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The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of the recent decisions, Saks v. Franklin Covey, decided by the Second Circuit in 2003, which addresses the application to Title VII and the ADA to a plan's exclusion of infertility treatments (and, to a lesser extent, prescription contraceptives), and outline the types of judicial challenges ERISA regulated plans can expect in its wake.



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