Affordability is Access Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1698 To require group health plans and group or individual health insurance coverage to provide coverage for over-the-counter contraceptives. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mrs. MURRAY (for herself, Ms. HIRONO, Ms. CORTEZ MASTO, Mr. BLUMENTHAL, Mrs. SHAHEEN, Mr. REED, Mr. SCHATZ, Mr. PADILLA, Mr. MERKLEY, Ms. WARREN, Mr. CARPER, Ms. BALDWIN, Mr. MURPHY, Mr. SANDERS, Ms. CANTWELL, Ms. STABENOW, Ms. DUCKWORTH, Mr. WHITEHOUSE, Mr. WELCH, Ms. SMITH, Mr. FETTERMAN, Mr. MENEN- DEZ, Mr. BENNET, Ms. HASSAN, Mr. BOOKER, Mr. KAINE, Mr. HEIN- RICH, Mr. VAN HOLLEN, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To require group health plans and group or individual health insurance coverage to provide coverage for over-the- counter contraceptives. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Affordability is Access 4 Act of 2023’’. 5 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1698 IS SEC. 2. PURPOSE. 1 The purpose of this Act is to ensure timely access 2 to affordable birth control by requiring coverage without 3 cost-sharing for contraceptives that are approved, granted, 4 or cleared by, or otherwise legally marketed under regula- 5 tion by, the Food and Drug Administration for use with- 6 out a prescription. 7 SEC. 3. FINDINGS. 8 The Senate finds the following: 9 (1) Birth control is critical health care that al- 10 most all women, as well as many trans men and 11 nonbinary people, will use at some point in their life- 12 times. 13 (2) Access to the full range of reproductive 14 health care, including birth control coverage as guar- 15 anteed under Federal law, provides individuals with 16 the opportunity to lead healthy lives and get the care 17 they need to reach their goals. 18 (3) Contraceptive access is associated with 19 health benefits for women, newborns, families, and 20 communities and can lower the risk of harm to ma- 21 ternal and infant health. 22 (4) An estimated 73 million women of reproduc- 23 tive age (ages 15 through 49) live in the United 24 States. Among the 46 million of such women who 25 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1698 IS are sexually active and not seeking children, 89 per- 1 cent use a form of birth control. 2 (5) The birth control benefit enacted under the 3 Patient Protection and Affordable Care Act (Public 4 Law 111–148) has been a crucial step forward in 5 advancing access to birth control and has helped en- 6 sure 58 million women have the power to decide for 7 themselves if and when to become pregnant. 8 (6) Despite legal requirements for birth control 9 coverage and access to services, gaps remain for mil- 10 lions of individuals. Nearly 1 in 5 women are not 11 using their preferred method of contraception, and 12 of those women, a quarter say it is because of cost. 13 As a result, many women have gone without the 14 birth control they want to use, also creating incon- 15 sistent use. Access to birth control is particularly 16 difficult for the 19 million women of reproductive 17 age with lower incomes who live in contraceptive 18 deserts and lack reasonable access to a health center 19 that offers the full range of contraceptive methods. 20 (7) Due to systemic discrimination, people paid 21 low wages, people of color, LGBTQ+ individuals, 22 immigrants, and people with disabilities are more 23 likely to face barriers to, and lack access to, health 24 coverage and health care providers. 25 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1698 IS (8) There are numerous social and economic 1 factors that make it harder to access birth control, 2 including rising income and wealth inequality, gaps 3 in insurance coverage, and barriers to accessing 4 health providers. 5 (9) Leading health experts support over-the- 6 counter birth control pills. 7 SEC. 4. SENSE OF THE SENATE. 8 It is the sense of the Senate that— 9 (1) in order to increase access to oral birth con- 10 trol, such birth control must be both easier to obtain 11 and affordable and, to make such birth control ei- 12 ther easier to obtain or more affordable, but not 13 both, is to leave unacceptable barriers in place; 14 (2) it is imperative that the entities that re- 15 search and develop oral birth control and whose 16 medical and scientific experts have developed clinical 17 and other evidence that oral birth control for rou- 18 tine, daily use is safe and effective when sold with- 19 out a prescription, apply to the Food and Drug Ad- 20 ministration for review and approval for sale of such 21 birth control without a prescription; 22 (3) upon the receipt of such an application, the 23 Food and Drug Administration should determine 24 whether the oral birth control meets the rigorous 25 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1698 IS safety, efficacy, and quality standards for over-the- 1 counter use under the Federal Food, Drug, and Cos- 2 metic Act (21 U.S.C. 301 et seq.), and if the prod- 3 uct meets those standards, the Food and Drug Ad- 4 ministration should approve the application without 5 delay; and 6 (4) if and when the Food and Drug Adminis- 7 tration approves an oral birth control that is avail- 8 able over-the-counter, such birth control should be 9 covered by health insurance, without a prescription 10 and without cost-sharing. 11 SEC. 5. CLARIFYING COVERAGE REQUIREMENTS. 12 The Secretaries of Health and Human Services, 13 Labor, and the Treasury shall clarify that coverage of con- 14 traceptives pursuant to section 2713(a)(4) of the Public 15 Health Service Act (42 U.S.C. 300gg–13(a)(4)) includes 16 coverage of over-the-counter contraceptives approved, 17 granted, or cleared by the Food and Drug Administration, 18 even if the enrollee does not have a prescription for the 19 contraceptive. 20 SEC. 6. RULES OF CONSTRUCTION. 21 (a) NON-INTERFERENCE WITH FDA REGULA- 22 TION.—Nothing in this Act shall be construed to modify 23 or interfere with Food and Drug Administration processes 24 to review or approve, or otherwise determine the safety 25 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1698 IS and efficacy of, and make available, non-prescription 1 drugs or devices, modify or interfere with the scientific 2 and medical considerations of the Food and Drug Admin- 3 istration, or alter any other authority of the Food and 4 Drug Administration. 5 (b) NON-PREEMPTION.—Nothing in this Act pre- 6 empts any provision of Federal or State law to the extent 7 that such Federal or State law provides protections for 8 consumers that are greater than the protections provided 9 for in this Act. 10 SEC. 7. DUTIES OF RETAILERS TO ENSURE ACCESS TO CON- 11 TRACEPTION FOR USE WITHOUT A PRESCRIP- 12 TION. 13 (a) IN GENERAL.—Any retailer that stocks contra- 14 ception that is approved, granted, or cleared by, or other- 15 wise legally marketed under regulation by, the Food and 16 Drug Administration for use without a prescription may 17 not interfere with an individual’s access to or purchase 18 of such contraception or access to medically accurate, com- 19 prehensive information about such contraception. 20 (b) LIMITATION.—Nothing in this section shall pro- 21 hibit a retailer that stocks over-the-counter contraceptive 22 products from refusing to provide an individual with such 23 contraceptive product that is approved, granted, or cleared 24 by, or otherwise legally marketed under regulation by, the 25 VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1698 IS Food and Drug Administration if the individual is unable 1 to pay for the contraceptive product, directly, through in- 2 surance coverage, or through other payment mechanism. 3 Æ VerDate Sep 11 2014 21:14 Jun 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S1698.IS S1698 kjohnson on DSK79L0C42PROD with BILLS