Two months into the Trump presidency, the fate of the Affordable Care Act’s contraceptive mandate is still undecided. But although the Trump administration hasn’t yet changed or removed the controversial regulation that requires insurance companies to cover birth control without making patients share the cost, many states are introducing or revising legislation to shore up or expand access to birth control. And if the federal mandate changes, that could mean that access to contraception could vary more and more widely between states.
Unlike other controversial parts of the ACA, this mandate is controlled by the Department of Health and Human Services, which could unilaterally drop birth control from Obamacare’s list of fully covered preventive services, allowing insurers to charge co-pays for contraception again. If the mandate were revoked or weakened, insurers could return to the pre-Obamacare status quo, where women shouldered more out-of-pocket expenses for contraception. Legislators in states including New York, Minnesota, Massachusetts and Oregon have introduced measures meant to ensure that as many women as possible will still be able to get no-cost birth control, but their position isn’t shared by all state-level politicians. In fact, some health care experts are concerned that birth control access may be shrinking in a handful of states that have moved to restrict government funding for family planning providers that also offer abortion services. In the waning days of his administration, former President Barack Obama issued a rule effectively barring more states from enacting similar funding restrictions — which often target Planned Parenthood — but President Trump recently signed a law eliminating that rule.
The states that are expanding their contraceptive access laws aim to address two common obstacles to obtaining birth control: cost and access. Reducing the cost of birth control was a key goal of the contraceptive mandate. From 2012, when the mandate went into effect, the proportion of privately insured women who paid nothing out-of-pocket for birth control pills, the most commonly used non-permanent form of contraception, rose from 15 percent to 67 percent.
These state lawmakers hope that even if the federal contraceptive mandate is rescinded, their constituents will still have easy and cheap access to contraception, and they’re taking three approaches to make that happen: codifying the contraception mandate in state law, requiring insurance companies to provide 12 months’ worth of certain contraceptives at once, and allowing pharmacists to prescribe some kinds of birth control.
So far, California is the only state that has adopted all three approaches, although Maryland may soon do the same. Three other states have also passed laws preserving the no-cost contraception mandate, four allow pharmacists to prescribe birth control,1 and seven require insurers to provide a 12-month supply of contraception.2 An additional nine states and the District of Columbia are considering measures that would codify the contraception mandate in state law and in some cases expand it to include vasectomies, according to the Guttmacher Institute, which tracks state-level reproductive health policy; legislation requiring insurers to provide a year’s supply of birth control is pending in 14 states. Eleven states, meanwhile, are considering laws that would allow pharmacists to prescribe birth control.
|STATUS OF CONTRACEPTIVE LEGISLATION BY CATEGORY|
|STATE||PHARMACISTS CAN PRESCRIBE||MAINTAIN COVERAGE||PROVIDE A YEAR’S SUPPLY AT ONCE|
|CA||In place||In place||In place|
|DC||In place||Pending||In place|
|IL||Pending||In place||In place|
|MD||Passed, on the governor’s desk||In place||In place|
|OH||Passed, signed by governor||—||—|
|OR||In place||Pending||In place|
|TN||Passed but not implemented||Pending||Pending|
|VA||—||—||Passed, signed by governor|
|VT||—||In place||In place|
|WA||In place||Pending||Passed, on the governor’s desk|
It’s not yet clear how many patients would be affected by the new laws making it easier to access contraceptives, or whether the interventions will achieve their goals. With the contraceptive mandate still on the books, state laws reinforcing birth-control coverage are somewhat duplicative, although the legislation in California, Illinois, Vermont and Maryland — the first states to enact state-level contraception mandates that prohibit cost-sharing for patients — was designed to supplement and reinforce the federal mandate, not merely replace it. When the Affordable Care Act was first implemented, not all insurers were following the contraception mandate, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research organization that supports abortion rights. “Insurers were requiring cost-sharing, they weren’t covering methods like IUDs, they were delaying women’s access to birth control,” she said. California’s law, the first of its kind, was part of an effort to ensure that the mandate was being enforced.
Now, legislators in other states are motivated — at least in part — by fears that the Trump administration will revoke or weaken the contraception mandate. Timothy Jost, a law professor at Washington and Lee University, said that instead of rescinding the mandate, the Trump administration could allow any employer — not just religious organizations and family-owned businesses — to opt out for religious reasons.3 “It’s hard to estimate exactly how many companies would opt out, but many women would be affected,” Jost said. Although about six in 10 insured workers are covered by their employers’ self-funded plans, which aren’t subject to state-level requirements, national insurers might still decide to cover contraception at no cost to avoid the headache of navigating a patchwork of state laws.
Allowing people to pick up a year’s worth of contraceptives at once has been shown to cut down on unintended pregnancies. A 2011 study found that rates of unintended pregnancy and abortion decreased significantly when patients didn’t have to return to the pharmacy every one to three months to pick up more birth control pills. An independent review of the possible effects of California’s 12-month supply law, conducted before the law was passed, estimated that it would save people covered by eligible insurance plans $42.8 million each year because they would not need to make as many visits to their doctors’ offices and they were less likely to be faced with an unintended pregnancy. “Every little barrier — remembering to take the pill, getting a prescription, going to the pharmacy — makes it easier for a woman to miss a few days or stop taking the pill entirely,” said Sarah Prager, a professor of obstetrics and gynecology at the University of Washington. “It’s a victory when you remove even one barrier.”
Not everyone thinks that requiring pharmacies to provide a 12-month supply of birth control is a good idea, especially insurance companies and legislators who fear that contraceptives will go to waste. In California, insurance companies and health plan associations were especially opposed to the 12-month supply law, saying that women might not use all of their pills or might switch birth-control methods partway through the year, which would mean that medications the insurance company had paid for would get thrown out. However, in other states, similar laws have won a surprising bipartisan consensus. A 12-month supply law moving through the South Carolina legislature was co-sponsored by a Republican, and last year, a Tennessee law that will allow pharmacists to prescribe birth control was also co-sponsored by Republicans.4
Advocates for allowing pharmacists to prescribe birth control like the pill, the patch or the ring — which they are currently allowed to do in four states and the District of Columbia — say that allowing patients to bypass the doctor and head straight to their nearest Walgreens when they run out of contraceptives will solve a similar problem. The research on this, however, is mixed. Studies have shown that women are good at self-screening for problems that make it risky to take hormonal contraceptives, such as high blood pressure, and a study conducted in Washington state, where some pharmacists have been prescribing birth control for years, showed that both women and pharmacists were happy with the experience. But a study of women living in Texas near the Mexico border found that those who obtained birth control over the counter in Mexico were somewhat more likely to skip preventive care services than women who had to go to a clinic to get a prescription — although a separate study found that women who got their contraceptives at a clinic were less likely to continue using birth control than those who got them over-the-counter in Mexico, in part because of the challenge of scheduling a doctor’s visit.
The experiences of pharmacists in California and Oregon, where prescribing laws have been on the books for a little over a year, suggest that another possible downside to these laws is added cost for women. Insurers are required to cover contraceptives without cost-sharing, but they have no obligation to pay for a pharmacist’s consultation with a patient. That means that either the pharmacist’s fee — generally $25 to $50 — will likely come out of the patient’s pocket or the pharmacist has to work for free.
Kathleen Besinque, a pharmacist and a professor of pharmacy at Loma Linda University who helped draft California’s legislation, says that most of the people who have sought out birth control at her clinic have been women in their twenties who like the convenience of being able to get a birth control refill after work or on weekends, without having to schedule a doctor’s appointment. “These are working women who are able to pay,” she said. “For them, convenience might sound like a luxury, but if you have to give up half a day of work to see a health care provider, it becomes more of a necessity.”
Some health care groups have criticized pharmacist prescription laws for not setting age limits — in California, for example, pharmacists can prescribe to women younger than 18. Meanwhile, advocates for allowing birth control to be sold over the counter, like the American College of Obstetricians and Gynecologists, were also skeptical of the move, saying it simply replaced one gatekeeper (the physician) with another (the pharmacist).
Despite these concerns, reproductive health advocates like Jeff Barker, a Democratic state representative in Oregon who’s co-sponsoring a bill addressing reproductive health, say they’re encouraged by a surge of energy around protecting contraceptive care. “The tone of the country definitely helps,” he said. “There’s a sense that protecting women’s health is a real priority.”
But Prager, the OB-GYN in Washington, is worried about what she sees as a growing gulf between the kinds of care women can receive in different states. “It’s great that big states like New York are making this a priority, because they can affect a lot of women,” she said. “But the more politicized the issue of women’s health becomes, the more women’s birth control access really will depend on where they happen to live.”