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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
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Contraceptive Equity as a Reproductive Right: Maryland in the Lead Yet Again

On May 10, 2016, Gov Larry Hogan of Maryland signed into law the Maryland Contraceptive Equity Act of 2016 (MCEA). In so doing, he reaffirmed and extended principles laid down in 1998 by his predecessor, Gov Parris Glendening, when Maryland, a trailblazer in women’s health care, became the first state in the nation to enact a contraceptive insurance mandate.

Eli Adashi, MD, MS

(Image: Brown University)

The MCEA requires state-regulated private payers and the public Medicaid program to underwrite cost-free over-the-counter emergency contraceptives and male sterilization. Self-insured employer benefit plans remain exempt because they are governed by federal rather than state laws. The law also eliminates copayments, guarantees a 6-month supply of oral contraceptives at a time (so the woman doesn’t have to return to the pharmacy each month for a 1-month supply), and abolishes preauthorization requirements for long-acting reversible contraceptives, such as intrauterine devices and subdermal contraceptive implants.

Improving on the ACA’s Contraceptive Benefits

The MCEA also improves on the contraceptive benefits offered by the Affordable Care Act (ACA), which requires insurers to offer only 1 category of contraceptives without a cost-sharing mechanism, such as a copayment or deductible. What is more, the MCEA applies to payers otherwise exempt from the contraceptive mandate of the ACA, such as churches and other religious organizations.

The Maryland law becomes effective on January 1, 2018, in time for the 2017 open-enrollment season for health insurance.

The legislation, introduced in the Maryland House of Delegates by Del Ariana Kelly (D, Montgomery County) and in the Senate by Sen Delores Kelley (D, Baltimore County), passed by large majorities in both houses.

The rationale for the MCEA and its approval was clear. Although the national rates of unintended pregnancies (including teenage pregnancies) have been declining, both remain substantial. Cost-free emergency contraceptives, male sterilization, ample birth control supplies, and accessible long-acting reversible contraceptives are needed to ensure the continued decline of the national rates of unintended pregnancies. “Family planning is essential for women’s rights, and cost is a factor in family planning,” Del Kelly told the Washington Post. “This legislation is going to help eliminate barriers and reduce costs for women and men.”

According to a March 1, 2016, brief by the Guttmacher Institute on conception policies among states, 28 states have enacted contraceptive equity statutes that require payers to underwrite the full range of US Food and Drug Administration–approved contraceptive drugs and devices; 2 of these states (Arkansas and North Carolina) exclude emergency contraceptives as a covered benefit based on the belief that these preparations constitute abortifacients.

None of these state contraceptive equity laws is as comprehensive as the MCEA. However, on May 23, Gov Peter Shumlin of Vermont signed into law a far-reaching bill, Reproductive Health Equity in Health Insurance Coverage. A handful of other states, including New York and Washington, are considering bills that could rival Maryland’s. Minnesota, Ohio, Florida, and Alaska have also entered the fray in a quest to pass inaugural contraceptive equity laws.

Contraception as a Basic Preventive Service

The notion that contraception constitutes a basic preventive service rests on firm moral and legal grounds. Significant efforts over the years include the following:

  • In 1936, the International Workers Order, a fraternal society, became the first prepaid payer committed to including contraception in its benefits package  .

  • In 1972, Congress amended the Medicaid component of the Social Security Amendments of 1965 (Public Law 89-97) to require contraceptive underwriting absent copayment.

  • In 1998, Congress amended the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277) to require contraceptive underwriting by the Federal Employees Health Benefits Program.

  • In 2000, the Equal Employment Opportunity Commission decreed that the failure of an employer to underwrite contraceptives violates the Pregnancy Discrimination Act of 1978 (Public Law 95-555).

However, broad federal statutory support remains wanting, the above notwithstanding. Multiple  attempts in Congress to secure lasting federal relief have failed. In 1993, President Clinton challenged Congress to pass the Health Security Act of 1993, replete with the underwriting of contraceptives. However, neither the Senate bill nor its House counterpart was enacted. In 1997, Rep James “Jim” Greenwood (R, Pennsylvania) and Sen Olympia Snow (R, Maine) cointroduced the Equity in Prescription Insurance and Contraceptive Coverage Act of 1997 (HR 2174/S 766), with an eye towards requiring contraceptive underwriting. Neither was enacted.

More recently, in 2004, Sen Harry Reid (D, Nevada) and Rep Louise Slaughter (D, New York) cosponsored the Putting Prevention First Act of 2004 (S 2336/HR 4192) with contraceptive underwriting in mind. Both bills died in committee.

Absent a federal resolution, it is hardly surprising that the mantle has been picked up by the states. In this context, we have the state of Maryland to thank for leading the pack.

About the author: Eli Y. Adashi, MD, MS, is a professor of Medical Science and the former dean of Medicine and Biological Sciences at the Warren Alpert Medical School of Brown University in Providence, Rhode Island.
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