Reinvigorating the Women's Health & Cancer Rights Act

Abstract

Women who are faced with a devastating diagnosis of breast cancer face a grueling treatment regimen, typically involving some combination of surgery, chemotherapy, and radiation. Many of these women desire reconstruction and have a right to insurance coverage for it under the Women’s Health and Cancer Rights Act (WHCRA). However, because of an unduly narrow interpretation of the Act, such women are often presented with a false dichotomy between a full mastectomy with reconstruction and a partial mastectomy or lumpectomy without. This article uses legislative history, plain meaning, and state case law on similar issues to show that the WHCRA is properly interpreted as providing a right to insurance coverage for reconstruction after partial, as well as full, mastectomies. The author’s experiences with breast cancer treatment are used to illustrate the problem. Additionally, the article argues that the question of whether the WHCRA contains a private right of action separate from ERISA should be revisited.