Over-the-Counter Birth Control Bill Provokes Irrational Ire on the Left

Subsidized birth control pills for some women shouldn't come at the expense of easing access restrictions for all.


UC Irvine/Flickr

Making good on a campaign-season promise, Sen. Cory Gardner (R-Colorado) last week announced a bill to spur action on oral contraception being sold without a prescription. The "Allowing Greater Access to Safe and Effective Contraception Act," co-sponsored by Sen. Kelly Ayotte (R-NH), would encourage birth-control pill manufacturers to file an application with the Food and Drug Administration (FDA) to sell products over-the-counter (OTC), as well as repeal the Affordable Care Act's restriction on using health savings accounts to buy non-prescription medication. The full text of the proposal has not yet been released. 

That hasn't stopped some from flipping out about the bill, however. "This bill is a sham and an insult to women," said Planned Parenthood Action Fund President Cecile Richards in a statement. "It would give women fewer birth control options and force women to pay twice for their birth control."

Jezebel blogger Stassa Edwards admits that "allowing [the pill] to be sold OTC would be a sizeable step in" the direction of expanding access. But "it seems like Gardner and Ayotte's proposal is a sneaky way to effectively end Obamacare's mandatory contraception coverage," she warns. The American Congress of Obstetricians and Gynecologists (ACOG) has previously advocated for OTC oral contraception. But ACOG President Mark S. DeFrancesco cautioned against Gardner and Ayotte's bill, stating that "instead of improving access, this bill would actually make more women have to pay for their birth control, and for some women, the cost would be prohibitive. 

A few thoughts … 

1. Subsidized is not synonymous with accessible. To suggest that making birth control pills available for purchase in more places and with less restrictions is to "give women fewer birth control options" insults the English language. What Richards et al. mean, behind this dishonest rhetoric of decreased access, is that the bill could sabotage the controversial Obamacare contraception mandate that requires health insurers to cover the full-cost of contraception. 

2. But the contraception mandate isn't going anywhere anyway. At least not because of Gardner and Ayotte's proposal. The fact that one pill manufacturer applies for over-the-counter status wouldn't mean all birth control pill manufacturers would then have to be sold so; there could and likely would still be prescription-only oral contraceptives. Besides, myriad other birth control methods—from hormonal implants to the (much longer-acting and more effective than the pill) IUD—would still be prescription only, and hence still "free" under the contraception mandate. There's also no reason to think the contraception mandate couldn't be stretched to require coverage for over-the-counter birth control also. Regardless of how it plays out—or how you feel about the mandate sticking around—there's no reason to think this bill would negate it. 

3. Subsidized contraception for some women shouldn't come at the expense of increasing access for all women. Making the pill available over-the-counter was, until recently, a cherished feminist goal, and one with backing from public-health advocates (70 percent of Americans back it too, according to a 2014 Reason-Rupe poll). Standard oral contraceptives are quite safe, and many women remain on the same pill for years (or decades), making the requirement that they see a doctor for a yearly permission slip unnecessary, if not insulting. [A longer case for the safety and sense behind OTC birth control here.] The annual doctor's visit also impedes birth control access in a number of ways.

Doctors appointments require wait times, travel, time off work, and money. These things may pose little problem for most of us, but what about women with inflexible or erratic work schedules? An immediate need for contraception? A need to hide contraception use from a violent partner? A (real or imagined) reason to avoid doctors? No health insurance? Women in poverty and precarious circumstances—i.e., those most vulnerable to the negative effects of unplanned pregnancies—are also those we dissuade most from contraception use by requiring an annual gynecologist visit.

The Affordable Care Act notwithstanding, there will always be women in the U.S. without health insurance, be it temporarily or chronically. Women in the country illegally. Women between jobs. Women under the control of some sort of abuser. Women living on the streets. Those recently divorced. Those in in the midst of mental health issues or addiction. Women who can't afford the premiums. Women whose lives have, for whatever reason, temporarily fallen into poverty or crisis. The contraception mandate saves these women absolutely nothing. Worse, backing it to the utter exclusion of OTC contraception literally prevents the most vulnerable women, or women in their most vulnerable periods, from having reliable and consistent contraceptive access.

Keeping birth control behind the counter keeps it entirely out of reach for some women. Is saving the relatively priveleged among us $5-$40 a month really worth that? 

Worse yet, critics like Richards and Edwards are cool with keeping birth control restricted under the mere possibility that it might undermine the contraception mandate—though, once more, there's no reason why it has to. Gardner and Ayotte's bill, from what we know about it, would simply make the process for switching birth control brands from prescription to over-the-counter status easier (by waiving the FDA filing and allowing priority review) and, should a drugmaker go for it, let women buy this birth control with funds from a health, medical, or flexible savings account.

If anything, the bill may provide too little incentive for drugmakers to act. "Drug companies that make the pill have never applied for OTC status, and there's zero reason to think they will start now just for a minor fee waiver and a promise that their applications will be read promptly," wrote Amanda Marcotte at Slate.

But I'm more optimistic—surely, some drugmaker looking to make its pill stand out will see opportunity in an over-the-counter market, and after that it's only a matter of time before some others follow suit. Uber, but for birth control, as they say—i.e., innovation in a long stagnant and status quo maketplace. Even if Gardner and Ayotte's bill is tepid, can we at least give them credit for trying? It's more than any Democratic lawmakers have done to allow for OTC contraception. And despite the protests of partisans and people who profit from prescription-only pills, freeing birth control from this would do way more to expand access than lowering the already-low cost of contraception for insured women.