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The White House announced on Monday that it would propose new rules under the Affordable Care Act that would require insurers to cover over-the-counter birth control at no cost to patients, as it seeks to expand access to contraception and cut out-of-pocket costs.
The rules would include emergency contraception, a newly approved nonprescription birth control pill, spermicides and condoms and would affect 52 million American women of reproductive age who rely on private health insurance. They will be subject to a 60-day public comment period and, if finalized, would represent “the most significant expansion of contraception benefits” in more than a decade, said Jennifer Klein, the director of the White House Gender Policy Council.
The proposal comes just two weeks before the election as Democrats, including Vice President Kamala Harris, make the case that the threat to reproductive rights extends beyond the Supreme Court’s 2022 decision, in Dobbs v. Jackson Women’s Health Organization, that eliminated the national right to abortion.
“At a time when contraception access is under attack, Vice President Harris and I are resolute in our commitment to expanding access to quality, affordable contraception,” President Biden said in a statement. “We believe that women in every state must have the freedom to make deeply personal health care decisions, including the right to decide if and when to start or grow their family.”
The court ruled in that case that the “right to privacy” did not confer a right to abortion. In his concurring opinion, Justice Clarence Thomas said the same rationale should be used to overturn other “demonstrably erroneous decisions” that relied on a right to privacy, including Griswold v. Connecticut, a 1965 case declaring that married couples had a right to contraception.
“Clarence Thomas said the quiet part out loud, that contraception could very much be at risk and it is at risk,” Ms. Harris told the late-night host Jimmy Kimmel in June.
The Affordable Care Act requires that most private health plans cover contraception without “cost sharing,” or co-payments, but the provision applies only to prescription birth control pills; nonprescription birth control pills were not available when President Barack Obama signed the measure into law in 2010. Last year the Food and Drug Administration for the first time approved an over-the-counter birth control pill, called Opill.
In anticipation of that announcement, Mr. Biden issued an executive order directing federal agencies, including the Department of Health and Human Services, to consider how to expand access to over-the-counter birth control. Monday’s proposed rule flows from that directive.
Some states, including Missouri, have tried to restrict access to contraception by banning public funding for certain methods, including intrauterine devices and emergency contraception — the so-called morning-after pill, also known as Plan B — which opponents say induce abortion. The F.D.A. says that is incorrect.
Polls have found widespread bipartisan support for access to contraception. In the aftermath of Dobbs, Democrats began pushing legislation to enshrine a right to contraception in state or federal law. Republicans have consistently voted against such measures.
“Republicans’ own actions make them the most effective messengers against themselves,” said Chris Fleming, a Democratic strategist who works with the advocacy group Americans for Contraception, which has been running ads against Republicans like Senators Rick Scott of Florida and Josh Hawley of Missouri.
The group has also been parading a giant inflatable intrauterine device around the country; the balloon arrived in Washington in the spring after Senate Republicans blocked the Right to Contraception Act. Every Republican except Senators Susan Collins of Maine and Lisa Murkowski of Alaska voted against the bill.
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