On Wednesday, Sen. Ted Cruz made common cause with his new pal, Rep. Alexandria Ocasio-Cortez. In response to a 5-day-old tweet in which Ocasio-Cortez called for oral contraception to be made available without a prescription, Cruz wrote, “I agree,” suggesting the two legislators “team up” on a bill that would help make it happen.
While Cruz’s support for over-the-counter contraception may seem surprising, it’s not uncommon among contemporary conservatives. Several Republicans, including Sen.
Cory Gardner, Sen. Joni Ernst, former Rep. Barbara Comstock, and former Louisiana Gov. Bobby Jindal, have pushed to make birth control pills available without a prescription. In 2017, Ernst introduced a bill that would have offered incentives to drug manufacturers that asked the Food and Drug Administration to reclassify their contraceptives from prescription to over the counter, arguing that “women wear many hats in their increasingly busy, daily lives” so “they should have the ability to access routine use contraception directly from their local pharmacy.” Donald Trump made the same case in an interview with Dr. Oz during his 2016 presidential campaign, in which he held that women should have access to oral contraceptives even if they “aren’t in a position to go get a prescription.”
What’s going on here? One important clue is that few, if any, of the conservatives now rallying behind over-the-counter birth control were ringing this bell prior to the 2010 passage of the Affordable Care Act. The ACA, which required insurance companies to fully cover a suite of preventive services and medications, essentially made contraception free for all insured Americans. Given that reality, placing birth control in the hands of the free market suddenly looked like a reasonable goal for both small-government conservatives and members of the religious right who didn’t want pharmacists giving away no-cost sex pills. Over-the-counter birth control would also ease one of the GOP’s biggest ACA-related bugbears: the fact that some employers with personal or religious objections to birth control still have to cover it in their employees’ health insurance plans.
Meanwhile, the ACA’s no-cost contraception provision has made over-the-counter birth control a complicated issue for Democrats who’d usually jump at the chance to remove barriers between women and their health care—especially when those barriers (trips to the doctor’s office, late prescription refills) could lead to missed pills and unplanned pregnancies. If oral contraception became available over the counter, it would be easier for people to pick it up whenever they need it, but insured women who currently get their meds for free would have to start paying out of pocket again. Recognizing this possible pitfall, Ocasio-Cortez tweeted an addendum 20 minutes after her original over-the-counter birth control tweet, saying, “It should be free, too—like in the UK!”
Some jurisdictions have instituted policies that attempt to make contraception both free and easily available. In 12 states and D.C., pharmacists can provide on-the-spot prescriptions for contraception, making it nearly as simple to pick up birth control at a drugstore as it is to acquire an over-the-counter medication, but with full insurance coverage intact. A few other locales require insurance companies to cover birth control that’s already available over the counter, such as emergency contraception. Under the current ACA, these laws—not a total switch to over-the-counter contraception—strike the best balance between affordability and accessibility.
Given the priorities of Cruz and his allies, they’re unlikely to sign on to such smart gap-filling measures. But by making this bipartisan overture, Cruz will try to make it seem like Democrats are the ones standing in the way of a common-sense push for birth control access. In reality, it’s Cruz who’s being disingenuous and who’s looking for a way to deny women what they’re entitled to under the law.
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