Gender discrimination within the reproductive health care system: Viagra v. birth control.

• Author: Hayden, Lisa A.

1. INTRODUCTION

   Recently, Pfizer Inc. drew nationwide attention by announcing the Federal Drug Administration (hereinafter "FDA") approval of its impotence pill, Viagra. Dubbed as the "magic blue pill," early studies indicate that Viagra enables men diagnosed with impotence to become aroused and engage in sexual intercourse.(2) National attention surrounding Viagra has prompted many insurance carriers to cover at least a part of the cost of the prescription.(3) In fact, by May 1, 1998 nearly half of all Viagra prescriptions were subsidized by insurance carriers.(4) However, the health care industry's warm response to Viagra has renewed debate regarding the apparent inequity of health care coverage between men and women.(5) Specifically, health care critics attack those insurance carriers who continue to refuse coverage of contraceptives for women while providing prescriptive coverage of Viagra for men.(6)

   For years women have protested the apparent inequity demonstrated by insurance carriers that claim to provide full prescriptive coverage to all enrolled members yet deny coverage of prescription contraceptives.(7) Most recently, the Alan Guttmacher Institute, a national research center, conducted a survey and concluded that half of fee-for-service, large employer group health plans do not cover any method of contraception, and only fifteen percent of group health plans provide coverage for the five most common types of contraceptives: contraceptive pills, intrauterine devices (IUDS), Depo-Provera shots, Norplant inserts, and diaphragms.(8) Accordingly, women pay a reported sixty-eight percent more in "out-of-pocket" medical expenses than men.(9)

   In an effort to rectify prescriptive inequity, many state legislatures have responded by introducing state legislation requiring private health plans to include contraceptive pills and devices,(10) Since January 1998, twenty states presented various bills to their state assemblies designed to increase insurance coverage of contraceptives for women.(11) As evidence of strong public support for insurance prescription regulation, six states including Hawaii, Montana, New Mexico, Texas, Virginia and West Virginia have passed either laws or regulations concerning insurance coverage of contraceptives, although none require complete contraceptive coverage.(12) This past April 1998, Maryland passed into law, the strongest contraceptive coverage state legislation yet, requiring insurers to cover contraceptive benefits.(13) However, other states hesitate to follow Maryland's lead. For example, California's Women's Contraceptive Equity Act was vetoed for the third time by former Governor Pete Wilson after passing both the California Assembly and Senate.(14)

   Federal legislation regarding insurance for birth control has also been proposed to the U.S. Congress in the form of the "Snowe-Reid" bill, also known as the Equity in Prescription Insurance and Contraceptive Coverage Act (hereinafter "EPICC").(15) As proposed, EPICC would "prohibit insurers that offer prescription drug benefits coverage from excluding contraceptive drugs and devices approved by the Food and Drug [Ad]ministration (FDA) or restricting the coverage for these drugs in ways other drug Ad coverage is not restricted."(16) Since there is no uniformity between contraceptive coverage state legislation, millions of women will likely fall through the cracks and loopholes created by state laws.(17) Any chance for a uniform, all encompassing law mandating prescriptive coverage of contraceptives must come from the U.S. Congress.(18)

   This Article begins with an examination of the prescription drug, Viagra and the medical condition it is intended to aid. Additionally, this Article evaluates the five most common, and FDA approved forms of contraceptives: contraceptive pills, intrauterine devices (IUD'S), Depo-Provera shots, Norplant inserts and diaphragms. A basic understanding of the above prescriptions is necessary to determine if health care inequity exists between men and women in the area of prescriptive coverage, or if there is such a difference between the medical conditions involved that insurance companies are justified in excluding contraceptive coverage while including Viagra coverage.

   Part III of this Article analyzes whether health care inequity truly exists by comparing the intended use of Viagra with the intended use of contraceptives. Next, this Article will compare and contrast the medical necessity of Viagra with the medical necessity of contraceptives. Additionally, this Article provides a basic cost-benefit analysis in the event that insurance companies were required to provide prescriptive coverage of all five FDA approved methods of birth control. In addition to the most obvious arguments regarding equity in prescription coverage, this Article addresses the public policy arguments supporting legislative action mandating contraceptive coverage by insurance carriers. Finally, this Article reviews recent state legislation regarding contraceptive coverage and identifies the reasons why federal legislation is necessary to rectify inequity in health care coverage between men and women.

2. BACKGROUND

   1. A Brief Summary of Male Impotence and (sildenafil citrate)

      Male impotence, otherwise known as erectile dysfunction, is a common problem identifiable by a man's inability to achieve or maintain an erection.(19) With regard to a man's sexuality, doctors note that "decreased erectile function is not only the most common but also the most distressing and threatening [sexual dysfunction]. It can destroy a man's ego and threaten happy relationships."(20) Normally, males achieve erections when they are sexually excited and the arteries in the penis widen to increase blood flow to the area.(21) As the veins become compressed, they restrict how much blood flows out of the penis causing it to enlarge and result in an erection.(22) If for some reason, blood flow is restricted to the penis, in most cases, a male will be unable to achieve an erection.(23)

      There are many causes of impotence including: 1) insufficient arterial blood flow; 2) venous leakage; 3) impaired nerve supply; 4) drug-induced impotence; 5) prostate problems; 6) hormonal impotence; and 7) psychogenic causes.(24) A variety of factors, including lifestyle habits, trigger the above conditions.(25) Some factors such as stress, anxiety, alcohol consumption, and ingestion of certain narcotics, which may contribute to a man's erectile dysfunction, are easily overcome.(26) Other factors such as diabetes, hormonal imbalances, and benign prostate enlargement create a more complex condition for physicians to treat.(27)

      Prior to the advent of oral prescriptions, male impotence was often treated with invasive surgical procedures and alternative therapies, including self-administered penile injections and urethral suppositories.(28) However, now there is an alternative to such painful and uncomfortable procedures. On March 27, 1998, the FDA approved the first oral pill designed to sexually enhance men with impotence problems.(29) This pill, marketed by Pfizer Inc. as `Viagra', swept the nation and sent Pfizer Inc.'s stock soaring within days of the FDA's publicly announced approval.(30)

      Viagra, referred to as "sildenafil citrate" by the medical profession, "helps a man with erectile dysfunction get an erection only when he is sexually excited."(31) One of the most exciting characteristics of Viagra is that it is effective against a wide variety of ailments causing impotence.(32) FDA reports indicate that Viagra alleviates the symptoms of erectile dysfunction for men suffering from different ailments including diabetes, spinal cord injury, prostate surgery, and other unorganic causes.(33) As such, Viagra provides welcome temporary relief to many men suffering from impotence.

      Technically speaking, Viagra reacts by enhancing the smooth muscle relaxant effects of nitric oxide.(34) Normally, males naturally release the chemical nitric oxide in response to sexual stimulation.(35) This chemical reacts to channel increased blood flow to the penis.(36) Since impotent men suffer from a lack of blood flow preventing them from achieving an erection, Viagra's enhancement of the smooth muscle relaxation allows increased blood flow to certain areas of the penis, which permits an impotent man when sexually aroused to get an erection.(37)

      While Viagra does not "cure" the medical condition causing erectile dysfunction, it temporarily and effectively alleviates one of the more serious symptoms of male impotence, that being the man's inability to achieve an erection.(38) If ingested approximately one hour before sexual intercourse, Viagra will help stimulate the male's penis and enable him to maintain an erection.(39) However, a man will not get an erection by simply ingesting the drug, sexual arousal is also necessary.(40) The primary effect of the drug wears off approximately four hours after swallowed, although individual results may vary.(41) For men who choose Viagra to enhance their sexuality, a single dosage is required for each separate encounter.(42)

      Since its introduction to the public earlier this year, Viagra has been prescribed to nearly 300,000 men.(43) Viagra, which is available by prescription only, costs approximately ten dollars per pill for the consumer.(44) Even though Viagra is brand new to the pharmaceutical market, many insurance companies have responded enthusiastically by willingly covering the prescriptions, at least in part.(45) Consumer reports indicate that almost fifty percent of the 300,000 men who take Viagra receive at least partial, if not complete reimbursement for Viagra.(46) While many insurance companies willingly reimburse their members for Viagra, the amount of Viagra they are willing to cover varies.(47) Since Viagra is only a "take it as you need it" drug and not a daily dosage, many carriers limit the amount of Viagra they will...