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The strange politics of over-the-counter birth control, explained

Ted Cruz says he agrees with Alexandria Ocasio-Cortez about birth control. Don’t be too sure.

Rep. Alexandria Ocasio-Cortez (D-NY), a co-sponsor of the Affordability Is Access Act, speaks during a meeting of the House Committee on Oversight and Reform on June 12, 2019 in Washington, DC
Rep. Alexandria Ocasio-Cortez (D-NY), a co-sponsor of the Affordability Is Access Act, speaks during a meeting of the House Committee on Oversight and Reform on June 12, 2019 in Washington, DC.
Alex Wong/Getty Images

This week the debate around birth control policy got weird.

It started when Rep. Alexandria Ocasio-Cortez (D-NY) tweeted that contraception should be available over the counter. Soon, she had an unexpected supporter: Republican Texas Sen. Ted Cruz.

His support was likely a bit of a red herring. Some Democrats and reproductive health advocates have pushed to make birth control over-the-counter in recent years so that people can get it easily, without a visit to their doctor. But Republicans have supported it for another reason: It could be a way around the Affordable Care Act mandate that employer-based health insurance covers birth control without a copay. Ultimately, that could make birth control more expensive.

Democratic legislators say making the medication over-the-counter won’t help Americans if it goes up in price. “You cannot have real access if you can’t afford it,” Sen. Patty Murray (D-WA) told Vox.

So on Thursday, Sen. Murray, Reps. Ayanna Pressley (D-MA) and Alexandria Ocasio-Cortez (D-NY), and others introduced the Affordability Is Access Act. The bill won’t make birth control over-the-counter — only the Food and Drug Administration can do that. But it would ensure that if the FDA does act, birth control would remain covered by insurance, to prevent a scenario where the medication becomes easier to get but harder to pay for.

The bill will have a tough road in the Republican-controlled Senate, and Cruz has not yet said whether he’ll support it. But “we’re going to make it into an issue,” Murray said.

“If women raise their voices across the country,” she added, “eventually we’ll get there.”

Making birth control over-the-counter could actually make it more expensive

Birth control is just as safe, if not safer, than many over-the-counter medications, and reproductive health advocates have argued for years that it should be available over-the-counter as well. They’ve had some successes; laws in 12 states and Washington, DC., allow pharmacists to dispense birth control without a doctor’s prescription.

But most Americans still need to visit a physician to get birth control, which advocates say creates an extra obstacle to getting the medication. Groups like the American College of Obstetricians and Gynecologists have supported making birth control over-the-counter.

Some Republicans in Congress have also supported such a shift, but as Christina Cauterucci notes at Slate, it’s not necessarily about ease of access for them. Under the Affordable Care Act, most employers are required to offer insurance to their employees that includes birth control coverage with no copays or other cost-sharing. The Trump administration introduced broad exemptions to that requirement in 2017, but didn’t get rid of it entirely.

If birth control became over-the-counter, though, insurance companies could stop covering it. That’s appealing to Republicans, who have long opposed the coverage requirement in the ACA. They argue that employers should not have to be involved in offering birth control, especially if it conflicts with their religious views. That may be the explanation for Sen. Cruz’s support for the idea; his office has not responded to Vox’s request for comment.

A loss of insurance coverage for birth control would likely drive up the cost for many Americans with insurance who can currently get their contraception at no extra charge (they are already paying for some of the cost with their health insurance premiums). Essentially, Americans would be trading affordability for ease of access, a trade-off many Democrats and reproductive health groups don’t support.

That’s why Murray, Pressley, Ocasio-Cortez, and California Democratic Reps. Ami Bera and Katie Hill, introduced the Affordability Is Access Act on Thursday. Under the bill, if the FDA does approve birth control pills for over-the-counter use, all private insurance plans would still have to cover the medication without cost-sharing. Such a decision by the FDA is far in the future, according to the nonprofit Guttmacher Institute. So far, manufacturers of only a few types of oral contraceptives have announced their intention to apply for over-the-counter status, and the process can take years. Even if one pill is approved, other versions would have to be approved separately.

Still, the Affordability Is Access Act is meant to ensure that in the event that birth control does move over-the-counter in the future, it will remain affordable. The legislation was introduced in both houses of Congress, but its prospects in the Senate are somewhat dim.

Murray told Vox she had sent the bill to Cruz and was “hoping for a positive response back.”

“This is an opportunity for Republicans to join us,” she said. “I’m hoping they do, but I’m also a realist and know that they likely won’t.”

However, she said the legislation is crucial at a time when reproductive health is in the spotlight, as near-total bans on abortion pass state legislatures around the country.

“One of the most important kinds of health care women have is access to be able to control their reproductive health,” Murray said, “and contraceptive care is a critical part of that.”

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