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A Project of The Annenberg Public Policy Center

Colorado’s Contraception Controversy

Both sides in the Colorado Senate race are misleading voters in TV ads on Republican Rep. Cory Gardner’s proposal to allow the sale of birth control pills over-the-counter.

  • Gardner says in a TV ad that he has a plan to sell oral contraceptives, or the pill, over-the-counter without a prescription. But Congress has nothing to do with the process for making drugs available over-the-counter. That’s done by the Food and Drug Administration if petitioned by the drug manufacturer.
  • Gardner’s ad also says his over-the-counter plan would be “cheaper and easier, for you” than Democratic Sen. Mark Udall’s plan. But the Affordable Care Act — which Udall voted for and which Gardner voted to repeal — already requires insurance companies to fully cover birth control costs, including the pill. It’s also unclear whether birth control pills would be cheaper if they were available over-the-counter.
  • A Planned Parenthood Votes ad claims that Gardner wants to “take away” insurance coverage for birth control pills and have “women pay for all of it.” Yes, he supports the repeal of the Affordable Care Act, and, absent any replacement bill, insurers may well revert to covering some – but not necessarily all – of the cost. But Gardner hasn’t called for a ban on insurance coverage of the pill.

Gardner’s Plan

Gardner’s TV ad begins with the candidate saying, “What’s the difference between me and Mark Udall on contraception?” There are differences between the candidates on birth control, but the political claims from both sides leave voters in the position of having to hunt for them.

Mainly, Gardner wants to repeal the Affordable Care Act, and Udall doesn’t. Repealing the law would make a range of birth control more expensive for women with private insurance, but Gardner doesn’t mention that in his ad. Instead, Gardner says in the ad that his plan would make the pill “cheaper and easier, for you.”

The Affordable Care Act requires most private insurance plans to cover the pill, and other methods of female contraception, including sterilization, IUDs, sponges and spermicides, with no cost-sharing. There is an exemption for nonprofit religious employers, and the Supreme Court ruled in late June in the Hobby Lobby case that for-profit, closely-held companies couldn’t be required to pay for contraception coverage because of a federal religious freedom law. Hobby Lobby and another company, Conestoga Wood Specialties, objected to covering IUDs and emergency contraception on religious grounds.

Gardner praised the Hobby Lobby ruling in a statement and called for the FDA to “move quickly to make oral contraceptives available to adults without a prescription.” In July, Udall co-sponsored a Senate bill to prohibit employers from not covering contraception, but the measure failed.

Birth control has emerged as a key issue in the race. Gardner had first proclaimed his support for over-the-counter birth control pills in a June 19 op-ed published in the Denver Post.

It came after Udall had aired numerous ads criticizing Gardner’s past support for state personhood initiatives, which are anti-abortion measures that could lead to some hormonal forms of birth control, including the pill, being outlawed. Gardner withdrew his support for the latest state initiative this year, but still supports a similar federal bill. (See our Aug. 15 article “A Fight Over Birth Control in Colorado” for more on this issue.)

Gardner’s June op-ed called for birth control pills to be sold over-the-counter without a prescription and touted the convenience and potential cost savings of the idea. He wrote: “Since it makes so much sense, you might wonder why this change has not happened yet. It’s because too many people in Washington would rather play politics with contraception instead of actually making life easier for women.”

But an act of Congress couldn’t move the pill to over-the-counter status. In fact, what Gardner — and other Republican Senate candidates, including Thom Tillis in North Carolina and Ed Gillespie in Virginia — is suggesting wouldn’t happen quickly or easily. A drug manufacturer would submit an application to the FDA, and the FDA would then have to review and approve it. “This is a decision-making process that’s driven by the FDA, it’s not driven by Congress,” Sneha Barot, senior public policy associate at the Guttmacher Institute, told us in an interview. “It can be a fairly long and expensive process.”

Plus, if the FDA were to approve one brand of the pill, there are dozens more that would need to go through the same process to make all oral contraceptives over-the-counter. A Senate bill introduced by Republican Sen. Kelly Ayotte in July included a “sense of the Senate,” basically a suggestion, that the FDA “should study whether contraceptives that are available with a prescription … would be safe and effective for adults if available without a prescription.”

Making the pill OTC isn’t a new idea, either. The OCs OTC Working Group — that’s oral contraceptive (OC) and over-the counter (OTC) — was established in 2004 to explore the issue. It’s made up of reproductive health and advocacy groups, researchers and clinicians. The Guttmacher Institute, which researches reproductive health issues, is part of it.

However, let’s set aside the logistics and look at the claims about what would happen if oral contraceptives were available over-the-counter. Gardner says in his TV ad, “I believe the pill ought to be available over the counter, round the clock, without a prescription — cheaper and easier, for you.” His campaign says he also wants to “allow for women to be reimbursed for it through their insurance.”

It’s unclear whether birth control pills would be cheaper if they were available over-the-counter. The available research is mixed, and it’s not specifically about the pill.

A 2012 study funded by the Consumer Healthcare Products Association, a trade group for manufacturers of over-the-counter drugs, said there were savings from having common ailment drugs over-the-counter — including allergy, cough/cold and anti-fungal medications — and that most of the savings came from not needing an office visit to get a prescription. But the study, which looked at drugs that were already available OTC, cautioned that its findings were limited to the medications it analyzed. The OCs OTC Working Group cites two conflicting studies: A 2002 study published in the journal Drug Benefit Trends that found out-of-pocket costs for consumers went up when certain drugs moved from prescription to OTC status, and research from 2005 that found out-of-pocket costs decreased for antihistamines and gastritis medication.

“It’s very unclear what would happen to the price of an oral contraceptive if it went over the counter,” said Barot, who told us the cost of emergency contraception — which is essentially a high dose of the birth control pill — went up a bit when it became available without a prescription.

Barot co-wrote a blog post for the journal Health Affairs on Sept. 10 in support of OTC contraceptives paired with the ACA’s requirement for private insurance to fully cover all methods of birth control for women without cost-sharing. A July 30 opinion piece, written by members of Ibis Reproductive Heath, a research and advocacy group that coordinates the OTC working group, and published in The Hill newspaper also argued that: “For an over-the-counter pill to have the most positive impact on access to contraception, it must be covered by insurance.”

So would the pill be “cheaper” over-the-counter? Not for women with most private insurance coverage, who get full coverage of the pill and also get a fully covered annual “well-woman” office visit during which time they can get a prescription. Both benefits are mandated by the Affordable Care Act. Those without insurance coverage could save money, since they won’t have to go to a doctor for a prescription. And even those with insurance may feel the convenience saves them money in terms of not having to miss work or arrange child care to go to a doctor. “The impact would be different depending on the group of women we’re talking about,” Barot says.

As for getting the pill over-the-counter being “easier,” that, too, depends on the person. Women without insurance wouldn’t have to get a prescription, but if the cost were covered through a reimbursement system, as Gardner proposes, they’d have to spend time taking whatever steps were required to get their money back. Women in rural areas, as Gardner points out in his op-ed, may drive long distances to see a doctor and would likely find an OTC option easier.

Gardner further claims in his ad that Udall “wants to keep government bureaucrats between you and your health care plan.” It’s true that the ACA places new requirements on insurance companies — such as covering contraception without cost-sharing. But if Gardner’s plan occurred in conjunction with the ACA, that would still be the case. In fact, in his op-ed, he proposed changing the ACA to allow insurers to cover OTC drugs obtained without a prescription.

And some federal regulation might have to be enacted for Medicaid. The OCs OTC Working Group says it’s “unclear” how Medicaid recipients would be affected, since federal Medicaid funds can’t pay for over-the-counter drugs obtained without a prescription, though some states do cover OTC emergency contraception.

There are missing details to Gardner’s proposal, which, as we mentioned, would have to start with drug manufacturers and the FDA, not Congress. With or without the ACA, he’s still advocating insurance coverage of OTC oral contraceptives, which would presumably require some government regulation. We asked his campaign whether he would require insurers to fully cover birth control pills purchased over-the-counter if the ACA were repealed, or would he allow insurers to make decisions about the level of coverage, as they did before the health care law was passed. We did not receive a response to that question.

 Would Gardner ‘Take Away’ Insurance Coverage?

Planned Parenthood Votes jumped into the debate with an ad launched Sept. 12 that says on screen, “Gardner’s over-the-counter proposal would TAKE AWAY insurance coverage for birth control,” with a drawing of a pack of birth control pills. Another on-screen graphic reads, “Gardner’s plan: Women pay for all of it.”

Similarly, the Udall campaign has criticized Gardner’s OTC proposal by saying on its website that he had a “radical position on ending insurance coverage for the pill.” Another posting on the campaign website says Gardner “has said that we should remove insurance from the process of purchasing birth control altogether.”

As we’ve said, Gardner’s campaign says he wants to allow women to be reimbursed for OTC oral contraceptives. His campaign spokesman Alex Siciliano told us that Gardner’s plan is different from many other over-the-counter proposals in this regard. “Cory understands the problem associated with potential out-of-pocket cost increases if insurance coverage is lost,” he wrote in an email. “That’s why Cory has called for a change to Obamacare that will permit the coverage of OTC medication like oral contraceptives without a prescription.”

Gardner’s original June op-ed on the idea didn’t fully explain the insurance-reimbursement proposal, but did allude to insurance coverage for OTC oral contraceptives. He wrote in that piece: “Since January 2011, an obscure provision of Obamacare has blocked insurers from covering OTC medicine without a prescription. If Democrats are serious about making oral contraception affordable and accessible, we can reverse that technical provision.”

The provision bars reimbursement from a Flexible Spending Arrangement or Health Savings Account for over-the-counter medications obtained without a prescription (excluding insulin and medical devices). The ACA does require private insurance plans to cover over-the-counter contraceptives including sponges and spermicides, but only with a doctor’s prescription.

Gardner’s camp hasn’t provided more specific details on how his plan would work in terms of insurance reimbursement. But that’s still no reason for Udall and Planned Parenthood Votes to misrepresent his over-the-counter proposal.

When we asked Planned Parenthood Votes about its ad, a spokeswoman told us that Gardner’s plan was to repeal the ACA and its full coverage of a range of birth control methods, plus a “vague” over-the-counter proposal for the pill. And since it would take years before any brand of birth control pill was available over-the-counter, women would go back to paying out-of-pocket for contraception in the absence of the ACA, she said.

Fair enough — but that’s not what the ad says. Instead, it says Gardner wants to “take away” insurance coverage and have “women pay for all of it,” and it specifically references the pill. Gardner hasn’t called for any kind of ban on insurance coverage of the pill, or birth control in general. If the ACA were repealed, insurers may well revert to life before the health care law, when many private plans covered some of the cost of prescription contraceptives, according to a 2002 Guttmacher Institute survey of insurers’ on employment-based plans. (In fact, more than half of the states, including Colorado, require insurance plans that include prescription drug coverage to cover contraception. Colorado passed its contraception law in 2010. Gardner voted against it.)

The Udall camp points to a brief interview Gardner gave to Fox News in July, when he said “let’s take out the insurance” in regards to his OTC plan. The full quote: “I support a birth control policy that will allow us to have common forms of oral contraception available over-the-counter without a prescription. Let’s take out Obamacare. Let’s take out the insurance.”

We’re not sure what Gardner meant by that, but it contradicts what his campaign has said since then.

Planned Parenthood Votes and the Udall campaign would be correct to say that Gardner wants to repeal the ACA, and with it the law’s requirement of full private insurance coverage of women’s contraception. But both twist Gardner’s position into something more extreme. Gardner, meanwhile, tries to sell voters on a plan he himself — or Congress — can’t implement. And he glosses over his support for repealing the ACA, a move that, absent additional health care legislation, would increase the cost of a range of birth control methods for many women with private insurance plans.

— Lori Robertson