Enter to open, tab to navigate, enter to select
White House Post-Dobbs Order Calls for Greater Access to OTC and Emergency Contraceptives
Practical Law Legal Update w-039-8925 (Approx. 6 pages)
White House Post-Dobbs Order Calls for Greater Access to OTC and Emergency Contraceptives
by Practical Law Employee Benefits & Executive Compensation
| Published on 26 Jun 2023 • USA (National/Federal) |
The White House has issued a third executive order addressing the administration's efforts to promote access to reproductive health care in response to the Supreme Court's Dobbs ruling on abortion. The third executive order focuses on preserving and expanding access to contraceptives coverage without cost-sharing, including over-the-counter (OTC) and emergency contraception.
The White House has issued a third executive order addressing the administration's efforts to promote access to reproductive and other health care services (Executive Order (June 23, 2023); see related fact sheet). The administration's third order:
- Was issued in response to the Supreme Court's Dobbs decision, which overruled the federal constitutional right to abortion recognized in Roe v. Wade and Planned Parenthood v. Casey (Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022)).
- Expands on two executive orders addressing reproductive health care services issued last summer, shortly after the Dobbs ruling was issued (Executive Order 14076, 87 Fed. Reg. 42053 (July 8, 2022); Executive Order 14079, 87 Fed. Reg. 49505 (Aug. 3, 2022); see Legal Updates, White House Executive Order Addresses Post-Dobbs Access to Abortion and Contraceptives and White House Addresses Access to Reproductive Health Care, Including Abortion, in Second Post-Dobbs Executive Order).
For more information on the Dobbs ruling, see:
Recent Regulatory Developments Addressing Contraceptives Access
The administration's third executive order was issued in response to what the administration characterizes as the "devastating implications" of the Dobbs ruling for women's health. These implications include:
- The closing of health clinics that provide contraception and related health care services in states with restrictive access to abortion.
- The adoption in some states of policies that interfere with access to emergency contraception.
The administration's order reviews certain recent regulatory actions to promote access to contraceptives, including:
- Issuing guidance and convening sponsors of ERISA health plans and health insurers to clarify contraception coverage requirements under the Affordable Care Act (ACA).
- Promoting the inclusion of family planning providers in qualified health plan insurance networks on the ACA health exchanges.
In addition, in February 2023 the administration issued proposed regulations that would establish an individual contraceptive arrangement (ICA) option under which individuals who are enrolled in plans sponsored by objecting entities could obtain contraceptive services at no cost directly from a willing health provider or facility that provides contraceptive services. An ICA would be an independent pathway for participants and beneficiaries in insured or self-funded group health plans sponsored by an exempt entity (that does not invoke the optional accommodation) to obtain contraceptive services:
- At no cost to the recipient of the services through their own independent actions.
- Without the involvement of an objecting employer, group health plan, plan sponsor, or insurer.
(88 Fed. Reg. 7236 (Feb. 2, 2023); Prop. 29 C.F.R. § 2590.715-2713A(e); Prop. 26 C.F.R. § 54.9815-2713A(e); Prop. 45 C.F.R. § 147.131(d); see Legal Update, Post-Dobbs Proposals Would Expand Access to ACA Contraceptives.)
In April 2023, the administration's HHS also issued proposed regulations that would amend the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to support reproductive health care (88 Fed. Reg. 23506 (Apr. 17, 2023); see Article, HIPAA Proposed Regulations to Support Reproductive Health Care Privacy). HHS's proposed regulations would prohibit uses and disclosures of protected health information (PHI) for criminal, civil, or administrative investigations or proceedings against individuals and HIPAA covered entities or their business associates for seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided.
(For more information on HIPAA compliance, see HIPAA Privacy, Security, and Breach Notification Toolkit.)
Order Instructs Departments to Consider Contraceptives-Related Actions
The administration's third order directs the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (collectively, Departments) to consider providing additional guidance to expand access to contraceptives without cost-sharing under the ACA. In particular, the order instructs the Departments to consider actions that would:
- Ensure coverage of all Food and Drug Administration (FDA)-approved contraceptive methods without cost-sharing for covered plan participants and beneficiaries (see Practice Note, Contraceptives Coverage Under the ACA: Overview).
- Streamline the process for individuals and health providers to request coverage of medically necessary contraception, also without cost-sharing.
- Improve access to over-the-counter (OTC) contraceptives, including emergency contraception (see Practice Note, Contraceptives Coverage Under the ACA: Overview: Coverage of Over-the-Counter Emergency Contraception).
In addition, the order directs HHS to consider taking steps to expand:
- Access to affordable family planning services through Medicaid.
- Contraceptives coverage under Medicare, including Medicare Part D plans.
The administration's order also directs the DOL to identify best practices for providing quality and affordable contraceptives coverage under health plans and other private health insurance.
A section of the order addresses access to contraceptives under federal health care programs. The order directs the Departments of Defense and Veterans Affairs and Office of Personnel Management (OPM) to consider:
- Ensuring comprehensive contraceptives coverage under federal programs.
- Providing technical assistance and education.
Practical Impact
The administration's latest order regarding post-Dobbs reproductive health care access suggests that we should expect additional guidance from the administrative agencies regarding access to contraceptives in the coming months. The agencies also may prioritize efforts to finalize their rulemaking on HIPAA privacy and contraceptives, which were proposed earlier in the year. The administration is issuing its order against a backdrop of initial litigation victories by objecting employers and individuals regarding access to medication and ACA preventive health services. This litigation includes high-profile cases currently being appealed in the Fifth Circuit.
For more information, see: