The Biden-Harris administration has proposed a rule implementing Obamacare’s controversial contraception mandate—again. Under the proposal announced Monday, certain health insurance plans would be required to cover over-the counter birth control.
The text of the law creating Obamacare, the Affordable Care Act, doesn’t explicitly require that plans cover contraceptives, so how did we get here?
What’s the Contraception Mandate?
Obamacare, passed by Congress and signed into law in 2010 by President Barack Obama, requires health insurance companies to cover certain kinds of preventive services with no enrollee cost-sharing. It instructs the Department of Health and Human Services to specify the types of preventive services for women that insurance plans must cover.
In 2011, HHS issued guidelines that insurance plans must include coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration. Plans that already covered millions of women were “grandfathered” and exempted from the requirement to provide preventive services with no cost-sharing. Many of these plans are still in effect today.
The contraception mandate sparked more than a decade of litigation, including famous victories for religious liberty at the Supreme Court for companies such as Hobby Lobby and groups such as the Little Sisters of the Poor, an order of Catholic nuns.
Regulations for religious and moral exemptions to HHS’ contraception mandate were strengthened under Obama’s successor, President Donald Trump. Last year, the administration of President Joe Biden and Vice President Kamala Harris proposed a rule to weaken those exemptions again. That rule has not been finalized yet.
Like the original contraception mandate, this week’s proposal to cover over-the-counter contraception is possible because Congress didn’t actually lay out the nitty-gritty, specific requirements in the text of Obamacare. Policy details were left to the discretion of the executive branch.
Proposed Biden-Harris Change
A press release from the Department of Health and Human Services lays out the gist of the changes.
“[M]ost group health plans and health insurance issuers” must cover over-the-counter methods of birth control such as emergency contraception, condoms, and pills “without cost sharing or requiring a prescription.”
The proposal also requires insurance plans to cover “a broader array” of pills and intrauterine devices, or IUDs, the press release says. Right now, plans must cover only one drug in different categories of contraception methods.
Exactly how this change would be implemented remains to be seen. The Biden-Harris administration is seeking public comment during a 60-day countdown as soon as the proposed rule formally hits the Federal Register. If finalized, the rule would mark another major change for contraception coverage under Obamacare.
Birth Control
The new rule is significant for several reasons. The Food and Drug Administration only recently approved an over-the-counter birth control pill. It’s called OPill and is sold at retailers such as Walgreens, Costco, and Amazon for about $20 per month.
Additional brands will follow suit and seek FDA approval to be sold over the counter. Another brand already has started the process for its drug, Zena.
Not everyone is cheering over-the-counter pills, though.
Beyond altering a woman’s menstrual cycle, birth control pills significantly affect a woman’s hormones. They can have mild to severe side effects—both mentally and psychologically—that vary widely from person to person.
Some experts are understandably concerned that medication that could have such drastic effects on the body would be available without consultation with a doctor. It even would be available to minors without their parent’s knowledge or consent.
Emergency Contraception
The HHS mandate also includes coverage for emergency contraception such as Plan B (levonorgestrel) and Ella (ulipristal acetate).
Until 2022, the label on both medications warned that the drug could prevent a fertilized egg from implanting in a woman’s uterus. For those who believe human life begins at fertilization, this means that these drugs could induce an abortion.
In 2022, the FDA modified the Plan B label to remove this warning, but it remains the case for Ella.
Plan B is available over the counter, but Ella requires a prescription. Under current rules, both Plan B and Ella are covered under Obamacare only if the woman has a prescription.
Under the Biden-Harris proposal, Plan B would be covered if a person purchases it over the counter.
Don’t Fall for Dishonest Framing
Mainstream media coverage notes “widespread bipartisan support for access to contraception” and refers to congressional Republicans’ votes against a Democrat-led bill that would enshrine a right to contraception in federal law.
But general support for the availability of contraception doesn’t mean that Americans automatically support taxpayer funding, insurance coverage for contraception, or violating religious liberty and conscience rights in the name of access. It’s a mistake to conflate general support for access with specific policy proposals.
Along those same lines, declining to support a bill enshrining a federal right to obtain contraceptives doesn’t mean that that someone opposes access to contraception. Rather, such opposition acknowledges that it would be a mistake to enact a wide-reaching bill that, for example, would gut religious freedom and protections for conscience rights, could hamper the FDA’s ability to regulate contraceptive drugs and devices, and could make it more difficult to enforce federal safety regulations.
In other words, it’s legitimate to be concerned that enshrining a legal right to contraception creates more problems than it solves.
Don’t fall for demagoguery. Contraception already is widely available, affordable, and easy to access. The New York Times’ coverage may insinuate otherwise, but voting against poorly crafted bills doesn’t mean that Republicans in Congress are “against” contraception access generally.
What’s Next?
Once the proposed rule is published in the Federal Register, Americans will have 60 days to provide feedback through public comment. Whether the Biden-Harris administration will take such concerns into account if and when it publishes a final rule remains to be seen.
The results of the Nov. 5 election could be a factor in what happens. We don’t yet know who will take office as president on Jan. 20, 2025.
If Harris wins and the rule hasn’t yet been finalized, she presumably would take it up and get it across the finish line. If Trump wins and the rule hasn’t been finalized, his second administration could stop the rule from being issued.
If the rule has been finalized, the new administration still could amend or revoke it. Alternatively, depending on the makeup of Congress, lawmakers could use the Congressional Review Act to overturn the rule (and other recent rules from the Biden-Harris administration, for that matter).
Time will tell what’s next for the text of the final rule and its ultimate fate as part of Obamacare.
In the meantime, Americans have an opportunity to weigh in on a proposal that would expand coverage for controversial over-the-counter drugs that have serious side effects for women.
