Published December 27, 2024
On December 27, 2024, EPPC Scholars Eric Kniffin, Natalie Dodson, and Jamie Bryan Hall submitted a public comment opposing a proposed rule, “Enhancing Coverage of Preventive Services Under the Affordable Care Act,” that would require health plans to provide free coverage of all over-the-counter contraceptives without a prescription.
The proposed rule by the U.S. Departments of Health and Human Services, Treasury, and Labor would expand the existing contraception mandate that the same departments have maintained since 2011. For more than a decade, the departments have required health plans to provide women with cost-free access to contraceptive drugs or devices that are typically covered by health benefits. The Departments’ proposal would also require health plans to give covered individuals unlimited free access to condoms, emergency contraceptives, and a new oral contraceptive, Opill, that the FDA approved for delivery over-the-counter in 2023.
The EPPC scholars argued in their comment:
This is not the first time that EPPC scholars have objected to the Department’s contraception mandate. We renew our general objection to the Departments’ mandate, including many arguments we made in April 2023. Congress did not authorize the Departments to create a contraception mandate. The mandate is and has always been an abuse of the limited authority that Congress delegated to HRSA under the Women’s Health Amendment to the Affordable Care Act.
This comment also focuses on one particular aspect of the proposed rule, the Departments’ attempt to expand the contraception mandate even further by requiring covered entities to provide free coverage to any over-the-counter (OTC) contraceptives without a doctor’s visit. This requirement, particularly as it relates to any hormonal contraceptives that the FDA makes available OTC, creates significant new risks for women’s health, new practical problems, new religious liberty issues, and new legal questions that the proposed rule does not adequately account for.
The comment stressed that it would be illegal and bad policy for the Departments to try to make hormonal contraceptives available even to pre-teen girls without parental consent and without any conversations with a health care professional. The scholars urged the Departments to abandon and withdraw the proposed rule.
Other organizations submitting comments on the proposed rule include:
- American Association of Prolife Obstetricians and Gynecologists
- Catholic Medical Association, National Catholic Bioethics Center, & National Association of Catholic Nurses USA
- Ethics & Religious Liberty Commission
- United States Conference of Catholic Bishops
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s Administrative State Accountability Project.
