activities” is intended to beillustrative rather than exhaustive, and thus go on to include activitiessuch as “sitting, standing, lifting, [and] reaching” under the defini-tion.103 The activities listed are those which “the average person inthe general population can perform with little or no difficulty.”104 Be-cause of this arguably unclear language, courts have had to deal with 97. See 29 C.F.R. § 1630.2(h)(1).
98. ASRM, supra note 63, at 250. It is unclear whether infertile couples will be able to benefit from the protection of the ADA without a diagnosis of a related medi-cal condition such as blocked fallopian tubes, endometriosis, or of a similar medicalcondition in the male.
100. 42 U.S.C. § 12102(2)(A).
101. For a fuller discussion of this controversy, see infra Part II.B.1.
102. 29 C.F.R. § 1630.2(i).
103. 29 C.F.R. app. § 1630.2(i).
104. Id. the question of when disorders such as infertility interfere with “majorlife activities.” Different Interpretations of “Major Life Activity” The main interpretive dispute about the meaning of the “major life activity” language in the ADA centered around whether “major”meant that the life activity occurred frequently or whether it meantthat the life activity was important.105 The standard argument againstclaims that infertility was a disability, on the grounds that it did notadversely impact a “major life activity,” was articulated in Krauel v.
Iowa Methodist Medical Center.
106 Mary Jo Krauel was a forty-one-year-old employee of the Iowa Methodist Medical Center who sought coverage under the hospital’sself-insured benefits plan for infertility drugs, doctor visits, and a suc-cessful gamete intrafallopian transfer (GIFT) procedure.107 The plandenied coverage on the basis of a written exclusion to its coverage forthe treatment of “ ‘fertility or infertility problems.’ ”108 The Krauelcourt found three grounds for dismissing her claim under the ADA.
First, the court held that there was no discrimination under the statute,since reproduction was a “lifestyle choice” and not a “major life activ-ity” that occurred on a daily basis.109 Unlike the other listed terms,the court noted that, “Some people choose not to have children, but allpeople care for themselves, perform manual tasks, walk, see, hear,speak, breathe, learn, and work, unless a handicap or illness preventsthem from doing so.”110 Thus, the frequency and universality of thelisted “major life activities” were used as evidence that reproductionshould not be included.111 Other courts rejected Krauel’s reasoning, and characterized re- production as a “major life activity.” In Pacourek v. Inland SteelCo.,112 the District Court for the Northern District of Illinois deniedan employer’s motion to dismiss an employee’s claim that she wasterminated as a result of her infertility, reasoning that because the reg- 105. See Pacourek v. Inland Steel Co., 916 F. Supp. 797, 804 (N.D. Ill. 1996) (find- ing importance of life activity to be more of a factor than its frequency).
106. 915 F. Supp. 102 (S.D. Iowa 1995), aff’d, 95 F.3d 674 (8th Cir. 1996).
107. Id. at 105.
108. Id.
109. Id. at 106.
110. Id. at 106 n.1.
111. In addition, the Krauel court invoked the reason that infertility was a condition that affected both disabled and nondisabled individuals as grounds for denying relief.
Id. at 108.
112. 858 F. Supp. 1393 (N.D. Ill. 1994).
ulations list disorders to the reproductive system as qualifying physi-cal impairments, procreation and reproduction must have beencontemplated as major life activities.113 In other words, the court feltthat excluding reproduction from the definition of “major life activi-ties” would render the mention of “reproductive” body systems in theEEOC regulations moot, since no other major life activity wouldlikely be substantially limited by reproductive disorders.
This reasoning was rejected as circular “bootstrapping” in Zatarain v. WDSU-Television.114 The Zatarain court argued that thePacourek court collapsed two separate inquiries—whether there wasan impairment, and whether that impairment affected a major life ac-tivity—into one.115 However, the Pacourek court, in a second opin-ion dismissing the motion for summary judgment put forth by theemployer, replied with an even more ringing endorsement of repro-duction as a major life activity on its own terms, criticizing theZatarain and Krauel courts of “trivializing” reproduction.116 Becausereproduction is integral to the life process itself, the court reasoned, itshould be considered major on its own terms.117 The unspoken corol-lary to this logic, however, is that if reproduction is considered a ma-jor life activity, then almost all disorders that substantially impairreproduction constitute per se disabilities under the ADA.118 The Supreme Court Speaks: Bragdon v. Abbott The Supreme Court seemingly ended this debate over whether reproduction constitutes a “major life activity” with its 5-4 decision inBragdon, where the Court agreed with the reasoning in Pacourek byexplicitly holding that “[r]eproduction and the sexual dynamics sur-rounding it are central to the life process itself,” and thus were wellwithin the “major life activities” contemplated by the ADA.119 How-ever, this analysis has been fiercely criticized by many.120 In his sepa-rate opinion, joined by Justices Scalia, O’Connor, and Thomas, ChiefJustice Rehnquist began by noting the importance of maintaining an 113. Id. at 1404–05.
114. 881 F. Supp. 240 (E.D. La. 1995).
115. Id. at 243.
116. 916 F. Supp. 797, 804 (N.D. Ill. 1996).
117. Id.
118. The exception would most likely be those reproductive disorders that could be mitigated or otherwise fully corrected through treatment. See Sutton v. United AirLines, 527 U.S. 471, 475 (1999) (holding that courts must acknowledge positive andnegative effects of mitigating measures in ‘substantial limitation’ analysis of ADAdisability claim).
119. Bragdon v. Abbott, 524 U.S. 624, 638 (1998).
120. See, e.g., Johnston, supra note 87, at 233.
individualized inquiry in the construction of the ADA, as opposed tocreating per se rules about whether a particular condition constitutes adisability.121 In particular, Rehnquist noted that the statute defines adisability as impacting a major life activity of such individual.122 Af-ter bemoaning the “inartful” usage of the term “activity” to describethe “process” of reproducing, Rehnquist’s opinion attacked the major-ity’s construction of the term “major” for ignoring what he saw as thecommon thread linking all the activities listed in the regulations to-gether—“repetitively performed and essential to the day-to-day exis-tence of a normally functioning individual.”123 In addition to Rehnquist’s vigorous dissent, some commentators and scholars have noted that the logic behind Bragdon is something ofan oddity, and even suggest that it could be abandoned in the nearfuture.124 The decision’s focus on the plaintiff’s reproductive capacityand intentions has been criticized by one commentator as “arbitrarilydistinguish[ing] between individuals based on circumstances . . . thathave nothing to do with the discrimination at issue,” namely, irrationaldiscrimination based on HIV infection and fear of individuals withHIV.125 However, as long as Bragdon remains good law, all peoplewith medically diagnosed reproductive disorders are among the “dis-abled” protected by the ADA.
Saks v. Franklin Covey: The First Test of Bragdon After the Supreme Court’s seeming endorsement of the concept of reproduction as a “major life activity” under the ADA, a case soonarose that tested how lower courts would respond to the Bragdon deci-sion. Rochelle Saks was a thirty-seven-year-old woman who workedas a store manager for Franklin Covey Co., a seller of motivationalfamily-oriented publications including the best-selling self-help book,The Seven Habits of Highly Effective Families.126 Franklin Covey of- 121. 524 U.S. at 657 (Rehnquist, C.J., concurring in part and dissenting in part).
122. Id. at 658–59. This dispute was heightened by the fact that the case dealt with an asymptomatic HIV positive woman who may or may not have been trying to getpregnant at the time.
123. Id. at 659–60.
124. See, e.g., Finley, supra note 7, at 866 (“In addition, given Bragdon’s slim ma- jority, it is reasonable to believe the broad language of that holding could be aban-doned at some future point. If Bragdon results in increasing claims from the infertileand impotent, the minority may sway a Justice to its reasoning because of concernsabout rising healthcare costs.”).
125. Elizabeth C. Chambers, Note, Asymptomatic HIV as a Disability Under the Americans with Disabilities Act, 73 WASH. L. REV. 403, 422–23 (1998).
126. Jane Gross, The Fight to Cover Infertility: Suit Says Employer’s Refusal to Pay Is Form of Bias, N. Y. TIMES, Dec. 7, 1998, at B1.
fered all of its employees a self-insured health benefits plan, adminis-tered through a third-party processing agent.127 However, the plancontained an exclusion for “surgical impregnation procedures,” in-cluding IVF.128 Beginning in 1994, Saks and her husband attemptedto conceive a child, with no success.129 Three years later, Saks wasdiagnosed with a hormonal disorder and prescribed drugs to regulateher ovulation cycle.130 Her health plan refused to cover almost all ofher costs on the basis of its exclusion of infertility treatment, and, afterthe New York District Director for the EEOC found in her favor, Saksfiled suit in the Southern District of New York in September of1999.131 Judge Colleen McMahon quickly disposed of FranklinCovey’s claim that Rochelle Saks lacked standing under the ADA as adisabled person, calling such arguments “simply silly” and “unsup-portable” in light of Bragdon.132 Prior to Judge McMahon’s decision granting summary judgment for Franklin Covey, the conventional wisdom in the New York legalcommunity was that the case was expected to turn solely on the ques-tion of whether infertility was to be considered a disability under theADA.133 Instead, Judge McMahon ruled that although Rochelle Sakshad standing as a disabled person under the ADA, her claims failed todemonstrate discrimination on the basis of her disability.134 This deci-sion surprised many, and leads to more substantial questions about thescope of protection the ADA provides to infertile women.
DIFFERENCES IN THE SCOPE OF PROTECTION UNDER One of the first questions that arose after Saks was whether Rochelle Saks made a critical error by bringing her claim under Title Iof the ADA rather than under Title III. Although it is fairly certainthat employers and those in contractual relations with employers areprohibited by Title I from discriminating in the terms and conditions 127. Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 321 (S.D.N.Y. 2000).
128. Id.
129. Id.
130. Id. at 322.
131. Id. at 323.
132. Id. at 324.
133. See, e.g., Lisa Fried, Infertility Treatments: A Case Will Determine Employers’ Liability, N.Y.L.J., Nov. 18, 1999, at 5 (“The case is expected to turn on whether ornot infertility is a disability under the ADA.”).
134. Saks, 117 F. Supp. 2d at 327-28 (finding no discrimination because exclusions applied uniformly to disabled and nondisabled members and were enacted prior topassage of ADA, therefore falling into “safe harbor” exception to ADA).
of employment,135 a circuit split exists as to whether Title III is appli-cable to insurance companies and third-party claims administrators ofemployer-funded health benefit plans.136 A comprehensive treatmentof this question is beyond the scope of this Note.137 Nonetheless, abrief survey of the scope of the ADA’s protections under both Title Iand Title III is helpful in understanding how the Saks decision willimpact further claims by advocates for the infertile.
There is no doubt that Title I prohibits “a covered entity” from discriminating on the basis of disability “in regard to . . . [f]ringe ben-efits available by virtue of employment, whether or not administeredby the covered entity.”138 Rochelle Saks brought a claim against heremployer, Franklin Covey, under Title I.139 Some courts have heldthat where third-party administrators exercise control over the level ofbenefits or over some discretionary element of a benefits plan, thatentity falls under Title I as acting in the role of an “employer.”140Depending on the development of facts, it is possible, therefore, thatSaks could have brought an additional claim against the third-partyclaims administrator in her case under Title I. Title III, which prohib-its discrimination in the “full and equal enjoyment of the goods [and]services . . . of any place of public accommodation,” provides an alter-native means of getting to the insurance company or third-party ad-ministrator of the employer’s health benefits plan under the theory thatdisabled individuals are entitled to equal access to the underwritingand actuarial services of insurance companies.141 In Carparts Distri-bution Center v. Automotive Wholesalers’ Ass’n of New England, the 135. See sources cited supra note 90.
136. Compare Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994) (holding that employer health benefit plan isgood or service offered by place of public accommodation within Title III), with Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (holding that employer benefit plans are not goods offered by places of public accommodation).
137. For a comprehensive discussion of this topic, see Bonnie Poitras Tucker, Insur- ance and the ADA, 46 DEPAUL L. REV. 915 (1997); Jeffrey S. Manning, Comment,Are Insurance Companies Liable Under the Americans with Disabilities Act?, 88CAL. L. REV. 607 (2000).
138. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.4(f) (2001).
139. Saks, 117 F. Supp. 2d at 323.
140. See Carparts Distribution Ctr., Inc., 37 F.3d at 17 (“employer” includes any group that “exercise[s] control over an important aspect of . . . employment”); Bootsv. Northwestern Mut. Life Ins. Co., 77 F. Supp. 2d 211, 214 (D.N.H. 1999) (acceptingCarparts’ definition of “employer”).
First Circuit explicitly held that Title III governs the provision of ser-vices irrespective of whether access to a physical place is at issue.142Other circuits, such as the Third and the Sixth, have explicitly dis-agreed with the First Circuit, and have held that Title III is primarilyconcerned with access to and equal treatment at physical places ofpublic accommodation.143 Title III does seem to provide for more comprehensive, integra- tive protection for disabled individuals than Title I. Although bothTitle I and Title III specifically prohibit “criteria that screen out ortend to screen out an individual with a disability or a class of individu-als with disabilities,”144 Title III creates additional affirmative obliga-tions upon places of public accommodation to not only “makereasonable modifications in policies, practices, or procedures, whensuch modifications are necessary,”145 but also to “take such steps asmay be necessary to ensure that no individual with a disability is ex-cluded, denied services, segregated, or otherwise treated differentlythan other individuals.”146 Whereas Title I seems to require only thatemployers provide equal access to the same policy to both disabledand nondisabled individuals,147 the text of Title III seems to requirethat insurance companies take affirmative steps to provide actual sub-stantive equality of value between the disabled and the nondisabled.
Therefore, at least at first glance, it appears as though Title III pro-vides a somewhat better method for reaching insurance companiesthan would Title I.
142. 37 F.3d at 20.
143. See Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999) (“[W]e part company with the First Circuit in this re-gard.”); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1013 (6th Cir. 1997) (“We . . .
disagree with the First Circuit’s decision in Carparts . . . .”). But cf. Nondiscrimina-tion on the Basis of Disability by Public Accommodations and in Commercial Facili-ties, 28 C.F.R. § 36 app. B (2001) (“It is the public accommodation, and not the placeof public accommodation, that is subject to the regulation’s nondiscrimination re-quirements.”) (emphasis added).
144. 42 U.S.C. §§ 12112(b)(6), 12182(b)(2)(A)(i) (1994).
145. Id. § 12182(b)(2)(A)(ii).
146. Id. § 12182(b)(2)(A)(iii) (emphasis added).
147. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 [T]his part is intended to require that employees with disabilities be ac-corded equal access to whatever health insurance coverage the employeroffers to other employees. . . . [B]enefit plans that are uniformly applieddo not violate this part simply because they do not address the specialneeds of every individual with a disability.
Doe v. Mutual of Omaha—Limiting the Scope of Title III Despite this initial optimism, in 1999, the Seventh Circuit cast a dark shadow on claims of insurance discrimination based on dispari-ties in the substantive value of a policy between disabled and nondis-abled individuals, whether such claims were brought under either TitleI or Title III.148 In Doe v. Mutual of Omaha, Chief Judge RichardPosner argued that nothing in the ADA required that insurance poli-cies provide equal value to the disabled and the nondisabled.149 Mu-tual of Omaha had issued health insurance policies with specificmonetary caps on treatments for AIDS and AIDS-related complexesthat were set well below the caps for other conditions.150 The districtcourt had ruled against Mutual of Omaha on a motion to dismiss,holding that Title III extended not only to mere access to, but to thevery substance of insurance policies.151 Mutual of Omaha subse-quently appealed the denial of their motion to the Seventh Circuit.
In an eloquent but logically convoluted decision reversing the district court, Judge Posner first observed that benefit caps are presentin almost all insurance policies, and that regulating the content of in-surance policies “would discriminate among diseases,” as those ail-ments that also happened to be disabilities could not have capsimposed on them.152 Mutual of Omaha had put a cap of $25,000 inone policy and $100,000 in another for lifetime AIDS-related benefits,whereas all other conditions had a lifetime benefit cap of $1 mil-lion.153 Had the court ruled that the ADA applied in this situation, themost reasonable accommodation would have been to make the AIDSbenefit cap the same as the benefit cap for all other conditions, therebyeliminating any discrimination against AIDS treatment.
Judge Posner then raised the right of the insurance company to simply not offer certain forms of coverage. He analogized the insur-ance policy to a bookstore and paraphrased an oft-quoted metaphorfrom the Justice Department’s implementing regulations on Title III,noting that just as the ADA did not require bookstores to stock braillebooks to accommodate the blind, insurers should not be required to 148. Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), cert. denied, 528 149. Id. at 563 (“[The ADA] does not require a seller to alter his product to make it equally valuable to the disabled and to the nondisabled, even if the product isinsurance.”).
150. Id. at 558.
151. Doe v. Mut. of Omaha Ins. Co., 999 F. Supp. 1188, 1194, (N.D. Ill. 1998), rev’d, 179 F.3d 557 (7th Cir. 1999), cert. denied, 529 U.S. 1106 (2000).
152. 179 F.3d at 559.
153. Id. at 558.
alter the nature and content of their policies and procedures in order toguarantee insurance to people with disabilities.154 This analogy tobraille books has been repeated in a number of cases to draw a brightline distinction between access and content regulation.155 However, this analogy fails for three reasons. First, it miscon- strues the Justice Department’s original point in making the analogy toretail goods. Second, it presumes that insurance benefits are goodsand not services. Third, it ignores the specific and exclusionary natureof the discrimination found in insurance policies.
The braille books analogy is used in the Justice Departments im- plementing regulations, but only with regard to “accessible or specialgoods” in facilities like retail outlets.156 Further, in order to determinethe intent of the Justice Department and Congress with respect to thescope of the ADA’s protections, a separate section in the commentaccompanying the final rule discussing insurance practices is enlight-ening. The Justice Department concluded that “Congress intended toreach insurance practices by prohibiting differential treatment of indi-viduals with disabilities in insurance offered by public accommoda-tions unless the differences are justified.”157 Thus, the JusticeDepartment believed, at the very least, that the “refusal to stock” sce-nario illustrated by the braille books analogy simply did not apply tothe goods and services offered by insurance in particular.
Second, the access/content dichotomy only makes sense when in- surance policies are viewed as goods instead of service contracts.158Unlike books, insurance contracts are not intrinsically valuable goods.
Insurance is literally worth much more than the paper it is printed on.
Insurance is a service that provides protection against the significant 154. Id.; see also Nondiscrimination on the Basis of Disability by Public Accommo- dations and in Commercial Facilities, 28 C.F.R. pt. 36, app. B § 36.307 (2000).
The purpose of the ADA’s public accommodations requirements is to en-sure accessibility to the goods offered by a public accommodation, not toalter the nature or mix of goods that the public accommodation has typi-cally provided. In other words, a bookstore, for example, must make itsfacilities and sales operations accessible to individuals with disabilities,but is not required to stock Brailled or large print books.
155. See, e.g., Lenox v. Healthwise of Ky., Ltd., 149 F.3d 453, 457 (6th Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010–11 (6th Cir. 1997).
156. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 28 C.F.R. § 36.307.
157. Final Rule—Nondiscrimination on the Basis of Disability by Public Accommo- dations and in Commercial Facilities, 56 Fed. Reg. 35,544, 35,562 (July 26, 1991).
158. See 179 F.3d at 560 (“An insurance policy is a product, and a policy with a $25,000 limit is a different product from one with a $1 million limit, just as a wheel-chair is a different product from an armchair.”).
and unpredictable risk of adverse events and financial loss in returnfor advance payments based on principles of actuarial fairness.159 Ac-tuarial fairness principles suggest that insurers link the cost of andaccess to insurance coverage to an individual’s risk class, estimatingan individual’s expected claim costs based on the risk characteristicsof an individual that have a “direct causal or statistical link to the riskthat the insurance company is measuring, such as disability income ormedical expenses.”160 Especially in the context of self-insured em-ployer-based health benefit plans covered by ERISA, where insurancecompanies are often hired merely to process claims and administer theplan rather than provide the plan itself, the distinction between theprovision of goods and services becomes stark, with the insurancecompany appearing to fall firmly on the “services” side of the line.
Employers do not provide for individualized risk classifications butrely instead on blanket limitations that affect all employees, leavinginsurance administrators with the task of applying the blanket rules toindividual cases.161 Once insurance is seen as a service and not a product, the analogy to stocks of braille books completely crumbles.162 There are manybooks that the average bookstore does not have in stock, includingthose in braille. However, most bookstores, upon request, will placespecial orders for books from certain publishers as a service. Al-though no one would fault the bookstore as biased against the blindfor its failure to keep braille books in stock, most would accuse thatsame bookstore of discrimination if it refused to special order a bookfrom a publisher that it would otherwise deal with, solely on the basisthat the order was made by a blind customer.163 Insurance acts as a 159. Jill L. Schultz, Note, The Impact of Title III of the Americans with Disabilities Act on Employer-Provided Insurance Plans: Is the Insurance Company Subject toLiability?, 56 WASH. & LEE L. REV. 343, 352 (1999).
160. Id. at 353.
161. Id.
162. Circuit Judge Evans, in his dissent in Doe, alludes to the distinction between the treatment of goods and services. A store owner who treats customers differentlybased on their disabilities does not discriminate in the provision of goods, but throughthe provision of inferior service: Chief Judge Posner’s opinion likens the insurance company here to acamera store forced to stock cameras specially designed for disabled per-sons. While I agree that the ADA would not require a store owner to alterits inventory, I think the analogy misses the mark. The better analogywould be that of a store which lets disabled customers in the door, butthen refuses to sell them anything but inferior cameras.
163. In fact, the Justice Department’s comments accompanying the Final Rule im- plementing Title III raise this exact point: service, providing reimbursement for the consequences of risks, basedon the rate paid to the insurer. To the extent that a policy specificallyexcludes an otherwise actuarially fair risk on the basis of disability,the insurer is providing discriminatory service to that disabledindividual.
Third, Judge Posner’s reasoning fails to account for the specific and exclusionary nature of insurance policy benefit caps and theirtargeted nature towards the disabled. A bookstore’s “refusal to stock”in most cases is an act of omission, whereas an insurance companyaffirmatively commits to excluding a disability, either by excludingthe individuals with disabilities or excluding coverage for the treat-ments that they require to overcome their disability. A bookstore thatwould otherwise special order books for the disabled but singles outbraille as an example of a book it would not stock or special ordershould be more readily required to provide a nondiscriminatory justifi-cation for that policy of exclusion than a bookstore that simply doesnot have any braille books in stock. As the comments accompanyingthe Title III implementing regulations establish, “[A] public accom-modation may offer insurance policies that limit coverage for certainprocedures or treatments, but may not entirely deny coverage to a per-son with a disability.”164 Once insurance is seen as a service and not aretail good, the rhetorical force of the entire access/content debate col-lapses on itself, and remedial actions that were seen as intruding uponthe substance of a good transform into pragmatic calls for equal accessto equal services.
Given that Judge Posner’s analogy of insurance to consumer goods fails on several levels, it may be possible that claims could bebrought against an insurance company under Title III. Title III’sbroader scope may enable courts to more readily find that a com-pany’s insurance practices violate the ADA when they deny coveragefor infertility treatments.
Although a public accommodation is not required by § 36.307(a) to mod-ify its inventory, it is required by § 36.307(b), at the request of an indi-vidual with disabilities, to order accessible or special goods that it doesnot customarily maintain in stock if, in the normal course of its operation,it makes special orders for [such] unstocked goods. . . .
Final Rule, Title III, 56 Fed. Reg. 35,544, 35,571 (July 26, 1991).
PROVING DISCRIMINATION: THE MISSING DISPARATE Regardless of whether a claim under the ADA is based on Title I or Title III, “discrimination” must be proven. Each section has dis-tinct requirements for what must be proven in order to show discrimi-nation. Under Title I, the definition and construction of discriminationincludes effects-based methods of proof, such as “participating in acontractual or other arrangement or relationship that has the effect ofsubjecting a covered entity’s qualified applicant” to discrimination165and “utilizing standards, criteria, or methods of administration thathave the effect of discrimination on the basis of disability.”166 TitleIII allows for proof of discrimination through the same effects-baseddisparate treatment language,167 but it also creates affirmative obliga-tions upon “place[s] of public accommodation” to create “the mostintegrated setting appropriate” to the needs of disabled individuals.168Much like the leaders of the civil rights battles fought before them,people seeking to vindicate their rights as disabled individuals mustnow advance theories of “disparate impact,” where uniformly appliedcriteria have an adverse impact on an individual with a disability or adisproportionately negative impact on a class of individuals with disa-bilities. These claims must be articulated in such a way that questionsof access are implicated, as opposed to questions of content.169 How-ever, provided that an actionable claim can be brought under Title III,the inquiry is broadened to include whether the specific exclusion inquestion fulfills the promise of “full and equal enjoyment” of goodsand services.170 In Saks, one of the reasons Judge McMahon dismissed the plain- tiff’s claim was that she had equal access to the same insurance policyas the nondisabled.171 All employees faced the same limitation oncoverage for “surgical impregnation procedures.” Judge McMahon 165. 42 U.S.C. § 12112(b)(2) (1994) (emphasis added).
166. Id. § 12112(b)(3) (emphasis added).
167. Id. § 12182(b)(1)(D) (1994) (“An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods ofadministration that have the effect of discriminating on the basis of disability.”) (em-phasis added).
168. Id. §§ 12182(a), 12182(b)(1)(B).
169. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. § 1630.5 (2001) (discussing “disparate impact” defenses toclaims under the ADA); cf. Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7thCir. 1999) (rejecting claim under ADA based on “disparate impact” evidence).
170. 42 U.S.C. § 12182(a).
171. Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 326 (S.D.N.Y. 2000).
pointed to cases in the Second, Third, Seventh, and Eighth Circuitsthat held “that insurance distinctions that apply equally to all insuredemployees do not discriminate on the basis of disability.”172 JudgeMcMahon noted that other types of procedures, such as penile pros-thetic implants, were also expressly excluded from the terms of thebenefits plan.173 Although Judge McMahon acknowledged that theexclusions for infertility treatments hit infertile employees like Ms.
Saks harder than most, she pointed out that the Second Circuit hadruled in a similar case, involving huge disparities between mentalhealth and physical health benefits, that insurers were under no obliga-tion to provide equal benefits across disabilities.174 Two problems with this analysis seem fairly evident. First, neither of the analogies, to mental health benefits and to penile pros-thetic implants, fit with the previous holding that, under Bragdon, dis-orders to the reproductive system constituted per se disabilities. Asanother district court noted in Boots v. Northwestern Mutual Life In-surance Co., “Just as most employees who use their health insuranceto cover medical costs are not physically disabled, most employeesseeking insurance coverage for mental health treatment are not men-tally disabled.”175 Under this reasoning, if nondisabled people have amedical need for a particular procedure, a policy that limits or ex-cludes that procedure is not making a disability-based distinction. Al-though it is true that, in theory, nondisabled couples could use surgicalimpregnation methods, post-Bragdon they would have no medicallynecessary reason for doing so, since all infertile couples are, by defini-tion, disabled. The only people upon whom this exclusion falls are thereproductively disabled. To argue that there is no disability-based dis-tinction because non-infertile people are affected is like arguing thatbecause nondisabled people could use wheelchair ramps, failure to in-stall a ramp does not discriminate against the wheelchair bound.
A most glaring and somewhat disturbing omission from the deci- sion in Saks was the failure of the court to perform the disparate im-pact analysis required by the ADA in order to determine whether theplaintiff proved discrimination. Under both Titles I and III, if the ef-fect of a facially neutral policy, practice, or procedure is to have adisproportionately negative impact on a class of similarly-situated dis-abled individuals, then the burden shifts to the covered entity or public 172. Id. at 326–27 (citing EEOC v. Staten Island Sav. Bank, 207 F.3d 144, 150 (2d 173. Id. at 327.
174. Id. (citing Staten Island Savings Bank, 207 F.3d at 150).
175. 77 F. Supp. 2d 211, 220 (D.N.H. 1999).
accommodation to show that the policy, practice, or procedure is job-related and justified by business necessity.176 Typically, disparate impact analysis is relied upon chiefly in Title I cases, as Title III addresses the various forms of “disparate treat-ment” that can occur at a place of public accommodation. Disparatetreatment, where a person is being treated differently because of mem-bership in a protected class, may be proved either through directevidence or by inference.177 Direct evidence of intentional discrimi-nation is difficult to produce, as discrimination against the disabledtypically takes on complex and subtle forms.178 Disparate impact the-ory enables facially neutral practices that have a discriminatory, dispa-rate impact on members of the protected class to be deemed“discriminatory,” and therefore forbidden by the ADA and other civilrights laws.179 Much of disparate impact theory was formed as a response to the enactment of the Civil Rights Act of 1964.180 In a unanimous opinionby Chief Justice Warren Burger in 1971, the Supreme Court held inGriggs v. Duke Power Co. that Title VII of the Civil Rights Act pro-hibited not only practices adopted with an explicitly discriminatorymotive, but also practices that, though adopted without discriminatoryintent, have a discriminatory effect on minorities.181 Griggs left a tre-mendous legacy and served as the anchor for a workable and widelyaccepted set of legal principles on how to prove a disparate impactcase.182 Under the Griggs standard, the plaintiff in an ADA action first must meet a very high level of proof. Specifically, the complainingparty must prove that the procedures in question adversely select ap-plicants on the basis of disability. Once this showing is made, theburden of persuasion shifts back to the employer, whose only real de-fense is that the procedures that have a discriminatory effect are theresult of a “business necessity.”183 As applied to the Saks case, the 176. 42 U.S.C. §§ 12112(b)(6), 12182(b)(2)(A) (1994).
177. Ellen M. Saideman, The ADA as a Tool for Advocacy: A Strategy for Fighting Employment Discrimination Against People with Disabilities, 8 J.L. & HEALTH 47, 51(1993).
178. Id.
179. Id. at 52.
180. Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (codified as amended in 181. 401 U.S. 424, 429–33 (1971).
182. See Alfred W. Blumrosen, The Legacy of Griggs: Social Process and Subjec- tive Judgments, 63 CHI-KENT L. REV 1, 10–11 n.53 (1987) (charting citations ofGriggs by various adjudicatory bodies).
initial proffer of discrimination would have been quite easy: The ex-clusion targeted and caused most, if not all, of the discriminatory cov-erage denials to be suffered by reproductively disabled employees.
The EEOC has made it clear that there is a difference between simplydenying coverage for a particular treatment, which is acceptable, anddenying access to coverage for an entire disability, which is not.184By excluding coverage for artificial insemination and related proce-dures, employers like Franklin Covey Co. and their insurers assuredthat their reproductively-disabled employees would be excluded fromfull and equal access to the company’s health plan. If nothing else, thesignificance of standing under the ADA means that no longer shouldsimple facial neutrality justify differential treatment across thereproductively disabled as a protected class.
The disparate impact case in Saks is perhaps best illustrated by the statement in Bray v. Alexandria Women’s Health Center that “[a]tax on wearing yarmulkes is a tax on Jews.”185 However, in Bray, theCourt distinguished the antiabortion protesters blocking abortion clin-ics as not harassing women in violation of sex discrimination laws,even though the only people seeking abortions at the time werewomen.186 While the link in identity is so strong between yarmulkesand Jews that the tax singles out an “irrational object of disfavor,”187the Court argued that the link between women as a class and womenseeking abortions is less so because the protesters were blocking andharassing, not because of, but rather in spite of, the fact that thoseseeking abortion were only women. Anti-abortion demonstrators wereprotesting the abortions themselves, and arguably not the women whosought them. The question in the context of infertility is whether anynondisability-based justifications need be provided by employers andinsurers who enact specific treatment exclusions that only affect theinfertile.
LEGITIMATE DISABILITY-BASED DISTINCTIONS: THE The second justification made by the Saks court for dismissing Ms. Saks’s claim was grounded in the “safe harbor” insurance excep- 184. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35,544, 35,563 (July 26, 1991) (codified at 28C.F.R. pt. 36).
185. 506 U.S. 263, 270 (1993).
186. Id.
187. Id.
tion to the ADA.188 Title V of the ADA specifically carves out anexception for insurers and other entities that administer health benefitplans from “underwriting risks, classifying risks, or administeringsuch risks that are based on or not inconsistent with State law” orotherwise administering a “bona fide benefit plan.”189 This “safe har-bor” exception for health insurers, however, cannot be used as a “sub-terfuge to evade the purposes” of Titles I and III.190 The Saks courtfound that Franklin Covey Co.’s benefit plan fell within the “safe har-bor” exception. In addition, Judge McMahon adhered to Second Cir-cuit precedent, which held that benefit exclusions adopted by self-insured plans prior to the passage of the ADA “by definition” were notadopted as subterfuge of the purposes of the statute.191 However, bothof these arguments misinterpret the intent and goals of the ADA.
Title V creates a safe harbor only for insurance plans which “classify risks” in a bona fide manner.192 Under Title V, differentialtreatment of disabilities is not “discrimination” for purposes of theADA when such differences in extent of coverage or rates charged arepractices “based on sound actuarial principles or [are] related to actualor reasonably anticipated experience.”193 However, an employer maynot entirely shut out a disabled employee from equal access to healthbenefits,194 nor may it make disability-based distinctions in treatmentas a subterfuge to circumvent the ADA.195 The subterfuge languagethus provides an exception to the general rule that insurers may under-write and classify risks to account for disability-based distinctions intheir policies. If an insurance provision is based on sound actuarial 188. Saks v. Franklin Covey, 117 F. Supp. 2d 318, 327–28 (S.D.N.Y. 2000).
189. 42 U.S.C. § 12201(c) (1994).
190. Id.
191. 117 F. Supp. 2d at 328 (citing Leonard F. v. Israel Discount Bank of New York 192. 42 U.S.C. § 12201(c).
193. Id.; see also H.R. REP. NO. 101-485, pt. 2, at 136–37 (1990); Nondiscrimina- tion on the Basis of Disability by Public Accommodations and in Commercial Facili-ties, 28 C.F.R. § 36.212 (2000) (stating that employers do not have to provide thatsame level or quality of coverage across disabilities and disorders, but must provideequal access to insurance coverage to people with disabilities.).
194. Anderson v. Gus Mayer Boston Store of Delaware, 924 F. Supp. 763, 778–79 (E.D. Tex. 1996) (holding that employer’s complete exclusion of disabled employeefrom health benefits could not be based on actuarial risks, as no person isuninsurable).
195. See 42 U.S.C. § 12201(c); 28 C.F.R. § 36.212 (forbidding “subterfuge to evade principles or other “legitimate risk classification and underwriting pro-cedures,” there is no subterfuge of the ADA.196 The EEOC’s Interim Guidance on Implementation of the ADA (Interim Guidance) makes several recommendations as to how courtsshould view the subterfuge issue.197 For example, once it is deter-mined that a health plan makes a disability-based distinction, the em-ployer has the burden of proof to show that the plan is bona fide andthat the distinction is legitimate and supported by “legitimate actuarialdata, or by actual or reasonably anticipated experience.”198 This neednot be an overwhelming burden for employers to bear, since the In-terim Guidance indicates that not all health-related plan distinctionsdiscriminate on the basis of disability, especially if they are limitationson particular treatments or procedures and are applied across the boardto all insured employees regardless of their disability status.199 TheInterim Guidance cites the example of health insurance plans that pro-vide fewer benefits for “blood transfusions or X-rays” than for otherphysical conditions as an example of such a nondiscriminatory limita-tion, even though the differential treatment may have a greater impacton certain individuals with disabilities.200 The Interim Guidanceviews as suspect health-related insurance distinctions that target orsingle out a particular disability, such as AIDS, or a discrete group ofdisabilities, such as preexisting blood disorders.201 An issue of central importance in determining the duties of insur- ers toward individuals with disabilities is whether the ADA creates anabsolute “safe harbor” for employer benefit plans that were estab-lished before 1991, the year the ADA became law, or whether theADA has retroactive effect. The argument for the safe harbor positionturns on the controlling weight given to the case of Public EmployeesRetirement System v. Betts.202 Although that case involved the Age 196. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, INTERIM ENFORCEMENT GUI- DANCE ON THE APPLICATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990 TODISABILITY-BASED DISTINCTIONS IN EMPLOYER PROVIDED HEALTH INSURANCE 13(1993) [hereinafter EEOC, INTERIM GUIDANCE], at
197. Id. at 12–15.
198. Id. at 13 (footnote omitted).
199. See id. at 11 (“In the health insurance context, it is the respondent employer . . .
who has control of the risk assessment, actuarial, and/or claims data relied upon inadopting the challenged disability-based distinction. . . . Consequently, it is the em-ployer who should bear the burden of [proof] . . . .”).
200. Id. at 8.
201. Id. at 8–9.
202. 492 U.S. 158 (1989) (holding that pre-ADEA benefit plan could not be subter- fuge, and that subterfuge required showing of employer’s specific intent to discrimi-nate in some non-fringe aspect of employment).
Discrimination in Employment Act (ADEA), the courts have notedthat the ADA adopted the subterfuge language straight from theADEA, and it is argued that the precedents interpreting that languagetransfer over to the ADA as well.203 If Betts is controlling on thequestion of subterfuge, plaintiffs would have the burden of provingspecific intent to discriminate against the disabled in a non-fringe-ben-efit aspect of employment.204 The EEOC Interim Guidance, however, explicitly disclaims the application of Betts to the ADA, stating that “the ADA does not pro-vide a ‘safe harbor’ for health insurance plans that were adopted priorto its July 26, 1990 enactment. As the Senate Report states, subter-fuge is to be determined ‘regardless of the date an insurance or em-ployer benefit plan was adopted.’ ”205 Moreover, the EEOC defines“subterfuge” as “disability-based disparate treatment that is not justi-fied by the risks or costs associated with the disability.”206 The EEOChas provided a nonexclusive list of potential justifications for allegeddisparate treatments, including proof denying that the defendant hasengaged in the disability-based disparate treatment alleged; the dispa-rate treatment is cost-justified by legitimate actuarial data or by actualor reasonably-anticipated experience; disparate treatment is necessaryto ensure compliance with standards for fiscal soundness of the plan;the challenged activity is necessary to prevent unacceptable change ineither the coverage of the plan or in the premiums charged; or that thetreatment would not provide any benefit to the disabled person.207According to the EEOC, whether a particular challenged disability-based distinction is being used as a subterfuge is to be determined on acase-by-case basis, considering the totality of the circumstances.208 Agency interpretations of statutes, such as the EEOC’s Interim Guidance, are generally granted great deference, even on strictly legalissues, provided the interpretation is reasonable and not in conflictwith the expressed intent of Congress.209 In this case, the legislative 203. EEOC v. Aramark, 208 F.3d 266, 269–73 (D.C. Cir. 2000).
204. See 492 U.S. at 181 (“Thus, when an employee seeks to challenge a benefit plan provision as a subterfuge . . . the employee bears the burden of proving that thediscriminatory plan provision actually was intended to serve the purpose of discrimi-nating in some non-fringe benefit aspect of the employment relation.”).
205. EEOC, INTERIM GUIDANCE, supra note 196, at 9 (quoting S. REP. No. 101-116, 206. Id. at 12.
207. Id. at 12–15.
208. Id. at 12.
209. See, e.g., Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984) (holding that agency rule-making interpretations are to be given “controllingweight unless they are arbitrary, capricious, or manifestly contrary to the statute.”).
history in the conference reports of both the House of Representativesand the Senate specifically state that the “subterfuge” provision shouldnot be interpreted according to Betts.210 However, it is still unsettledexactly how much deference courts should give to informal pro-nouncements such as the Interim Guidance, which has not gonethrough notice and comment rulemaking procedures.211 Furthermore,some courts have been quick to apply a rule of statutory constructionthat imputes knowledge of Supreme Court interpretations to policy-makers to demonstrate that Congress must have intended to importBetts into the ADA, noting that although Congress reacted to Betts byeliminating the subterfuge clause in the ADEA, it left it in theADA.212 Therefore, it may be difficult for advocates to convincecourts that they should use a definition of “subterfuge” other than theone adopted in Betts.
The Second Circuit has failed to give due deference to the EEOC Interim Guidance, as well as the ADA itself, especially in its decisionin Saks. Section 501(c) prohibits “subterfuge to evade the purposes”of Titles I and III.213 Section 501 was not designed to be a grandfa-ther clause for discriminatory or outdated disability-based blanket ex-clusions that would otherwise be held in violation of the ADA. Readbroadly, the purposes of Titles I and III—ensuring that the disabledhave comprehensive and full access to all the terms, conditions, andprivileges of employment—preexisted the actual passage of the ADA.
Those egalitarian norms are merely an extension of the civil rightsprinciples championed in the Equal Protection Clause of the Four-teenth Amendment.214 Ultimately, the important question should bewhether employers and insurers can cost-justify their blanket exclu-sions of coverage for infertility treatments according to standard actu-arial principles. Is it that unreasonable to ask an organization in thebusiness of underwriting, classifying, and administering risks to ac-commodate the disabled by either offering to cover treatments thatwould improve the quality of life for the disabled or providing somejustification for the exclusion of such treatments? As another district 210. 136 CONG. REC. 17,378 (statement of Sen. Kennedy) (1990); Id. at 17,290 211. See United States v. Mead, 121 S. Ct. 2164, 2173 (2001).
212. See, e.g., Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102, 110 (S.D.
Iowa 1995), aff’d, 95 F.3d 674 (8th Cir. 1996) (rejecting claim that Betts did notapply to ADA); see also Millsap, supra note 18, at 64 (“The fact that the ADA uses the same words as the ADEA in a similar context gives rise to the argument thatCongress intended the Betts definition of subterfuge to apply to the ADA.”).
213. 42 U.S.C. § 12201(c) (2001).
214. U.S. CONST. amend. XIV, § 1.
court noted in Anderson v. Gus Mayer Boston Store of Delaware: “Noactuarial risk makes someone uninsurable.”215 The Saks court’s defer-ential interpretation of “safe harbor” seems to allow insurers and em-ployers to exclude disabilities—and the individuals afflicted bythem—wholesale from the benefit of insurance coverage, without pro-viding actuarial justification, provided that the exclusions took theform of targeting treatments instead of conditions.
Based on a close reading of the events following the Supreme Court’s momentous decision in Bragdon v. Abbott and the battles inthe circuit courts over the scope and purpose of the Americans withDisabilities Act, it appears as if the tide is moving away from infertilecouples and their dreams of insurance coverage that could help easethe financial burden of achieving a successful pregnancy. The generalacceptance of infertility as a disability has not resolved the debate asto whether employers can specifically exclude medically necessary in-fertility treatments without actuarial justification under the ADA. TheSaks decision illustrates that this debate continues.
It is evident that the court in Saks was only giving lip service to the notion that infertility constituted a truly protected disability underthe ADA. If not, the holding has profound implications for the scopeof protection provided to any and all disabled people under the ADA.
It would be inconceivable to argue that an insurer could exclude cov-erage of wheelchairs specially designed for people with multiple scle-rosis, for example, without triggering a violation of the ADA. Such adistinction would indeed constitute a “tax on wearing Yarmulkes”against the disabled, and might well be approved if the logic in Saks isextended.
Despite having held that all clinically diagnosed infertility was a disability because it intrinsically limited the major life activity of re-production, in the context of surgical impregnation procedures thecourt in Saks seemed perfectly comfortable arguing that treatment-based exclusions did not single out the disabled. It is often said that awoman cannot be “a little bit pregnant.” However, infertile womenseem to be viewed by the Saks court as only a “little bit disabled,” andtherefore only a little bit entitled to the same protections as othermembers of their protected class. The holding in Saks presents dra-matic implications not just for the infertile and their advocates, but forall persons committed to the rights of the disabled under the ADA.
215. 924 F. Supp. 763, 779 (E.D. Tex. 1996).


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