The decision is wrong, and not in the liberal, judicial-activist, decisions I dislike are wrong fashion. It's wrong because it violates the plain meaning of the PDA, which applies not just to "pregnant women" but to "women affected by pregnancy." I.e., any women of child-bearing age--pre- or post-conception. Not just the sexually active--since all women can be raped (a fact "the sluts deserve it" arguers always forget to account for), all women who are within the proper age frame can become pregnant and thus are "affected" by pregnancy--with all the medical, psychological, social, and economic burdens it brings (even if we were to restrict the debate to sexually active women, I neither know how nor desire the capacity for companies to discern which of its female employees were sexually active). As Ann of Feministing puts it:
How hard is it for judges to understand that 1) contraception is a basic, fundamental part of women's preventive and routine health care, 2) pregnancy -- which is the result of lack of contraception use -- disproportionately affects female employees, so 3) failure to cover contraception is discrimination against women? Seems clear as day to me.
This points to another issue--the panel not only fails to understand what makes one "affected by pregnancy," it also fails to discern the meaning of discrimination. The court used Union Pacific's failure to cover certain non-prescription contraceptive tools (such as condoms and vascetamies) as proof that their policy did not discriminate against women. This, of course, misses the point: the issue isn't who takes what pill or undergoes what procedure. The issue is who bears the medical affects of pregnancy. Women get pregnant, men do not, thus women bear the medical affects of pregnancy, and men do not. This should be obvious, but the dissent apparently felt the majority needed a basic reminder of Biology 101: "[T]he record demonstrates women are the only gender which can become pregnant." Not providing coverage of a significant medical condition that only affects women is discriminatory on face, and is precisely the sort of disparity that the PDA was designed to remedy.
These effects are not inconsequential. Reproductive Rights blogger Caitlin Borgmann remarks on the significant out-of-pocket expense women are forced to incur if they have to pay their own way on contraception. If they can't afford it, then their sexuality (voluntarily chosen or not--remember the rape issue) becomes a Sword of Damacles hanging over their head, threatening to decapitate their earning potential, subject them to serious health risks, and, oh yeah, force them to possibly bring a child into the world before they're ready. These disparities are real and should be obvious. That the court did not see them, and did not apply the plain meaning of the PDA which by its terms applies to any women "affected by pregnancy", suggests more of a willful blindness than any mundane dispute over statutory interpretation.