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Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and Infertility Services and the ADA

Published online by Cambridge University Press:  24 February 2021

D'Andra Millsap
D'Andra Millsap*
Affiliation:
Weber State University, University of Houston Law Center, Honorable Carolyn Dineen King, United States Court of Appeals for the Fifth Circuit; beginning 1997, Baker & Botts, L.L.P., Houston
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Extract

Employer-provided health insurance is the backbone of the American healthcare system. Approximately four of five workers in the United States rely on health insurance provided in the workplace. Many commentators view access to health insurance as the doorway to the entire health care system. Thus, the benefits covered in employer-provided health insurance plans significantly impact millions of Americans.

While private health insurance usually covers abortion, it traditionally has not covered infertility services. Eventually, courts began interpreting insurance contracts to include infertility treatments, leading insurers to specifically exclude infertility treatments from coverage. In response, a few states have passed mandated benefit laws requiring coverage of some or all infertility services. Nonetheless, current insurance coverage of infertility services is “erratic” at best. These exclusions are significant because abortion and infertility services can be quite expensive for the millions of infertile couples seeking some sort of infertility treatment and the millions of women who have abortions each year.

Type
Articles
Information
American Journal of Law & Medicine , Volume 22 , Issue 1 , 1996 , pp. 51 - 84
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1996

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References

1 See Alan Guttmacher Institute, Uneven & Unequal: Insurance Coverage and Reproductive Health Services 4 (1994, date not given in document)Google Scholar [hereinafter Uneven & Unequal] (noting that “67% of women of reproductive age rely on private, employment-related coverage, obtained through either their own employer or a family member’s employer”); Bobinski, Mary Anne, Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured, 24 U.C. Davis L. Rev. 255, 260 (1990)Google Scholar (indicating that up to 81% of insured individuals are covered through employer-sponsored health insurance); Eisenstat, Steven, Capping Health Insurance Benefits for AIDS: An Analysis of Disability-Based Distinctions Under the Americans with Disabilities Act, 10 J.L. & Pol. 1, 2 (1993)Google ScholarPubMed (“[T]hree out of four American workers . . . rely upon health insurance provided through the workplace.”).

2 See, e.g., Uneven & Unequal, supra note 1, at 4 (“In general, most women in the United States rely on some form of health insurance to help them defray some of their medical expenses.”); Bobinski, supra note 1, at 260 (“Those without health insurance are often denied access to health care.”).

3 See Uneven & Unequal, supra note 1, at 18-19; see also discussion infra part II.

4 See Cole, William C., Comment, Infertility: A Survey of the Law and Analysis of the Need for Legislation Mandating Insurance Coverage, 27 San Diego L. Rev. 715, 718 (1990)Google Scholar; O'Rourke, Melissa R., Comment, The Status of Infertility Treatments and Insurance Coverage: Some Hopes and Frustrations, 37 S.D. L. Rev. 343, 357 (1992)Google Scholar; see also infra notes 49-70 and accompanying text.

5 See Cole, supra note 4, at 718; O'Rourke, supra note 4, at 357; see also infra notes 71-74 and accompanying text.

6 See infra note 75.

7 Cole, supra note 4, at 715; accord Office of Technology Assessment, Infertility: Medical and Social Choices 10 (1988)Google Scholar [hereinafter OTA Report].

8 See Forrest, Jacqueline Darroch et al., Alan Guttmacher Institute, The Need, Availability and Financing of Reproductive Health Services 101 (1989)Google Scholar (noting abortions range in cost from $75 to $1600); OTA Report, supra note 7, at 20 (estimating that “infertile individuals need to be able to pay anywhere from several hundred dollars to more than $22,000" for infertility services). For more details on this issue, see infra notes 15-16, 39-42 and accompanying text.

9 See OTA Report, supra note 7, at 1-2. For more discussion of the definition of infertility and the various types of infertility treatments, see infra notes 34, 40-46 and accompanying text.

10 See infra notes 14-15 and accompanying text.

11 42 U.S.C. §§ 12101-12213 (1994). See infra part III.A for a discussion of the background and scope of the ADA.

12 42 U.S.C. § 12112(a).

13 See Equal Employment Opportunity Comm'n, Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer Provided Health Insurance, EEOC Notice N-915.002, June 8, 1993, at 2 [hereinafter Interim Guidance].

14 See Forrest et al., supra note 8, at 1 (1.6 million); Law, Sylvia A., Silent No More: Physicians’ Legal and Ethical Obligations to Patients Seeking Abortions, 21 N.Y.U. Rev. L. & Soc. Change 279, 282 (1995)Google Scholar (1.6 million); Sunstein, Cass R., Rights and Their Critics, 70 Notre Dame L. Rev. 727, 752 (1995)Google Scholar (1.5 million).

15 See Forrest et al., supra note 8, at 87 (“Based on current levels of abortion, an estimated 46 percent of women beginning their reproductive lives today will have had at least one abortion by the age of 45 . . . .”); Radford, Barbara & Shaw, Gina, Beyond Roe and Abstract Rights: American Public Health and the Imperative for Abortion as a Part of Mainstream Medical Care, 13 St. Louis U. Pub. L. Rev. 207, 211 (1993)Google ScholarPubMed (“Between forty and forty-six percent of American women will have at least one abortion before the end of their childbearing years.”).

16 See Forrest Et Al., supra note 8, at 101.

17 See Uneven & Unequal, supra note 1, at 3 (“Even in the case of outpatient abortion, which, when performed in the first trimester, costs an average of $300, out-of-pocket costs can prove prohibitive for some women, particularly since unwanted pregnancy is a time-bound emergency.”).

18 410 U.S. 113(1973).

19 See Randall, Susan, Health Care Reform and Abortion, 9 Berkeley Women’s L.J. 58, 65 (1994)Google ScholarPubMed.

20 See id.

21 See Harris v. McRae, 448 U.S. 297 (1980). The Supreme Court has also held that states are not required to fund abortions, whether or not medically necessary. See Maher v. Roc, 432 U.S. 464 (1977).

22 Although no major comprehensive study has attempted to quantify private insurance cover age of abortion services, many commentators have concluded these services are widely covered. See, e.g., Forrest et al., supra note 8, at 101 (“[P]rivate insurance was listed as the expected source of payment for 62 percent of all abortions performed in hospitals in 1985 . . . .”); Radford & Shaw, supra note 15, at 217 (“Although there has been no comprehensive review of American health insurance companies to determine the extent of private insurance coverage for abortion, most inquiries have revealed that at least a substantial number of private insurers offer medical coverage for elective abortions.”); Randall, supra note 19, at 63 (“Although there are no industry wide statistics on the frequency of abortion coverage under health insurance policies, most private insurance provides coverage for elective abortion.”).

23 See Uneven & Unequal, supra note 1, at 18.

24 Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000c(k) (1988). Congress passed the PDA as an amendment to Title VII of the Civil Rights Act of 1964, which prohibits certain types of discrimination in employment. 42 U.S.C. §§ 2000e to 2000e-17 (1994). The PDA provides that in determining whether an employer has discriminated on the basis of sex,

The terms “because of sex" or “on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

42 U.S.C. § 2000e(k).

25 Seven states have passed statutes that limit the availability of private insurance coverage of abortion. The statutes come in two basic varieties. First, Pennsylvania mandates that private insurers covering abortion make a policy available that excludes coverage. See 18 Pa. Cons. Stat. Ann. § 3215(e) (Supp. 1995). Second, Idaho, Kentucky, Missouri, Nebraska, North Dakota, and Rhode Island mandate that private insurers cannot provide policies that cover abortion unless it is by an optional rider at an extra premium. See Idaho Code § 41-2210A (1983); Ky. Rev. Stat. Ann. § 304.5-160 (Michie/Bobbs-Merrill 1988); Mo. Ann. Stat. § 376.805 (Vernon 1991); Neb. Rev. Stat. § 44-1615.01 (1994); N.D. Cent. Code § 14-02.3-03 (1979); R.I. Gen. Laws § 27-18-28 (Supp. 1994). All of the statutes make exceptions for abortions necessary to save the life of the mother. See Idaho Code § 4I-2210A; Ky. Rev. Stat. Ann. § 304.5-160(1); Mo. Ann. Stat. § 376.805(1); Neb. Rev. Stat. § 44-1615.01; N.D. Cent. Code § 14-02.3-03; 18 Pa. Cons. Stat. Ann. § 3215(e); R.I. Gen. Laws § 27-18-28(a). This is mandated by the PDA, which provides that it is sex discrimination for employer-provided insurance to exclude coverage of abortion when the life of the mother is in danger. See 42 U.S.C. § 2000e(k). For the full text of the PDA, see supra note 24. These statutes mean that although most employers seem willing to provide insurance that includes abortion, in seven states, access to abortion services through employer-based health insurance is limited.

26 The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (1994), is a comprehensive federal statute “designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983); see also Pfefferkorn, Michael G., Comment, Federal Preemption of State Mandated Health Insurance Programs Under ERISA—The Hawaii Prepaid Health Care Act in Perspective, 8 St. Louis U. Pub. L. Rev. 339, 340 (1989Google Scholar (describing the abuses in pension plan and employee health plan management that gave rise to ERISA’s enaction). ERISA establishes fiduciary obligations and sets mini mum standards for funding, disclosure, and other aspects of plan administration and operation. See Bobinski, supra note 1, at 275-76; Pfefferkorn, supra, at 341. ERISA does not mandate that employers provide any benefits, but governs the plan once employers choose to offer benefits. See Shaw, 463 U.S. at 91; Palmer, Lizzette, Comment, ERISA Preemption and Its Effects on Capping the Health Benefits of Individuals with AIDS: A Demonstration of Why the United States Health and Insurance Systems Require Substantial Reform, 30 Hous. L. Rev. 1347, 1357 (1993)Google Scholar.

The most significant aspect of ERISA is its preemption provision, which preempts any state law that “relate[s] to any employee benefit plan.” 29 U.S.C. § 1144(a); see Bobinski, supra note 1, at 277 (describing the preemption provisions as “the most significant aspect of ERISA”). The Supreme Court has interpreted this provision very broadly. In Shaw, the Court stated that the “apparent,” "normal sense" meaning of the phrase encompasses anything “that has a connection with or reference to" an employee benefit plan. 463 U.S. at 96-97. The Supreme Court has specifically held that mandated benefit laws relate to an employee benefit plan and thus are within ERISA’s ambit. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985). Although the Supreme Court has recently indicated that ERISA’s relate to clause might not be as broad as previously thought, the Court specifically reaffirmed Metropolitan Life’s holding that mandated benefit laws relate to employee benefit plans under ERISA. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671, 1677, 1680-81 (1995).

That mandated benefit statutes relate to an employee benefit plan is not the end of the inquiry. ERISA saves from preemption “any law of any State which regulates insurance, banking or securities.” 29 U.S.C. § 1144(b)(2)(A). While ERISA’s intent is to carve out an area of exclusive federal concern regarding employee benefit plans, the saving clause expresses congressional intent to preserve areas of state expertise, such as insurance. See Metropolitan Life, 471 U.S. at 744 n.21; Lawrence A. Vranka, Jr., Note, Defining the Contours of ERISA Preemption of State Insurance Regulation: Making Employee Benefit Plan Regulation an Exclusively Federal Concern, 42 Vand. L. Rev. 607, 608-09 (1989)Google Scholar. In Metropolitan Life, the Supreme Court determined that a Massachusetts mandated benefit law was saved from preemption by the insurance saving clause. See 471 U.S. at 746; see also Bobinski, supra note 1, at 288-90 (concluding that under this framework, state-mandated benefit laws are exempted from preemption under the insurance saving clause). The Court recently unanimously reaffirmed this conclusion. See Travelers, 115 S. Ct. at 1680-81. Thus, it would seem that statutes restricting or limiting abortion benefits are not preempted.

This is only partially true. ERISA’s deemer clause indicates that “an employee benefit plan . . . shall [not] be deemed to be an insurance company or other insurer, ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies, [or] insurance contracts.” 29 U.S.C. § 1144(b)(2)(B). This clause has been interpreted to mean that laws that relate to employee benefit plans that would normally be saved from preemption under the insurance saving clause are preempted as applied to self-insured plans. Bobinski, supra note 1, at 290-91. Thus, mandated benefit laws are preempted insofar as they apply to self-insured plans. See id. This is particularly significant, given the trend toward self-insuring. See id. at 296 & n.134 (noting that in 1985, 42% of medium and large employers self-insured, up from 22% in 1981). A 1991 survey showed that 55% of the surveyed medium-sized firms self-insured and another 20% expect to move to self-insurance in the near future. Survey Shows Self-Insurance Trend Among Medium-Sized Employers Polled, 18 Pens. & Ben. Rep. (BNA) No. 8, at 335 (Feb. 25, 1991)Google Scholar.

27 See Randall, supra note 19, at 63-64.

28 Id. at 68.

29 Id. at 69.

30 See id. at 70.

31 Id. at 69.

32 Id. at 69-70.

33 See Begley, Sharon, The Baby Myth, Newsweek, Sept. 4, 1995, at 38, 40Google Scholar.

34 See OTA Report, supra note 7, at 3. The OTA defines infertility as “the inability of a couple to conceive after 12 months of intercourse without contraception.” Id. The OTA notes several different potential definitions of infertility:

  • the inability of a woman to conceive after 12 months of intercourse without contraception;

  • the inability to conceive a pregnancy after a year or more of regular sexual relations without contraception or the incapacity to carry a pregnancy to a live birth;

  • the inability of a woman to achieve a first pregnancy after engaging in sexual activity without using contraceptive methods for a period of 2 years or longer;

  • the inability of a couple to conceive after 2 years of intercourse without contraception; and

  • the inability of male and female gametes (sperm and ova) to fertilize and appropriately implant.

Id. at 35. The OTA chose the first because it is the standard medical definition. Id. For definitions of infertility that legislatures use in making infertility mandated benefit statutes, see infra notes 100-01 and accompanying text.

35 See Bonnicksen, Andrea L., In Vitro Fertilization: Building Policy From Laboratories to Legislatures 103 (1989)CrossRefGoogle Scholar.

36 Cole, supra note 4, at 715.

37 OTA Report, supra note 7, at 51, 55-56; O'Rourke, supra note 4, at 345.

38 O'Rourke, supra note 4, at 345.

39 See Cole, supra note 4, at 715; Begley, supra note 33, at 40.

40 For a thorough explanation of the various types of infertility treatments, see generally OTA Report, supra note 7.

41 Uneven & Unequal, supra note 1, at 3.

42 See Cole, supra note 4, at 717.

43 Begley, supra note 33, at 40. Other sources indicated that $22,000 for high-tech treatments is the “extreme" case. OTA Report, supra note 7, at 10.

44 See Begley, supra note 33, at 40 (noting that the number of in vitro fertilization (IVF) procedures has increased from 3921 in 1985 to 31,900 in 1993).

45 See OTA Report, supra note 7, at 7; Begley, supra note 33, at 40. For example, men often receive advice to wear looser shorts because high scrotum temperature inhibits sperm formation. Id.

46 See OTA Report, supra note 7, at 7 (discussing complex and emotionally taxing surgical procedures); see also Begley, supra note 33, at 40 (estimating that 40,000 of three million couples seeking infertility treatment last year tried one or more high-tech methods).

47 Cole, supra note 4, at 717.

48 See Uneven & Unequal, supra note 1, at 11.

49 420 N.W.2d 785 (Iowa 1988).

50 Id. at 786. The court noted that in health insurance policies, the terms “illness,” "sickness,” and “disease" are synonymous. Id. at 788. For convenience, this Article will use illness to refer to all three words.

51 Id. at 788-89. The court also pointed out that the plan in question covered other reproductive services such as pregnancy and abortion. Id. at 790.

52 See, e.g., Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1037 (7th Cir. 1990) (finding that infertility is an illness, partly because of internal guidelines referring to infertility as an illness); Ralston v. Connecticut Gen. Life Ins. Co., 617 So. 2d 1379, 1381-82 (La. Ct. App.) (“Mrs. Ralston’s ‘sickness’ is that her reproductive organs, viewed in the totality of their function, are not serving their intended purpose because of a malfunction . . ..”), vacated, 625 So. 2d 156 (La. 1993).

53 O'Rourke contends:

It is interesting to note the wide range of conditions that have been held to be diseases, including but not limited to chemical dependency, a congenital defect of a child’s soft palate, alcoholism, hernias, headaches, senility, exogenous obesity, and insanity caused by syphilis. It is enigmatic that infertility would not be included in the list, given this wide range of conditions that are considered diseases by various courts.

O'Rourke, supra note 4, at 376-77 (footnotes omitted).

54 See Cole, supra note 4, at 733 n.149.

55 617 So. 2d 1379 (La. Ct. App.), vacated, 625 So. 2d 156 (La. 1993).

56 Id. at 1380.

57 Id. at 1381.

58 Id.

59 Id.

60 Id. at 1382.

61 Id.

62 See, e.g., Regnier v. Industrial Comm'n, 707 P.2d 333, 336 (Ariz. Ct. App. 1985); Tobias v. Workmen’s Compensation Appeal Bd., 595 A.2d 781, 786 (Pa. Commw. Ct. 1991) (concluding that an artificial insemination technique was medically necessary because it was “merely the method for replacing a lost body function, in some respects it is even analogous to a customized prosthesis”); see also Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1038 (7th Cir. 1990) (rejecting insurer’s argument that IVF was not medically necessary, in part because the insurer covered other, less expensive types of infertility treatments). But see Kinzie v. Physician’s Liab. Ins. Co., 750 P.2d 1140, 1141 (Okla. Ct. App. 1987) (finding as matter of law that IVF was not medically necessary because “it was elective and was not required to cure or preserve Mrs. Kinzie’s health . . . [and it is] not medically necessary to a woman’s health to give birth to a child”).

63 O'Rourke, supra note 4, at 380.

64 846 F.2d 416 (7th Cir. 1988).

65 See id. at 417-18.

66 See id. at 418.

67 See id. at 424.

68 See Begley, supra note 33, at 41.

69 O'Rourke, supra note 4, at 380.

70 Id.

71 See Cole, supra note 4, at 723; O'Rourke, supra note 4, at 357.

72 Cox, Gail D., Insurers Being Forced to Pay for Fertility Right, Nat'l L.J., Apr. 11, 1988, at 14, 14Google Scholar.

73 Id.

74 See supra notes 47-48 and accompanying text.

75 While the statutes concerning abortion tend to reduce insurance coverage, the nine states with mandated benefit statutes related to infertility services provide more insurance coverage options. These statutes come in three basic forms. First, California and Connecticut require that every insurer offer coverage of infertility services. See Cal. Ins. Code § 10119.6 (West 1993); Conn. Gen. Stat. Ann. § 38a-536 (West 1992). Second, Arkansas mandates that insurers must cover expenses for IVF. See Ark. Code Ann. § 23-86-118 (Michie 1992). Third, Hawaii, Illinois, Mary land, Massachusetts, Rhode Island, and Texas all mandate that if insurers provide pregnancy-related benefits, they must cover infertility treatments to the same extent they cover pregnancy-related conditions. See Haw. Rev. Stat. § 431:10A-116.5 (1994); Ill. Ann. Stat. ch. 215, para. 5/356m (Smith-Hurd 1993); Md. Code Ann., Ins. § 470W (1994); Mass. Gen. Laws Ann. ch. 175, § 47H (West Supp. 1995); R.I. Gen. Laws § 27-18-30 (1989); Tex. Ins. Code Ann. art. 3.51-6, § 3A (West Supp. 1996). The statutes vary widely in several other respects, including the specific procedures covered, the definition of infertility, exemptions for religious organizations, restrictions on reimbursement for nonmarried couples, and the type of other, less expensive treatments available.

76 Just as mandated benefit laws relating to abortion will likely be preempted to the extent that they apply to self-insured plans, the same arguments apply to infertility treatment mandated benefit statutes. See supra note 26.

77 OTA Report, supra note 7, at 161.

78 Id. at 10.

79 See id. (“Broader insurance coverage would likely lead to more patients attempting IVF and to more IVF attempts per patient, with consequent greater individual access.”).

80 42 U.S.C. § 12101(a)(8); see also D'Amico v. New York State Bd. of Law Examiners, 813 F. Supp. 217, 221 (W.D.N.Y. 1993) (noting that the ADA’s purpose is to ensure that individuals with disabilities are not disadvantaged); Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D. Pa. 1993) (explaining that because the ADA is a remedial statute “designed to eliminate discrimination against the disabled in all facets of society,” it must be construed broadly).

81 Prior to the ADA, the primary source of federal protection for individuals with disabilities was the Rehabilitation Act of 1973. 29 U.S.C. §§ 701-794 (1994). The ADA is much broader than the Rehabilitation Act, which covers only certain employees doing work involving the federal government. Id. §§791-794.

82 Much of the substance of the ADA is borrowed from the language and interpretations of the Rehabilitation Act. See Colette G. Matzzie, Note, Substantive Equality and Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 Geo. L.J. 193, 213-16 (1993)Google Scholar (tracing five doctrinal concepts that emerged under the Rehabilitation Act which the ADA codified). See generally Henry, Kathleen D., Comment, Civil Rights and the Disabled: A Comparison of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in the Employment Setting, 54 Alb. L. Rev. 123 (1989)Google Scholar (analyzing the differences between the Rehabilitation Act and the ADA).

83 Congress specifically intended that the ADA be interpreted in a manner that “avoids duplication of effort and prevents imposition of inconsistent or conflicting standards for the same requirements under . . . [the employment subchapter of the ADA] and the Rehabilitation Act.” 42 U.S.C. § 12117(b); see also Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. pt. 1630 app. at 410 (1993) [hereinafter ADA Regulations] (concluding that “[t]he range of employment decisions covered by . . . [the ADA] is to be construed in a manner consistent with the regulations implementing section 504 of the Rehabilitation Act”). Therefore, for ease of reference, this Article refers to the Rehabilitation Act and ADA law as though they are both part of the ADA.

84 42 U.S.C. § 12102(2)(A). The ADA further defines disability as “a record of such an impairment" or “being regarded as having such an impairment.” Id. § 12102(2)(B), (C). The purpose of this expanded notion of disability is to “ensure that handicapped individuals arc not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others.” School Bd. v. Arline, 480 U.S. 273, 282-83 (1987).

85 42 U.S.C. § 12112(a). The ADA lists the specific examples of “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, [and] job training.” Id.

86 See id. § 12112(b) (listing various constructions of the term “discriminate”).

87 See id. § 12112(b)(5)(A). What constitutes a reasonable accommodation will usually be a question of fact. Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994); Vande Zande v. Wisconsin Dep't of Admin., 851 F. Supp. 353, 355 (W.D. Wis. 1994). An employee with a disability is not entitled to all accommodations or the best accommodations, but only to reasonable accommodations. Id. at 359-60.

88 42 U.S.C. § 12112(b)(5)(A); Dutton v. Johnson County Bd. of County Comm'rs, 859 F. Supp. 498, 505 (D. Kan. 1994). The ADA defines undue hardship as “requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A).

89 See 42 U.S.C. § 12112(a); ADA Regulations, 29 C.F.R. § 1630.2(o)(i). The ADA Regulations define “qualified individual with a disability" as someone with a disability “who satisfies the requisite skill, experience, education and other job-related requirements of the employment position . . . , and who, with or without reasonable accommodation, can perform the essential functions of such position.” Id. § 1630.2(m). The Supreme Court has stated that a person cannot be covered under the Rehabilitation Act unless that person is both disabled and qualified. See School Bd. v. Arlinc, 480 U.S. 273, 285 (1987).

The ADA clearly requires that employees be able to perform the essential functions of the job, with or without reasonable accommodation. ADA Regulations, 29 C.F.R. pt. 1630 app. at 406; see also 42 U.S.C. § 12111(9)(B) (listing examples of “reasonable accommodation”); ADA Regulations, 29 C.F.R. § 1630.2(o)(ii) (defining “reasonable accommodation”). The ADA Regulations define “essential functions" as “the fundamental job duties of the employment position,” which do not include “the marginal functions of the position.” ADA Regulations, 29 C.F.R. § 1630.2(n)(1).

90 42 U.S.C. § 12112(a).

91 ADA Regulations, 29 C.F.R. § 1630.4(f).

92 See, e.g., U.K. Rep. No. 485(II), 101st Cong., 2d Sess. 8 (1990) [hereinafter House Report] (listing denial of benefits as an area of concern in discrimination against people with disabilities); id. at 61 (noting that “fringe benefits available by virtue of employment" are included under “the range of employment decisions" protected under the ADA). The ADA itself, in its findings sections, lists benefits as an area in which “individuals with disabilities continually encounter various forms of discrimination.” 42 U.S.C. § 12101(a)(5); see Carparts Distribution Ctr., Inc. v. Automotive Whole saler’s Ass'n, 37 F.3d 12, 16 (1st Cir. 1994) (finding under the ADA that a covered entity cannot discriminate on the basis of a disability in regard to fringe benefits).

93 42 U.S.C. § 12201(c).

94 See, e.g., House Report, supra note 92, at 136 (noting the committee’s intent that the ADA not “affect the way the insurance industry does business”); 136 Cong. Rec. S9697 (July 13, 1990) (statement of Sen. Kennedy) [hereinafter Senate Debate] (stating that the ADA “does not take on the difficult job of trying to make comprehensive health insurance available to all individuals with disabilities”); 136 Cong. Rec. H4624 (July 12, 1990) (statement of Rep. Edwards) [hereinafter House Debate] (noting that the ADA does not “alter[] the basic manner in which health insurance companies do business in this country”).

95 Interim Guidance, supra note 13.

96 Id at 2.

97 42 U.S.C. § 12112(a) (emphasis added).

98 See Interim Guidance, supra note 13, at 2.

99 See 42 U.S.C. § 12112(b)(2). This section specifically includes contracts with “an organization providing fringe benefits to an employee of the covered entity.” Id.

100 See Interim Guidance, supra note 13, at 2-3.

101 See id. at 3-4.

102 Id. at 4 (quoting 42 U.S.C. § 12201(c)).

103 Id. at 5.

104 See infra note 189.

105 See Giliberti, Mary T., The Application of the ADA to Distinctions Based on Mental Dis ability in Employer-Provided Health and Long-Term Disability Insurance Plans, 18 Mental & Physical Disability L. Rep. 600, 601 (1994)Google Scholar.

106 See id.

107 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citations omitted); see also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir. 1995) (citing Vinson and relying on various EEOC interpretive guidelines in holding that an employer does not violate the ADA by requiring a reapplying former employee with a known disability to provide medical certification as to the ability to perform essential job functions). In fact, Justice Ginsburg, when she was a Circuit Judge, noted that guidelines that are not promulgated may have persuasive authority. See Used Equip. Sales, Inc. v. Department of Transp., 54 F.3d 862, 867 (D.C. Cir. 1995) (analyzing the Federal Highway Administration’s interpretation of the Motor Carrier Safety Act).

108 See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); see also Sims v. United States Dep't of Agric. Food & Nutrition Serv., 860 F.2d 858, 861 (8th Cir. 1988) (stating that unless there is a reason not to, courts should defer to agency interpretations); Giliberti, supra note 105, at 601 (noting that while the guidance has not been adopted as a regulation, “courts may give it some weight as the opinion of the enforcing agency”). The EEOC’s Interim Guidance would appear to deserve deference under Chevron because the ADA is ambiguous as to its treatment of disability-based distinctions in health insurance. See supra notes 90-94 and accompanying text.

109 492 U.S. 158 (1989).

110 Id. at 175. For more detail on the Betts decision and the EEOC regulations at issue, see infra part IV.B.

111 29 U.S.C. §§621-634(1994).

112 See Eisenstat, supra note 1, at 20. The ADEA has another subterfuge provision that remained untouched by the 1990 amendments and has been interpreted to fall under the Betts standard. See Knight v. Georgia, 992 F.2d 1541, 1545-46 (11th Cir. 1993).

113 42 U.S.C. § 12201(c).

114 See Eisenstat, supra note 1, at 21; see also infra part IV.C.l.

115 Interim Guidance, supra note 13, at 9 n.10.

116 29 U.S.C. § 621(b).

117 Id. § 623(f)(2) (amended 1990).

118 434 U.S. 192(1977).

119 Id. at 203.

120 See id. at 194, 203.

121 See Eisenstat, supra note 1, at 13.

122 See Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 163-64 (1989).

123 See id. at 163.

124 See id.

125 29 C.F.R. § 1625.10(d).

126 See Belts, 492 U.S. at 164.

127 See id. at 175.

128 See id. at 168.

129 See id.

130 See id. at 169.

131 See id. at 170-71.

132 Id. (quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 203 (1977)).

133 See id.

134 Id. at 171-72.

135 Id. at 172.

136 See id. at 175-76.

137 See 29 U.S.C. § 623(a)(1); United Air Lines, Inc. v. McMann, 434 U.S. 192, 195 (1977).

138 Betts, 492 U.S. at 175 (quoting 29 U.S.C. § 623(0(2)) (emphasis added).

139 Id. at 176 (quoting 29 U.S.C. § 621(b)).

140 Id.

141 Id.

142 Id. at 177.

143 Id.

144 Id.

145 Id. at 181.

146 Eisenstat, supra note 1, at 19.

147 Betts, 492 U.S. at 181.

148 Id.

149 See id. at 182.

150 See 29 U.S.C. §623(f)(2).

151 42 U.S.C. § 12201(c).

152 Interim Guidance, supra note 13, at 8.

153 See Betts, 492 U.S. at 175-76.

154 Interim Guidance, supra note 13, at 11.

155 Betts, 492 U.S. at 171-72.

156 See Interim Guidance, supra note 13, at 2.

157 Betts, 492 U.S. at 177.

158 Interim Guidance, supra note 13, at 9.

159 See Betts, 492 U.S. at 181.

160 See supra notes 134-35 and accompanying text.

161 See Blum v. Stenson, 465 U.S. 886, 896 (1984).

162 See supra notes 90-94 and accompanying text; see also infra part IV.C.2.C.

163 Betts considered legislative history in analyzing the safe harbor rule and in deciding the fringe/nonfringe benefit issue after acknowledging that “this construction of the words of the statute is not the only plausible one.” Betts, 492 U.S. at 168, 177-80.

164 Even though the ADEA is also silent on the burden of proof issue, Betts did not look to legislative history because its conclusion flowed logically from its conclusion on the other three issues. See id. at 181.

165 See id. at 172.

166 Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, 474 U.S. 494, 501 (1986); see also Estate of Wood v. C.I.R., 909 F.2d 1155, 1160 (8th Cir. 1990) (stating that Congress must clearly demonstrate a contrary intent to displace existing judicial interpretations).

167 United States v. Taylor, 882 F.2d 1018, 1027 (6th Cir. 1989) (emphasis added), cert. denied, 496 U.S. 907 (1990); see also Estate of Wood, 909 F.2d at 1160 (concluding that the court “must find some statutory or legislative indication that Congress so intended" to replace an existing judicial interpretation).

168 See infra notes 171-76, 182-86 and accompanying text.

169 See Betts, 492 U.S. at 171-72.

170 See Senate Debate, supra note 94, at S9697 (statement of Sen. Kennedy) (“The term ‘subterfuge’ is used in the ADA to denote a means of evading the purposes of the ADA. Under its plain meaning, it does not connote there must be some malicious or purposeful intent to evade the ADA . . . .”); House Debate, supra note 94, at H4623 (statement of Rep. Owens) (“[Subterfuge] does not mean that there must be some malicious or purposeful intent to evade the ADA . . . .”); id. at H4624 (statement of Rep. Edwards) (“[Subterfuge] does not mean that there must be some malicious intent to evade the ADA . . . .”); id, at H4626 (statement of Rep. Waxman) (“[T]here is no requirement of an intent standard under the ADA.”).

171 See 42 U.S.C. § 12112(b)(5)(A); see also supra note 88 and accompanying text.

172 The ADA defines undue hardship as “requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A).

173 See McFadden, Monica E., Insurance Benefits Under the ADA: Discrimination or Business as Usual?, 28 Tort & Ins. L.J. 480, 494 (1993)Google Scholar.

174 See House Report, supra note 92, at 136 (stating that the ADA prohibits denying insurance or imposing different conditions based on disability alone “if the disability does not pose in creased risks”); id. at 138 (noting that the subterfuge provision was not intended to prevent disability-based classifications that “represent an increased hazard of death or illness”).

175 See id. at 137; accord House Debate, supra note 94, at H4623 (statement of Rep. Owens) (“[T]he ADA should not be construed so as to undermine the provision of insurance plans that are based on sound actuarial risks.”).

176 See House Report, supra note 92, at 136 (“The Committee does not intend that any provisions of this legislation should affect the way the insurance industry does [its] business . . . .”); House Debate, supra note 94, at H4624 (statement of Rep. Edwards) (“The ADA does not take on the difficult job of altering the basic manner in which health insurance companies do business in this country.”).

177 See supra notes 107-08 and accompanying text.

178 Eisenstat, supra note 1, at 27-28 (footnotes omitted).

179 See House Report, supra note 92, at 136 (stating that disability-based distinctions cannot be used to evade the purposes of the ADA, “regardless of the date an insurance plan or employer benefit plan was adopted”); Senate Debate, supra note 94, at S9697 (statement of Sen. Kennedy) (“[T]he term ‘subterfuge,’ as used in the ADA, should not be interpreted in the manner in which the Supreme Court interpreted the term in [Betts] .... [A] plan is [not] automatically shielded just because it was put into place before the ADA was passed.”); House Debate, supra note 94, at H4623 (statement of Rep. Owens) (stressing that Betts should not be applied to the ADA and that a plan is not safeguarded just because it was in place before the ADA); id. at H4624 (statement of Rep. Edwards) (same); id. at H4626 (statement of Rep. Waxman) (rejecting Betts and stating that the ADA has no “blanket exception for insurance plans that were adopted prior to the enactment of the ADA”).

180 See Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 164 (1989).

181 Id. at 177.

182 42 U.S.C. § 12101(a)(5).

183 See, e.g., HOUSE Report, supra note 92, at 29 (listing denial of benefits as an area of concern in discrimination against people with disabilities); id. at 33 (expressing concern over disability discrimination with respect to insurance costs).

184 Id. at 54-55.

185 See Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass'n, 37 F.3d 12, 16 (1st Cir. 1994) (finding under the ADA that a covered entity cannot discriminate on the basis of a dis ability in regard to fringe benefits).

186 See Senate Debate, supra note 94, at S9697 (statement of Sen. Kennedy) (explaining that the ADA prohibits refusing to hire someone because of fear of insurance cost and also prohibits employers from completely denying health insurance to someone because of a person’s disability); House Debate, supra note 94, at H4624 (statement of Rep. Edwards) (same); id. at H4626 (statement of Rep. Waxman) (same).

187 Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 176 (1989).

188 See id. at 177.

189 However, some courts have overlooked this point and have focused on the fringe versus nonfringe benefits holding of Betts in striking down the Interim Guidance. See infra part IV.C.3.

190 See Belts, 492 U.S. at 181.

191 See 42 U.S.C. § 12112(b)(5)(A); see also supra note 88 and accompanying text.

192 42 U.S.C. § 12112(b)(5)(A).

193 Interim Guidance, supra note 13, at 9 (citing Morgado v. Birmingham-Jefferson County Civil Defense Corps., 706 F.2d 1184, 1189 (11th Cir. 1983), cert. denied, 464 U.S. 1045 (1984); EEOC v. Whitin Mach. Works, Inc., 635 F.2d 1095, 1097 (4th Cir. 1980); EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979)).

194 Id. at 9-10.

195 Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995).

196 Id. at 959.

197 See id. at 960.

198 Id.

199 See id. at 961.

200 See No. 4-93-CV-10815, 1995 WL 652430, at *5 (S.D. Iowa Oct. 2, 1995).

201 See id. The court held that reproduction and caring for others were not major life activities. Id. For arguments supporting and rejecting the theory that reproduction is a major life activity under the ADA, sec supra part IV.C.1.a.

202 See Krauel, 1995 WL 652430, at *7.

203 See id.

204 See supra part IV.C.2.c.

205 887 F. Supp. 1106 (CD. Ill. 1995).

206 See id. at 1111, 1120.

207 See id. at 1125.

208 Id. at 1123.

209 See House Report, supra note 92, at 138 (stating that the insurance/subterfuge provision is necessary because without it, the ADA “could arguably find violative of its provisions any action taken by an insurer or employer which treats disabled persons differently under an insurance or benefit plan because they represent an increased hazard of death or illness”); Senate Debate, supra note 94, at S9697 (statement of Sen. Kennedy) (characterizing the subterfuge insurance provision as an exception); House Debate, supra note 94, at H4623 (statement of Rep. Owens) (same); id. at H4626 (statement of Rep. Waxman) (same).

210 See supra note 88 and accompanying text.

211 See Piquard v. City of East Peoria, 887 F. Supp. 1106, 1123-24 (CD. Ill. 1995).

212 See id at 1124.

213 Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 177 (1989).

214 See supra part IV.C.2.c.

215 See supra note 186 and accompanying text.

216 29 U.S.C. § 621(b).

217 42 U.S.C. § 12101(b)(1).

218 See Piquard v. City of East Peoria, 887 F. Supp. 1106, 1124-25 (CD. Ill. 1995).

219 See Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 171-72(1989).

220 See supra note 170 and accompanying text.

221 See supra part IV.C.2.a.

222 See McWright v. Alexander, 982 F.2d 222, 226-27 (7th Cir. 1992) (finding that the plaintiff stated a claim for a Rehabilitation Act violation when employer imposed extra burdens on sterile woman seeking time off to care for newly adopted infant); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1404-05 (N.D. Ill. 1994) (finding that employee, who was sterile and became pregnant through experimental treatment, stated a claim under the ADA by alleging that her employer fired her because of her disability); see also Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1318, 1320 (E.D. Pa. 1994) (concluding that procreation may be a major life activity in an ADA claim by HIV-positive plaintiff who claimed that AIDS interferes with procreation).

223 881 F. Supp. 240 (E.D. La. 1995).

224 Id. at 243. The U.S. District Court for the Southern District of Iowa recently came to this same conclusion. See Krauel v. Iowa Methodist Medical Ctr., No. 4-93-CV-I0815, 1995 WL 652430 (S.D. Iowa Oct. 2, 1995).

225 Zatarain, 881 F. Supp. at 243.

226 See id.

227 ADA Regulations, 29 C.F.R. § 1630.2(i).

228 See id. pt. 1630 app. at 401 (stating that an impairment is “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder" (emphasis added)).

229 See Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1069 (1995) (describing the “rather sensible rule[] of statutory construction" that “the Court will avoid a reading which renders some words altogether redundant" in a case interpreting the meaning of a “prospectus" under § 12 of the 1933 Securities Act).

230 The ADA does, however, specifically exclude many other conditions from coverage as disabilities. These include homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C. § 1221 l(a)-(b).

231 See ADA Regulations, 29 C.F.R. pt. 1630 app. at 401 (stating that “[o]ther conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments”); Equal Employment Opportunity Comm'n, 2 EEOC Compliance Manual § 902, 902-9 (1995) [hereinafter EEOC Compliance Manual § 902] (noting that pregnancy is not a disability, but that complications arising from pregnancy can be impairments, which may or may not be disabilities).

232 See General Elec. Co. v. Gilbert, 429 U.S. 125, 140-45 (1976) (refusing to defer to EEOC guidelines, which determined that pregnancy discrimination violated Title VII, because the guide lines were not supported by legislative intent or the “plain meaning" of Title VII); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95 (1973) (disregarding the EEOC’s conclusion that discrimination on the basis of citizenship is discrimination on the basis of national origin because that interpretation is “inconsistent with an obvious congressional intent”).

233 See Matzzie, supra note 82, at 218-21.

234 See supra note 57 and accompanying text (discussing the definition ofdisability).

235 For a list of the conditions specifically excluded by the ADA, see supra note 230.

236 See Matzzie, supra note 82, at 220.

237 Id at 223-24.

238 See id. at 220.

239 See Paegle v. Department of the Interior, 813 F. Supp. 61, 64 (D.D.C. 1993) (“It is well established that the [Rehabilitation] Act was never intended to extend to persons suffering from temporary conditions or injuries.”); Oswalt v. Sara Lee Corp., 889 F. Supp. 253, 257 (N.D. Miss. 1995) (“[T]he ADA was never intended to extend to persons suffering from temporary conditions.”); see also infra notes 255-63 and accompanying text.

240 42 U.S.C. § 2000e(k). For the full text of the PDA, see supra note 24.

241 Matzzie, supra note 82, at 222.

242 See id.

243 See infra notes 255-63 (discussing the temporary condition rule).

244 858 F. Supp. 1393, 1404-05 (N.D. Ill, 1994) (finding that an employee, who was sterile and became pregnant through experimental treatment, stated a claim under the ADA by alleging that her employer fired her because of her disability).

245 982 F.2d 222, 226-27 (7th Cir. 1992) (finding that the plaintiff stated a claim for a Rehabilitation Act violation when employer imposed extra burdens on a sterile woman seeking time off to care for a newly adopted infant).

246 No. 94-C-7542, 1995 WL 275576 (N.D. III. May 8, 1995).

247 Id. at *1.

248 No. 93-6524, 1995 WL 103299 (N.D. Ill. Mar. 9, 1995).

249 Id. at *3.

250 Id.

251 Id.

252 See McWright v. Alexander, 982 F.2d 222, 226-27 (7th Cir. 1992) (noting that sterility is a disability because it is a physiological disorder affecting the reproductive system); Pacourek v. In land Steel Co., 858 F. Supp. 1393, 1404 (N.D. Ill. 1994) (citing McWright and finding that sterility is a physiological disorder of the reproductive system and therefore a disability under the ADA).

253 See ADA Regulations, 29 C.F.R. pt. 1630(h) app. at 401; EEOC Compliance Manual § 902, supra note 231, at 902-9. The EEOC’s interpretation generally is entitled to great deference if it is consistent with the text and legislative history. See supra note 109 and accompanying text.

254 See Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995) (relying on the EEOC’s ADA Regulations and finding that pregnancy is not a physical impairment “absent unusual circumstances”); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995) (same); Byerly v. Herr Foods, Inc., No. CIV. A. 92-7382, 1993 WL 101196, at *4 (E.D. Pa. Apr. 6, 1993) (unpublished opinion) (deferring to the EEOC’s interpretation that pregnancy is not an impairment under the ADA); see also Brennan v. National Tel. Directory Corp., 850 F. Supp. 331, 344 (E.D. Pa. 1994) (interpreting a state disability law modeled after the ADA and relying on the EEOC’s interpretation that the ADA docs not include pregnancy). Bui see Patterson v. Xerox Corp., 901 F. Supp. 274, 278 (N.D. III. 1995) (refusing to dismiss an ADA claim based on a pregnancy- related condition when pregnancy exacerbated the preexisting problem).

255 The ADA does not define substantial impairment, but the EEOC has defined it in its ADA Regulations as “unable to perform a major life activity" or “significantly restricted as to the condition, manner or duration" that an individual with a disability can perform a major life activity when compared with the average person in the general population. ADA Regulations, 29 C.F.R. § I630.2(j)(1)(i). The EEOC lists several factors to consider when determining substantial impairment:

  • (i) The nature and severity of the impairment;

  • (ii) The duration or expected duration of the impairment; and

  • (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

Id. § 1630.2(j)(2). Under this formulation, “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.” Id. pt. 1630 app. at 403. As examples, the EEOC offers “broken limbs, sprained joints, concussions, appendicitis, and influenza.” Id.

256 See, e.g., Avery v. United States Postal Serv., No. 92-1713, 1994 WL 47789, at *3, 5 (6th Cir. Feb. 15, 1994) (unpublished opinion) (affirming district court’s dismissal of plaintiff’s Rehabilitation Act claim because plaintiff’s wrist, knee, and back injuries were “temporary and transient" and therefore plaintiff had no disability); Spranger v. Frank, No. 92-15812, 1993 WL 484721, at *3 (9th Cir. Nov. 24, 1993) (unpublished opinion) (concluding that plaintiff had no disability because his two-month back sprain was “a minor, temporary injury”); Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (determining that Rehabilitation Act did not cover plaintiffs knee injury, which required surgery, as it was not “an impairment of continuing nature”); Paegle v. Department of Interior, 813 F. Supp. 61, 64-65 (D.D.C. 1993) (noting that “[i]t is well established that the [Rehabilitation] Act was never intended to extend to persons suffering from temporary conditions or injuries" and therefore plaintiffs temporary back injury was not a disability).

257 See EEOC Compliance Manual § 902, supra note 231, at 902-29 (noting that “[t]here are no set time limits for determining whether an impairment is of sufficient duration to be considered substantially limiting" and that each determination must be made case-by-case).

258 See, e.g., McDonald v. Pennsylvania Dep't of Pub. Welfare, 62 F.3d 92, 96 (3d Cir. 1995) (noting that plaintiffs incapacitation of less than two months was temporary and not a disability); Spranger, 1993 WL 484721, at *3 (finding that two-month back sprain was “a minor, temporary injury" and not a disability); Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240, 244 n.5 (E.D. La. 1995) (concluding that the plaintiffs request for accommodations for four months meant her conditions were only temporary); Oswalt v. Sara Lee Corp., 889 F. Supp. 253, 257 (N.D. Miss. 1995) (holding that a condition lasting for one month was “negligible" and temporary and thus not a disability); Blanton v. Winston Printing Co., 868 F. Supp. 804, 807 (M.D.N.C. 1994) (concluding that knee injury that affected plaintiff’s work for only three months was temporary).

259 See, e.g., Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D. Miss. 1995) (concluding that plaintiff’s back injury, which occurred in December and lasted until the next August, was temporary and not a disability).

260 See, e.g., Paegle, 813 F. Supp. at 62, 64-65 (finding that injuries occurring in March 1988 and July 1988 and not healing until March 1989 were temporary); Hutchison v. United Parcel Serv., Inc., 883 F. Supp. 379, 382, 385, 395-96 (N.D. Iowa 1995) (concluding that injuries occurring in June and November 1990 and June 1991 that took until August 1992 to heal were temporary and thus not disabilities).

261 See McDonald, 62 F.3d at 95 (noting that the ADA “contemplates an impairment of a permanent nature”); Stevens v. Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983) (stating that the Re habilitation Act does not cover illnesses that do not permanently affect the plaintiff’s health). But see EEOC Compliance Manual § 902, supra note 231, at 902-30 (noting that “an impairment does not necessarily have to be permanent to rise to the level of a disability”).

262 See U.K. REP. No. 95-948, 95th Cong., 2d Sess. 2 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4750 (noting that the PDA mandates that employers treat disabilities caused by pregnancy the same “as all other temporary disabilities”); Questions and Answers on the Pregnancy Discrimination Act, 29 C.F.R. pt. 1604 app. at 203 (1995) (characterizing pregnancy-related conditions as temporary disabilities).

263 For cases concluding that, “absent unusual circumstances,” pregnancy is not a disability under the ADA because it is temporary and not the result of a physiological impairment, see Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995); Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 153 (S.D. Tex. 1995); see also Patterson v. Xerox Corp., 901 F. Supp. 274, 278 (N.D. Ill. 1995) (implying that pregnancy-related conditions are temporary but concluding that the duration of plaintiff’s preexisting back condition, which her pregnancy exacerbated, was “impossible to ascertain" and thus he would not dismiss plaintiff’s ADA claim); Saffer v. Town of Whitman, Civ. A. No. 85-4470-Z, 1986 WL 14090, at *1 (D. Mass. Dec. 2, 1986) (unpublished opinion) (finding that pregnancy cannot be a disability under the Rehabilitation Act because pregnancy is a temporary condition).

264 For example, in analyzing whether morbid obesity is a disability under the ADA, one court noted that the voluntariness of the condition is relevant in “determining whether a condition has a substantially limiting effect.” Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993). But see EEOC Compliance Manual § 902, supra note 231, at 902- 14 (“Voluntariness is irrelevant when determining whether a condition constitutes an impairment.”), Certainly, however, in the global scheme of things, reproduction is not voluntary but necessary for the survival of the species.

265 See supra notes 223-25 and accompanying text.

266 See Tsetseranos, 893 F. Supp. at 119 (concluding that protecting pregnancy as a disability under the ADA is unnecessary because of the PDA); Brennan v. National Tel. Directory Corp., 850 F. Supp. 331, 344 (E.D. Pa. 1994) (noting that because the plaintiff had already stated a claim under the PDA which “adequately" protected her rights, the plaintiff was not prejudiced when the court dismissed her claim under a state disability law modeled after the ADA); Byerly v. Herr Foods, Inc., No. CIV. A. 92-7382, 1993 WL 101196, at *4 (E.D. Pa. Apr. 6, 1993) (unpublished opinion) (dismissing the plaintiffs ADA claim while noting that pregnancy discrimination is already covered under the PDA); Villarreal, 895 F. Supp. at 152 (stating that “[p]regnancy discrimination is dis crimination on the basis of sex as opposed to discrimination on the basis of disability,” and that the “existence of both Title VII and the . . . [PDA] obviate the need to extend the coverage of the ADA to protect pregnancy”); see also EEOC Compliance Manual § 902, supra note 231, at 902-9 n.10 (noting that while pregnancy is not a disability under the ADA, pregnancy discrimination is prohibited by Title VII). But see Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994) (concluding that sterile woman, who was fired after becoming pregnant through experimental treatment, stated a claim under both the ADA and the PDA).

267 Interim Guidance, supra note 13, at 5.

268 Id at 6.

269 See id.

270 Insurers traditionally have tried to use experimental treatment exclusion clauses to deny coverage of some infertility treatments such as IVF. These attempts have been unsuccessful. See supra notes 64-70 and accompanying text.

271 See Interim Guidance, supra note 13, at 7.

272 See id. at 6 n.8.

273 Id. at 7.

274 Id. at 9.

275 Id. (citing Morgado v. Birmingham-Jefferson County Civil Defense Corps., 706 F.2d 1184, 1189 (11th Cir. 1983), cert. denied, 464 U.S. 1045 (1984); EEOC v. Whitin Mach. Works, Inc., 635 F.2d 1095, 1097 (4th Cir. 1980); EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979)).

276 Id. at 10.

277 See id. at 10-11.

278 See Lorber, Lawrence Z. et al., Employer Health Insurance Plans and the ADA: New EEOC Guidelines Will Cause Collision, Healthspan, Sept. 1993Google Scholar, available in Westlaw, HTHSP Database, at *8.

279 Eisenstat, supra note 1, at 6.

280 See Interim Guidance, supra note 13, at 11.

281 Id.

282 See id.

283 See id.

284 Id.

285 See Lorber et al., supra note 278, at *16-17.

286 Interim Guidance, supra note 13, at 11-12 (footnotes omitted).

287 See supra notes 63, 68-70 and accompanying text.

288 See supra notes 33-38, 46 and accompanying text.

289 See supra notes 45-46 and accompanying text.

290 Lafayette, Richard A., Preventing Disease Progression in Chronic Renal Failure, Am. Fam. Physician, Nov. 1, 1995, at 1783, 1783Google Scholar.

291 Eisenstat, supra note 1, at 42.

292 See supra part II.A.

293 Interim Guidance, supra note 13, at 12.

294 Id.

295 Lorber et al., supra note 278, at *17.

296 Id.

297 Interim Guidance, supra note 13, at 12.

298 Id.

299 Lorber et al., supra note 278, at *17-18.

300 See OTA Report, supra note 7, at 155 (citing an estimate by actuaries at Blue Cross/Blue Shield).

301 Interim Guidance, supra note 13, at 13.

302 Id.

303 See supra notes 55-57 and accompanying text.

304 See supra notes 58-63 and accompanying text.

305 See supra notes 60-62 and accompanying text.

306 See Begley, supra note 33, at 41.

307 See O'Rourke, supra note 4, at 380.

308 See supra part V.A.2.

309 See supra part V.A.I.