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Democrats push to ensure women get free birth control promised by ACA

Probe of insurers’ denials is opened amid concern about the future of abortion rights

A woman holds a packet of contraceptive pills. (Tsvangirayi Mukwazhi/AP)
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Senate Democrats launched a new push Tuesday to ensure that women can obtain the free birth control required by the Affordable Care Act, framing the policy as imperative if the Supreme Court should move to strike down abortion rights, as is widely expected after a draft ruling leaked Monday night.

Sens. Patty Murray (D-Wash.) and Ron Wyden (D-Ore.), who chair the health and finance panels respectively, said they were opening an investigation into complaints that health insurers are denying patients’ requests for birth control and forcing them to pay out of pocket.

“We are hearing from patients who are being asked to jump through ridiculous, crazy, unnecessary steps to get the birth control that works for them,” Murray said in an interview, stressing that access to birth control is a key pillar of reproductive health. “Those who want to take away your right to get an abortion are not going to stop there. … And we need to stand up and fight back with everything we’ve got.”

Under federal law, insurers must cover contraception without requiring co-pays, a policy that the National Women’s Law Center in November 2020 estimated applied to 64 million women, although some religious organizations and other employers have used exemptions to opt out. However, the NWLC and other advocates have faulted federal and state agencies for not aggressively enforcing the provisions, spotlighting examples of insured patients being denied coverage. The Biden administration in January chastised insurers after receiving “complaints and public reports of potential violations of the contraceptive coverage requirement.”

The issue has taken on even greater significance amid the release of a leaked draft Supreme Court decision that would overturn the constitutional right to an abortion, which has underscored the need to access birth control to avoid unplanned pregnancies.

“This is all connected, right? People don’t really live single-issue lives, and they experience their reproductive health as a life course,” said Raegan McDonald-Mosley, an OB/GYN who leads Power to Decide, an advocacy group focused on preventing unplanned pregnancies. “It’s a continuum, and I think it’s very unsettling … that there have been some moments where legislators have intimated that birth control is next.”

Murray, Wyden and Sens. Robert P. Casey Jr. (D-Pa.) and Maggie Hassan (D-N.H.) sent letters Monday to OptumRx, CVS Caremark and Express Scripts — which collectively help insurance companies oversee pharmacy benefits for tens of millions of Americans — demanding the companies turn over information on their birth control coverage policies, what percentage of patients’ requests had been denied and related data within the next two weeks. The letters were shared with The Washington Post.

Spokespeople for OptumRx, CVS Caremark and Express Scripts said they were reviewing the senators’ request.

“UnitedHealth Group is committed to ensuring the people we serve have timely access to a variety of high-value and affordable FDA-approved contraceptives,” said Drew Krejci, an Optum spokesperson. “Consistent with the ACA, OptumRx’s offerings include cost-free options in every category of contraceptive, and we will work directly with Senate offices to address their request.”

Murray said the investigation, which builds on lawmakers’ earlier warnings, was intended to put pressure on federal officials to step up enforcement.

“We need really comprehensive guidance for insurers, from [the Department of Health and Human Services], to just make it really clear to these folks that they cannot skirt the law. They need to provide access to birth control,” she said. “Period.”

Advocates cited birth-control policies by at least a dozen insurers and pharmacy benefit managers that they said appeared to flout the law. Power to Decide reviewed 48 denial letters and conducted a secret-shopper phone survey, finding examples of rejected requests that they said ignored physicians’ recommendations, failed to offer sufficient information and committed other violations of the standards required under the ACA.

“When you look at those publicly available plan documents, when you look at what is sent to consumers, in denial letters, and when you look at these secret shopper calls to customer service hotlines, I think it shows what we’ve all found to be true in our lives — which is it’s very difficult to navigate the health insurance system to coverage that you need,” said Rachel Fey, who helped oversee Power to Decide’s report, which was shared with The Post. Power to Decide officials disclosed the group had received funding from pharmaceutical companies that make contraceptives.

Democrats’ push to ensure access to no-cost contraception was planned before a Politico report Monday night that the Supreme Court privately voted to overturn Roe v. Wade, the nearly 50-year-old court decision that made abortion a constitutionally protected right, and to uphold Mississippi’s abortion law prohibiting abortions after 15 weeks. Chief Justice John G. Roberts Jr. on Tuesday confirmed the authenticity of the draft, while cautioning that the justices’ positions and the leaked opinion by Justice Samuel A. Alito Jr. was not final. But lawmakers and advocates drew connections between the fate of Roe and a range of reproductive health-care services, warning of a potential domino effect.

“The Republican Party has set the stage for a total erosion of Americans’ constitutional rights,” Wyden said in a statement. “They have made clear they won’t stop at gutting the right for a woman to make decisions about her own body.”

Some conservatives have argued that the federal government is wrong to tell employers what health benefits they must cover, fighting for years against the ACA provisions on birth control products. The Susan B. Anthony List, an antiabortion group, repeatedly called on Trump administration officials to narrow the law, characterizing it as an “abortion drug mandate.”

Sen. Marsha Blackburn (R-Tenn.) and other Republicans have also criticized a 1965 ruling that upheld married couples’ legal right to birth control, Griswold v. Connecticut. Alito’s leaked opinion also includes arguments that could lead to ultimately overturning that decision, experts argued.

Roe largely relied on Griswold v. Connecticut, which established a right to privacy to use contraception by drawing together different provisions and cases that, in one form or another, protected some sphere of privacy or liberty,” Boston University law professor Robert Tsai wrote in Politico Magazine on Tuesday. “The same accusation Alito levels against Roe can also be made about Griswold.

Democrats also predicted that the high court’s likely ruling on Mississippi’s abortion law and other challenges to reproductive rights would emerge as a rallying cry before November’s midterm elections, where the party is projected to lose control of one or both chambers of Congress. Majorities of Americans believe that most employers, with the exception of houses of worship, should be required to provide health insurance that covers contraception for employees, even if it violates their religious beliefs, according to a 2021 Public Religion Research Institute survey.

“I think women’s rights and women’s capability to make their own health-care decisions about planning their own families is absolutely going to be on the ballot in November,” Murray said.

The leaked Supreme Court ruling “should be galvanizing for the electorate,” added Debra Curtis, a former Democratic staffer who helped craft the ACA legislation and is now a vice president at McDermott+Consulting, a policy consulting firm. “This is certainly a call. If women do not hear this call, then definitely times have changed.”

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