Constitutional issues raised by states' exclusion of fertility drugs from Medicaid coverage in light of mandated coverage of Viagra.

I. INTRODUCTION On July 2, 1998, officials at the Health Care Financing Administration ("HCFA"), the federal agency responsible for administering the Medicaid program,' mandated that state Medicaid programs provide coverage for the impotency drug Viagra.2 The HCFA's announcement has proven very controversial, encountering resistance from many states who view the mandate as financially impairing their ability to provide other Medicaid services.3 Mandated Medicaid coverage of Viagra is also curious, considering that the Medicaid statute specifically permits states to exclude fertility drugs, a category of drugs into which Viagra falls, from coverage under state Medicaid programs.4 Moreover, most states do in fact decline to cover these drugs.5 Although Viagra primarily treats erectile dysfunction, it also treats male infertility in distinct cases.6 Thus, the HCFA mandate essentially results in states providing Medicaid coverage of a male fertility drug while excluding female fertility drugs from coverage.7 With its mandate," the HCFA has given female Medicaid recipients a constitutional aid with which to challenge the states' exclusion of female fertility drugs from Medicaid coverage. This Note identifies the potential constitutional causes of action women have against the discrepancy in Medicaid coverage, and assesses the likelihood that their arguments will succeed. Part II of this Note explores the history of the Medicaid program as well as its current statutory construct. It discusses the general purpose of the program and its attempt to provide medical assistance to "categorically" as well as to "medically" needy individuals. The interaction between the federal and state governments in implementing and administering Medicaid programs is also explored in this part of the Note, with an emphasis on the federal government's ability to dictate the terms of state Medicaid programs. Finally, Part II discusses the federal Medicaid guidelines with respect to states' prescription drug coverage under their individualized Medicaid programs. Part III addresses the problem of infertility in the United States. It focuses on the prevalence of infertility in distinct socioeconomic groups and explores the various types of fertility drugs used to aid women suffering from certain reproductive abnormalities. Part III concludes with a discussion of both federal and state policies regarding Medicaid coverage of fertility drugs. Part IV begins with an overview of the drug Viagra and its treatment of erectile dysfunction in men. The Note also discusses the HCFA's reasons for determining that state Medicaid programs should be required to cover Viagra, and it explores the states' reactions to the HCFA's mandate. Part IV ends with a discussion of the classification of Viagra as a male fertility drug. Part V discusses the possibility of female Medicaid recipients bringing constitutional challenges to a state's exclusion of fertility drugs from Medicaid coverage in light of the HCFA's mandated coverage of Viagra. Part V.A first addresses a possible claim that the discrepancy in coverage violates female Medicaid recipients' substantive due process rights; however, the Note quickly dismisses this argument because of its probable failure. Next, the Note examines the more plausible claim of an equal protection violation. Part V.B describes the traditional equal protection construct used by the Court, including the standards of scrutiny applicable to various equal protection challenges. The Note proceeds to apply the traditional equal protection construct to a possible challenge of state Medicaid programs' refusal to cover fertility drugs in light of the federally mandated coverage of Viagra. As such, the Note argues that the inequality created by this situation deserves a higher standard of scrutiny than the traditional intermediate level of scrutiny used for gender classifications. It then proceeds to apply this higher level of scrutiny to the current situation to determine the likelihood that the Court would rule in the plaintiffs favor. …