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S. 4347 (117th): Affordability is Access Act

Should getting Plan B be EZ?

Context: the current rules

Millions of women a year find themselves needing access to emergency contraception, intended for use within 72 hours after sex if a woman does not want to get pregnant. The most prominent emergency contraception is Plan B.

It’s distinct from other forms of birth control — such as condoms, an IUD, or “the pill” — in that it’s available over the counter, but can be used after sex. It’s also not the same thing as a medication abortion, and in fact cannot cause abortion.

However, existing regulations that require health insurance to cover emergency contraception are hampered by so-called “conscience rules,” which allow employers (who typically provide the health insurance) to refuse to cover any type of contraception.

In 2011, the Barack Obama administration required health insurance companies to cover FDA-approved contraceptives. In 2017, though, the Donald Trump administration rolled back that rule. (They didn’t technically repeal it, but their new policies allowed such leeway in granting exemptions that it effectively nullified the rule anyway.)

2020’s Supreme Court decision Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania upheld the Trump administration by 7–2. Democratic-appointed justices Elena Kagan and Stephen Breyer joined the five more conservative justices.

Context: 2022 developments

This issue has taken on increased relevancy recently, as some Republican politicians and red states move to potentially restrict or ban contraception.

In May, Oklahoma enacted a law banning abortions from the point of “fertilization.” This could ban emergency contraception in the state by defining fertilization as the moment a sperm meets an egg, and Plan B can prevent such a fertilized egg from attaching to the womb.

Republican legislators in states such as Louisiana and Idaho have openly advocated for, or introduced, legislation that could restrict contraception. In a recent interview with CNN’s Jake Tapper, Mississippi Gov. Tate Reeves refused to rule out a statewide ban on contraception.

Matters could be further complicated if the Supreme Court overturns 1973’s decision Roe v. Wade in late June, which would return abortion policy entirely to the states.

While such a decision wouldn’t directly affect contraception, it would likely rely on legal reasoning finding that there’s no constitutional right to privacy. Indeed, the word “privacy” (or a similar word) does not appear in the actual text of the Constitution, though the Supreme Court has found for decades that such a right is implied, including in the original Roe decision.

That determination could in turn jeopardize 1965’s Griswold v. Connecticut and 1972’s Eisenstadt v. Baird, two decisions that jointly established the right to contraception based on that same right to privacy — for married and unmarried people, respectively.

What the legislation does

The Affordability is Access Act would require health insurance plans to cover any over-the-counter oral contraceptives approved by the FDA (Food and Drug Administration), such as Plan B, without cost-sharing or a required prescription.

The legislation would also require plans to cover oral birth control for available “routine, daily use” without a prescription.

Sponsors say that provision is to prepare for the possibility that the regular contraceptive “the pill” could become available over-the-counter without a prescription. Many Democratic politicians and progressive health advocates are pushing the Biden administration to allow that, though they haven’t done so yet. What is over-the-counter right now, and would therefore be covered by insurance immediately if this bill were enacted tomorrow, is Plan B.

The Senate version of the bill was introduced on May 26 as S. 4347, by Sen. Patty Murray (D-WA). The House version was introduced the next day on May 27 as H.R. 7894, by Rep. Ayanna Pressley (D-MA7).

What supporters say

Supporters argue the legislation would bolster women’s reproductive rights at a time when those rights are particularly at risk. They also argue that codifying such rights would better solidify access than executive branch regulations have.

“Women seeking contraceptive care shouldn’t find they have to pay extra, ask permission, or hurdle barriers put up by politicians who think their ideology is more important than a woman’s personal health care decisions,” Sen. Murray said in a press release. “While [Republicans] have been focused on putting up barriers and making it harder for women to get the care they need, I’m fighting to tear them down and pushing for steps like this legislation to make it easier for all women to access affordable birth control.”

“Bodily autonomy is a basic human right. Reproductive justice is not only a healthcare issue, it is also an economic issue and a civil rights issue, ” Rep. Pressley said in a press release. “[The legislation] removes expensive barriers to contraceptive care — affirming a person’s right to make decisions about their body, if and when to start a family, and their future.”

What opponents say

Opponents counter that birth control should be open to restrictions, or at least the possibility shouldn’t be off the table.

“They’ve called it preventative medicine. Preventative medicine,” former Rep. Steve King (R-IA4) said on the House floor. “Well, if you apply that preventative medicine universally, what you end up with is you’ve prevented a generation. Preventing babies from being born is not medicine.”

(Emergency contraception like Plan B does not in fact, “prevent a generation.” Contraception is used by about 88% of sexually active women who are not currently seeking pregnancy. However, the vast majority of U.S. women — about 86% — will also give birth at some point in their lives. So for most women, emergency contraception delays, rather than prevents, birth.)

Odds of passage

The House version has attracted 95 cosponsors, all Democrats. That represents substantially higher support than in the previous Congress, when the bill attracted 26 Democratic cosponsors and never received a committee vote.

The current version awaits a potential vote in the House Education and Labor, Energy and Commerce, or Ways and Means Committee.

The Senate version has attracted 34 cosponsors: 33 Democrats and one independent. It awaits a potential vote in the Senate Health, Education, Labor, and Pensions (HELP) Committee.

Last updated Jun 23, 2022. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Aug 29, 2022.

Affordability is Access Act

This bill establishes several requirements relating to health insurance coverage of, and access to, over-the-counter contraceptives.

Specifically, the bill requires the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury to specify that private health insurance plans must cover over-the-counter contraceptives that are approved by the Food and Drug Administration (FDA), even without a prescription. Under current law, private health insurance plans (with some exceptions) must cover FDA-approved prescription contraceptives, without cost-sharing requirements.

The bill also prohibits retailers from interfering with an individual's access to oral contraceptives that are meant for routine, daily use and are FDA-approved for use without a prescription.