A new proposal from the Biden administration would require health insurance companies to fully cover the costs of over-the-counter birth control, including condoms. The proposal represents "the largest expansion of contraception coverage in more than a decade," said Vice President and 2024 presidential candidate Kamala Harris in a statement.
"This new action would help ensure that millions of women with private health insurance can access the no-cost contraception they need," President Joe Biden said.
The Affordable Care Act (ACA) already requires private health insurance plans to cover prescription birth control without direct cost-sharing in the form of things like co-pays. The administration's new proposal—a test case for expanding coverage for all sorts of over-the-counter preventative services—would expand the ACA's requirement to nonprescription contraceptives as well.
This is a bad plan, economically and politically.
Economically Illiterate
Democrats push plans like this under the guise of making birth control free or more affordable. But just because people aren't shelling out cash for contraception at point-of-sale doesn't mean they won't be paying for it in other ways.
Every time insurance companies are forced to cover more services without cost-sharing it raises their cost of doing business and these costs get passed on to consumers in the form of things like more expensive plans overall, higher deductibles, and higher co-pays for other services. Even for people who take advantage of the "free" contraception, it may simply shift their costs. And for people who don't need covered contraception, it's an especially bad deal.
Advocates of schemes like this one ask people to think of women who couldn't otherwise afford contraception. They might even appeal to cost savings that supposedly accrue by preventing unwanted pregnancies. But this argument falls flat in myriad ways. First, because (private and governmental) programs already exist to help low- or no-income people access free or low-cost birth control options. Second, because plans like these still rely on insurance and many individuals—particularly those in especially vulnerable groups, like undocumented immigrants and people in abusive relationships—either lack health insurance coverage or may have reasons not to use it to purchase contraception. Third, by mandating "free" insurance coverage, requirements like these give companies no incentive to keep costs low.
A big part of the reason why medical care in the U.S. is so expensive is because it's completely removed from the free market; everything goes through middlemen and a convoluted insurance system, so health care providers and pharmaceutical companies and the like have no accountability to consumers and no reason to compete on the basis of affordability. To truly lower costs, the government should allow more contraceptives to be sold over-the-counter without being subsidized by insurance so manufacturers have to compete in a free market and have an incentive to worry about price.
Adding all sorts of over-the-counter contraception to the list of "free" things that insurers must provide will ultimately raise the cost of all sorts of contraception, making it less affordable at point-of-sale for people purchasing without insurance and driving up insurance and health care costs overall even for those with insurance coverage.
This isn't just some crazy libertarian conspiracy. In the proposed rules submitted to (but not yet officially published by) the Office of the Federal Register, the government itself acknowledges "the possibility that increasing coverage without cost sharing for recommended preventive services…could lead to greater demand for those services and potentially higher prices charged by providers," which "could result in higher costs to consumers, both in the form of higher premiums for people with insurance and in the form of higher out-of-pocket costs for people who do not use insurance coverage to obtain OTC contraceptive products."
Politically Toxic?
Avowed Democrats might cheer proposals like this one from the Biden administration. But avowed Democrats are already going to vote Democrat. The real question, politically, is how a policy like this plays among independents, swing voters, and moderate conservatives who might consider voting for a Democrat in certain circumstances (like, say, an election year where the GOP's presidential candidate is wildly unpopular among certain subsets of the party). Even without looking at polling, I think we can make an educated guess about this.
Moderate Americans are not the most sexually tolerant bunch generally, nor are they huge fans of shouldering costs for services and programs seen as benefiting some small group at everyone else's expense. I don't imagine moderates will be too thrilled about being asked to pay more in health care costs so that other people can get free condoms. The plan basically triggers every outrage button out there, and not entirely without reason (even if, sure, some of the outrage will be based on sexist tropes and weird, offensive stereotypes about the kinds of people who purchase condoms and contraception).
It's the kind of proposal tailor-made to incite culture wars while also painting Democrats as out-of-touch with or insensitive to economic realities.
We needn't be entirely speculative here, of course; we can also look back at how people reacted to the original contraception mandate. One 2014 survey found the plan was supported by 78 percent of Democrats but just 60 percent of independents and 35 percent of Republicans. The contraception mandate was especially unpopular among older Americans (who are more likely to be voters) and way less popular among men (whom Democrats are currently worried about shedding) than women. While 70 percent of independent women supported it, only 50 percent of independent men did.
Those aren't abysmal numbers, but they're not indicative of a wildly popular policy outside of the Democratic base, either. And this was for a mandate that only covered prescription contraception. We might expect lower support for a broader mandate like the one being proposed now. It's also worth keeping in mind that numbers like these may not tell the whole story politically, because people OK with a plan are less likely to care deeply about it than those who oppose it.
Which is all to say that introducing a plan like this right before an election in which winning over moderate voters is key seems to be a pretty weird move, at the very least.
An Expansive Plan
So let's drill down into the plan a little bit more.
"Under the proposed rule, for the first time, women would be able to obtain over-the-counter (OTC) contraception without a prescription at no additional cost," states a White House Fact Sheet released Monday. "This proposed rule, if finalized, would be the most significant expansion of contraception coverage under the Affordable Care Act since 2012."
The White House does not specify what types of OTC contraception would have to be covered, though it does specifically mention that it would include the one type of OTC oral contraceptive approved by the U.S. Food and Drug Administration.
But the proposed rules make clear that the category of covered items would be expansive, applying to all "contraceptive items that are preventive services under the Public Health Service Act." According to the Health Resources and Services Administration, this includes a full range of contraceptives including over-the-counter options like condoms, contraceptive sponges, emergency contraception, and spermicides.
Elsewhere, the proposal notes that "plans and issuers may wish to…ensure that an individual is obtaining condoms for the use of a woman covered under the plan, rather than for use by another individual"—a statement tacitly acknowledging that "free" condoms are part of the scheme. The proposal also requests comment "on whether plans and issuers should be required to include in this statement the general names or types of OTC contraceptive items that are covered without a prescription and without cost sharing" and lists as examples "daily oral contraceptive," "Plan B (levonorgestrel)," or "condoms."
The proposed rules also specifically mention coverage for "software applications granted marketing authorization by the FDA for use as contraception."
The new proposal will be open to a 60-day public comment period.
"These proposed rules would not modify federal conscience protections related to contraceptive coverage for employers, plans, and issuers," according to the Department of Health and Human Services.
Beyond Contraception
While the proposed over-the-counter contraception mandate has been getting a lot of attention, an element of this that's been flying under the radar is the fact that this is a test case for much bigger changes.
"The Departments are interested in minimizing barriers to coverage and expanding the scope of coverage without cost sharing for all recommended preventive services," the new proposed rules state. But because this "could require significant changes to current plan and issuer operations," the government is taking an "incremental approach in this rulemaking with respect to the types of recommended services addressed," which means it's focusing "initially on expanding coverage of contraception." Starting with changes to contraception coverage would allow authorities "to gather additional feedback on challenges and benefits of adopting these proposed policies before considering whether and how to propose similar requirements with respect to other recommended preventive services," it says.
Later, the draft proposed rule states that the government is seeking "on whether to finalize these policies only with respect to contraception as proposed, or to instead finalize these policies with respect to all preventive services, or with respect to a larger subset of preventive services." Specifically, it requests comment "on issues related to coverage of additional specific OTC preventive products without a prescription (for example, tobacco cessation items) in addition to OTC contraceptive items, or all OTC preventive products without a prescription."
More Sex & Tech News
• A new report from the Society of Family Planning finds an increase in U.S. abortions driven by an increase in telemedicine prescription of abortion pills. Many of these took place under telehealth shield laws, which "provide legal protections to clinicians who offer abortion care via telehealth to people in states with bans on abortion or telehealth," the group explains. "The average monthly number of all telehealth abortions provided under shield laws averaged 9,700 in the second quarter of 2024," up from percent from the first quarter of 2024. Texas saw "the highest number of medication abortions via telehealth under shield law protections, averaging 2,800 medication abortions offered to people each month."
• John Wilson, the former general counsel for the Florida Department of Health who sent threatening letters to TV stations over ads promoting a reproductive freedom amendment, told a federal court that he sent the letters at the behest of Florida Gov. Ron DeSantis' office. Wilson also said that after sending out the initial letters, he resigned rather than followed the governor's office directives to send out more.
• Italy's "piracy shield" law lets the Italian telecom regulator, AGCOM, "designate certain IP addresses as 'piracy' and require all internet providers and VPNs to block access to those sites," explains Mike Masnick. It has now managed to block access to Google Drive.
• Under Ireland's new Online Safety Code, any tech platform deemed to be insufficiently stopping minors from seeing "harmful content" could face a fine of 20 million euros "or 10pc of a company's turnover, whichever is greater," notes the Irish Independent.
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