Senate Democrats are urging federal regulators to require health insurance companies and government health programs to cover over-the-counter birth control pills at no cost as the first nonprescription contraceptive medication is poised to hit the market next year.
Under the Affordable Care Act, insurers must cover all Food and Drug Administration-approved contraceptives without cost-sharing. But the Health and Human Services, Labor, and Treasury departments' standing guidance refers only to prescription products.
In July, the FDA cleared HRA Pharma's application to sell Opill, also known as norgestrel, as the first OTC birth control medicine in the U.S.
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The availability of an over-the-counter birth control medication—and the possibility that the FDA will assign nonprescription status to other contraceptives—may increase access but expose patients to higher costs because insurance typically doesn't cover OTC products.
In a letter sent to HHS Secretary Xavier Becerra, acting Labor Secretary Julie Su and Treasury Secretary Janet Yellen on Friday, nearly half of the 100-member Senate calls on President Joe Biden's administration to change that.
"We urge you to improve health insurance coverage, both public and private, of the full range of FDA-approved, granted or cleared contraceptive products—including birth control that is available over-the-counter," Democrats led by Appropriations Committee Chair Sen. Patty Murray of Washington wrote.
"The FDA’s approval of Opill is a milestone; however, for an OTC birth control pill to meet its potential and be truly accessible, federal departments must ensure that it is covered without cost-sharing and without the need for a prescription as a condition of coverage," the senators wrote.
This pressure from Democrats on Capitol Hill aligns with the party's broader focus on reproductive rights and health following the Supreme Court ruling last year enabling states to ban abortion and an ongoing legal challenge to the FDA's approval of the prescription abortion medication mifepristone. Democratic politicians and advocates have identified greater access to contraception as a key aspect of the response to the 2022 court decision.
Sens. Joe Manchin (D-W.Va.), Jon Ossoff (D-Ga.) and Kyrsten Sinema (I-Ariz.), who caucuses with Democrats, did not sign the letter, nor did any Republicans.
The administration issued a Request for Information on the subject of OTC birth control coverage last month. "We are working with the Department of Labor and Department of the Treasury to better understand how a policy change that could further increase access to affordable, preventive care might affect consumers, pharmacies and health insurance providers," Becerra said in a Sept. 23 news release.
In addition to birth control, the departments seek comment on coverage of tobacco cessation products, folic acid during pregnancy, and breastfeeding supplies.
Last year, the Centers for Medicare and Medicaid Services issued guidance stating that insurers must cover OTC emergency contraceptives when prescribed, but merely "encouraged" carriers to pay for regular birth control pills sold over the counter.
State laws in Maryland, New Jersey and Washington require OTC contraceptives be covered without cost sharing, and a similar California statute will take effect next year, according to KFF. Delaware, Illinois, Massachusetts, New York and Oregon have laws on the books that require some OTC contraceptive coverage, KFF has reported.
The Contraceptive Access Initiative expressed support for the Democrats' aims. “It makes no sense to cover contraception when obtained with a prescription, and not cover it without—the enormous health benefits are the same," co-founder Dana Singiser said in a statement. "People should be able to use their insurance coverage for birth control pills whether they get it by prescription from a medical provider or whether they simply purchase it off the shelf at a pharmacy."
The Blue Cross Blue Shield Association would not say how its affiliates would respond to such a policy, but it did not signal opposition. "Each company is responsible for making its own coverage decisions, including for OTC products. Each company provides access to prescription contraceptives without member cost-sharing in accordance with Health Resources and Services Administration’s recommendations and federal guidance,” the association said in a statement.
The health insurance trade group AHIP did not respond to a request for comment.
