Republicans Favoring OTC Contraceptives? Not As Strange As It Sounds

The ongoing birth control debates may be changing focus again, if some GOP candidates for Senate have their way. The Washington Post reports that Rep. Cory Gardner (R-Colo.), as well as Virginia Senate hopeful Ed Gillespie and Minnesota challenger Mike McFadden, have all endorsed the availability of certain contraceptives over-the-counter (OTC) rather than via prescription. This position is not as novel as it might sound.

Essential Health Benefit

The Patient Protection and Affordable Care Act (ACA) considers preventive services an essential health benefit that must be covered by all health insurance plans. Family planning services, including birth control, are considered preventive services; FDA-approved contraception must be made available to beneficiaries without cost-sharing. The debate has most recently centered upon whether employers with sincerely-held religious beliefs must be required to provide contraceptive coverage for certain types of medication that the religious employers believe to be abortifacients. Despite the Supreme Court’s decision in Burwell v Hobby Lobby Stores, holding that closely-held for-profit corporations should be offered the same accommodation as religious not-for-profit corporations, lower courts and HHS continue to grapple with determining how close is closely-held and whether the available accommodation infringes on religious liberties.

OTC Emergency Contraception

Emergency contraception, which is taken following unprotected intercourse to prevent fertilization, is included as an FDA-approved contraceptive that should be covered by health insurance. Prior to that decision, the FDA had required emergency contraception to be subject to point-of-sale age restrictions or placed behind a pharmacy counter. Despite an ongoing scientific consensus that emergency contraception is safe for consumers of all ages and should be available OTC, the Obama administration insisted on retaining the restrictions in 2007. At that time, HHS Secretary Kathleen Sebelius overruled the FDA’s determination of the safety of OTC emergency contraception, and President Obama controversially proclaimed  “I will say this, as the father of two daughters: I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.” In 2013, a judge in the U.S. District Court for the Eastern District of New York ordered the FDA to make some types of emergency contraception available OTC. The FDA has since complied with that order.

OTC Oral Contraception?

The two recurring issues regarding making certain contraceptives available OTC and determining who should pay for contraceptive coverage may be colliding. Bobby Jindal, the Republican governor of Louisiana, authored a 2012 op-ed in the Wall Street Journal arguing against requirements that women visit a doctor and obtain a prescription as a requirement for purchasing birth control. Jindal’s argument followed a statement by the American College of Obstetricians and Gynecologists (ACOG) recommending that oral contraceptives be available OTC and without a prescription. Several GOP Senate candidates have recently endorsed Jindal’s argument. Although this may appear in opposition to the Republican party’s position against the ACA’s contraceptive mandate, looks can be deceiving.

In a July 2014 position paper, ACOG discussed the inherent conflicts between supporting health insurance coverage of contraceptives and supporting OTC availability: health insurance does not cover OTC drugs in most cases. Therefore, GOP candidates supporting OTC oral contraceptives is consistent with the party’s opposition to the contraceptive mandate, as well as its long-standing opposition to government regulations. It remains to be seen whether voters in Colorado, Minnesota, and Virginia will agree. Further, as ACOG says, “Cost is a major factor in a woman’s consistent use of contraception, and many women simply cannot afford the out of pocket costs of contraceptives without health insurance coverage.” Can oral contraceptives be widely available and affordable? The country may find out soon.