(The Center Square) – A 22-governor coalition organized by California Governor Gavin Newsom is urging the federal government to pass regulations clarifying that non-prescription contraceptives, especially newly-approved over-the-counter birth control set to be available nationwide in the coming months, will be covered under all health insurance plans subject to the Affordable Care Act, Medicare, and Medicaid. First Amendment advocates say this move would undermine religious freedom for individuals and groups that do not wish to provide pharmaceutical birth control for their family members or employees on religious grounds.
“On July 13, 2023, the FDA approved the first over-the-counter (OTC) daily birth control pill, a development that could revolutionize access to contraception in the United States. This medication is expected to be released to the public shortly. Prior to that release, we urge you to take all necessary and available steps to ensure that this non-prescription OTC option will be covered without cost-sharing under private health insurance plans subject to Affordable Care Act (ACA) regulations, Medicare, and Medicaid,” wrote the Reproductive Freedom Alliance in their letter to Xavier Becerra, secretary of the U.S. Department of Health and Human Services and former senator representing California in the U.S. Senate.
The Reproductive Freedom Alliance, launched by Newsom earlier this year, is a coalition of 22 governors that “works to protect and expand reproductive freedom in states across the country.” This particular letter was signed by, in addition to Newsom, Pennsylvania governor Josh Shapiro, North Carolina governor Roy Cooper, New Mexico governor Michelle Grisham, Massachusetts governor Maura Healey, and Illinois governor JB Pritzker.
Meanwhile, religious freedom advocates say this move would be in violation of existing court rulings that have clearly defined the choice of whether or not to provide contraceptives as a matter of religious freedom.
“The First Amendment protects all Americans from coercion to violate their deeply held beliefs on life and sexuality. The Department of Health and Human Services is obligated to respect all civil rights laws against forced payment for non-prescription contraceptive medications. No health insurance bureaucrat – whether in federal or state government – is above the law,” said Maya Noronha, a lawyer for religious freedom legal foundation First Liberty Institute, to The Center Square.
When the Affordable Care Act was passed in 2010, it included a provision requiring employers to provide health insurance that covers all forms of contraception at no cost to the employee. While the Obama administration made exceptions for religious institutions, the question of whether or not corporations must adhere to the provision was clarified in 2014 when the U.S. Supreme Court ruled that closely-held corporations could be exempt from the mandate if their owners have sincere religious objections.
