The XX Factor

Even If the Affordable Care Act Is Repealed, Contraceptives Could Still Be Covered for Some

Photo Illustration by Kevork Djansezian/Getty Images

Progressives cheered on Aug. 1 when the U.S. Department of Health and Human Services made contraceptives free under the Patient Protection and Affordable Care Act. The same day, progressives booed as Congress voted in favor of a debt ceiling compromise, which requires $2.1 trillion in savings over the next decade and could result in severe spending cuts.

It seems unlikely that these two developments—free contraceptives and trillions in spending cuts—could coexist. Repeal of the Affordable Care Act was a legitimate threat before this debt ceiling compromise: A recent Rasmussen survey of likely voters showed 57 percent favor repeal, and 46 percent strongly favor repeal, of health reform. Rasmussen polls are considered biased by some, but toss in relentless Republican opposition to common-sense family-planning measures, and it is important to acknowledge the unhappy possibility that the Affordable Care Act may not be a reliable mandate for contraceptive coverage.

Suppose that the preventive-care provision is repealed. The silver lining of this scenario is that federal health reform is actually late to the contraceptive coverage party. Twenty-eight states already require insurance plans that cover contraceptives to cover the full range of FDA approved contraceptive drugs and devices—and many insurance plans include at least some contraceptives. These state laws range in their reach: For example, Arizona’s law is one of the most expansive, requiring coverage of contraceptives and outpatient drugs and devices, while Virginia’s law is limited to requiring that employers simply be offered the option of including coverage within their health plans.

A sticking point is that these state laws do not apply to self-insured plans—which do no good for the many women who are employed by businesses that self-insure. This is why a federal law is so crucial.

In addition to the state laws, several federal courts have ruled that it is discriminatory under Title VII of the Civil Rights Act for insurance plans to exclude contraceptives when they cover other preventive drugs or devices.

Indeed, the DHHS’ action on Monday could be viewed as the culmination of the past 15 years of advocacy for contraceptive coverage. Since the 1990s, reproductive-health advocates fought for insurance coverage of contraceptives through the states, the courts and even attempted federal legislation. Almost exactly 10 years ago, a bill called the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) aimed to federally mandate coverage of contraceptives. The Senate was briefed on EPICC the day before the September 11, 2001, World Trade Center attacks. EPICC fell by the wayside. So it goes.

DHHS’ decision is the boldest legal mandate for contraceptive coverage yet, as it covers everyone and eliminates out of pocket costs such as co-pays. Barring repeal, contraceptives could be free for women in the United States as early as August 2012. Still, the future feels murky, especially in light of looming spending cuts. If the ACA is repealed, the tactics of the past 15 years could remain essential for the future of contraceptive coverage. For now, protecting the Affordable Care Act’s preventive care measure is our charge.

Sheila Bapat is an attorney, consultant and writer based in San Francisco. She can be reached at Follow her on Twitter @sheilabapat.