Over-the-counter access to oral contraception: reproductive autonomy on pharmacy shelves or a political Trojan horse?

Author:Mac Dougall, Sarah
 
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Abstract

During the fall of 2014, in what seemed like a change of heart, Republican congressional candidates began calling for a policy that reproductive rights advocates have supported for years. Over-the-counter ("OTC") oral contraception ("OC") became these candidates ' way to connect with the women alienated by the Republican Party in recent elections. They emphasized how OTC access would allow women themselves, not employers or the government, to have control over contraceptive decisions. Liberals responded that this new effort was just a Trojan horse--legalizing OTC access would not only increase the actual price tag on OC, but it would also remove OC from the Patient Protection and Affordable Care Act's extended insurance coverage of contraception. Additionally, reproductive rights advocates noted that it is the Food and Drug Administration ("FDA "), not Congress, that legalizes OTC drugs, and the FDA has not received any applications from drug manufacturers who want to sell OC OTC.

In reality, both sides have something of a valid argument. OTC OC would be an important step toward reproductive autonomy for American women. It is also correct, however, that an immediate liberalization of OTC presents several issues, economically, politically, and culturally. Despite these valid critiques, OTC access for OC is a change that is worth the time and effort to move past politics and get it right, for many reasons. Requiring insurance companies and Medicaid to reimburse women for OTC OC purchases is a step toward establishing an accessible market and ensuring corresponding reproductive autonomy for women in the United States, which should accompany legalization of OTC OC.

INTRODUCTION

In 2014, Americans spent a lot of time, energy, and money arguing about oral contraception ("OC" or "birth control pills")--specifically, who should pay for it. Yet, the public debate surrounding whether employer-sponsored insurance plans should cover OC was mostly unproductive as far as advancing women's reproductive autonomy is concerned. That is because the current United States prescription-only access system for birth control pills fails to serve the needs of the women who stand to gain the most from access to OC. The employer mandate debate only took us further away from realizing a system that would promote access for all women--that is, legalizing an over-the-counter ("OTC") Food and Drug Administration ("FDA") designation for OC instead of limiting it to prescription-only status.

Despite the seemingly groundbreaking contraceptive mandate in the Patient Protection and Affordable Care Act of 2010 ("ACA"), which transferred responsibility for the monetary cost of OC from women to their insurance companies, (1) all women's access to OC did not improve, nor was the controversy surrounding it reduced. The ACA's provision that insurers have to now pay for OC was intensely contentious among the American public, and the Supreme Court ruled in 2014 that employers with a religious objection to contraception do not have to comply with the ACA's employer mandate. (2) This controversy took attention away from the fact that, notwithstanding the obvious benefits of reducing the price of reproductive planning for women with employer insurance plans, the contraceptive mandate fails to help large segments of women, some of whom stand to benefit most from increased access to OC--specifically women who are unemployed, work part time, are undocumented, or are still on their parents' health insurance (3)--and fails to address the problematic nonmonetary costs of the prescription access system. OTC access would address these issues. With the approval of the American College of Obstetricians and Gynecologists, (4) OTC access is a safe proposal from a public health perspective and one that women want. (5)

This Note argues that legalizing OTC access is safe, desirable, and furthers women's autonomy over reproductive decisions. It also cautions that certain economic, political, and cultural issues might impede immediate implementation. In Part I, I analyze which categories of women benefit from access to OC and how they benefit. I look at the empirically demonstrated advantages of OC and reasons women give for seeking to use OC. I also examine the effect of cost (both the monetary and the nonmonetary costs associated with prescription access) on OC usage. Part II addresses the ways in which the ACA falls short of fully ensuring access to oral contraceptives and protecting reproductive autonomy. It analyzes how the ACA's contraceptive benefits do not extend fully to multiply-marginalized (6) women and how continued reliance on employer-sponsored health plans impairs overall ability to obtain OC. Part III details how OTC access would address these deficiencies and promote access. These reasons include women's own preference for OTC access, the medical safety of OTC access, the successful examples of OTC emergency contraception in the United States and OTC OC in other countries, and OTC's protection of autonomous reproductive decisions. Part IV examines the economic, political, and cultural reasons why immediate implementation could be problematic, even though OTC is a good idea overall. In particular, a dual OTC and prescription system could skew an OTC market for OC, if insurers fear losing their market power with drug companies and continue requiring prescriptions for OC coverage. I then propose ways the United States could overcome these obstacles. Specifically, I suggest that the FDA should approve any citizen petition it receives requesting OTC status for OC, and, concurrently, the Department of Health and Human Services ("HHS") should update their regulations to require insurers and Medicaid to reimburse women for OTC OC purchases. This change would, in effect, create an incentive for insurance companies and the federal government to have a stake in the competitiveness of the OTC OC market.

  1. Who Benefits From Access to Oral Contraception and How So?

    OC was approved for sale in the United States on May 11, I960. (7) Since then, millions of American women have relied on it to prevent pregnancy, among other uses like controlling menstruation or acne treatment. While OC generally provides more control over reproductive decisions for women, that ability itself produces spillover benefits too that affect individual women in varying ways. Women cite a wide range of reasons for utilizing contraception, and they derive many distinct benefits from it. (8) This is partially due to the intersection of factors that affect women's access to, usage of, and benefits derived from OC. Cost, in particular, does not affect women's usage of OC uniformly. (9) Understanding these differences is important for analyzing how a particular access system either promotes or impairs women's usage.

    1. What are the Benefits of Oral Contraception?

    When first introduced in 1960, OC was the first contraceptive to afford women themselves full control over reproductive decisions. OC's main benefits flow from the basic improvement of allowing women to better plan whether and when they want to be pregnant. (10) The choice over this fundamental reproductive decision allowed, and continues to allow, women to have more control over their careers, as well as their personal lives.

    Economic studies have explored what kinds of benefits are associated with women's increased ability to plan their pregnancies. The liberalization of OC in the late 1960s and early 1970s helped isolate the link between increasing access to OC and multiple important economic indicators of an individual's well-being. Martha Bailey, a labor economist at the University of Michigan, has conducted a series of studies (11) using states' legalization of access to OC for eighteen- to twenty-one-year-olds as an exogenous policy change to separate the empirical consequences of increased oral contraceptive access from other developments during this time period. (12) Her studies have found that women's access to OC increased their labor force participation, wages, and family incomes, as well as their children's ability to complete college decades later. (13) She also linked increased determination of when to have children with positive impacts on quality-of-life indicators, including educational attainment, economic stability, lasting union formation, and mental health and happiness. (14)

    More broadly, the ability to plan whether and when to be pregnant leads to its own positive spillover effects. This control has increased both the proportion and the number of women in professional degree programs. (15) Women with high educational achievement are then able to benefit financially by delaying childbirth, as they can complete more schooling and concentrate on advancing their careers. (16) The increased ability to plan when to have children also leads to stronger relationships, (17) less anxiety and depression, and higher happiness levels for parents. (18) The use of birth control pills can also allow women to form more stable partnerships; OC reduces the effect of unexpected pregnancies on women's decision to marry, meaning that the partnerships formed by women utilizing OC can be made later on in life and so can be more considered. (19)

    1. Who Benefits Most from Oral Contraception?

      As for who benefits most from oral contraception, studies that have been done to date have not adequately broken down the data. Nearly all of the studies in this area have focused on either the averages of large samples or specific subgroups for methodological reasons, which is not helpful in assessing OC's long-term impact for certain demographic groups. (20) While there has been considerable work completed examining the correlation between increased control over the timing of one's pregnancy and other quality-of-life factors, there has been little study of how this increased control affects women who are marginalized or...

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