One of the reasons that politics is an endlessly fascinating subject is the way that the law of unintended consequences so often comes into play. Politics is an inherently reactive profession, and you can’t always tell how your political opponents will react to your ideas or campaign gambits.
Nowhere has this principle been better illustrated than in the bizarre saga of over-the-counter (OTC) birth control. A couple of years ago, the topic was a political non-starter. Sure, the American Congress of Obstetricians and Gynecologists and weirdos like myself were out there saying that birth control pills should be made available without a prescription, but there wasn’t any momentum around the topic. Getting approval requires drug companies to apply through the FDA, and none were doing it. Instead, Democrats were focused, as they should be, on making insurance coverage of contraception universal. Republicans, of course, were trying to find angles to chip away at contraception coverage while pretending they aren’t anti-birth control.
Now there’s a sudden surge of energy around the topic. California is finalizing regulations that will allow pharmacists to prescribe birth control pills directly, instead of making women go through a doctor to get a prescription. And Senate Democrats have crafted a bill, called the Affordability Is Access Act, that would help ensure that women with insurance would receive birth control pills the FDA approves for over-the-counter sales without having to pay the market cost or a co-pay. (Of course, if you’re uninsured, you still have to pay cash.) Soon, it may be possible in California to just drop into your pharmacy every three months for a Depo shot and be done with it.
The reasons that this issue has surged to the forefront are complicated. In California, the policy is part of a larger bill that gives pharmacists broad authority to prescribe and tweak all sorts of medication directly instead of relying on a doctor to do it. As anyone who has ever gotten a flu shot at a pharmacy can attest that having pharmacists deal with health care directly really is easier than booking an appointment with a doctor for simple stuff. And, as the overwhelming evidence shows that the birth control is safe so long as the patient gets a handful of easy-to-understand warnings (mainly: don’t smoke), it’s a no-brainer to include birth control pills in this package.
The Senate bill, however, is another beast entirely. It’s a Democratic response bill to an earlier one offered by Sen. Cory Gardner and Sen. Kelly Ayotte, both Republicans. The original bill, called the Allowing Greater Access to Safe and Effective Contraception Act, is a largely meaningless bill that would “fast-track” any applications for OTC status for birth control and allow—allow, not require—insurance companies to cover over-the-counter medications if they choose. The bill is really quite silly. It supports hypothetical actions that corporations like drug companies and insurance companies could take, but there has never been any indication that companies are interested in taking these actions. Insurance companies don’t want to pay for OTC pills if they don’t have to, and this bill would not make them do so. Drug companies show no indication of wanting the birth control pill to be over-the-counter. The bill is akin to legalizing flying in protected airspaces so long as you use your own wings to do so: Cute, but irrelevant.
So why introduce it at all? For Gardner, it’s likely just naked political calculation. His 2014 Senate race was hurt by completely correct accusations that he supports “personhood” legislation that defines a fertilized egg as a person. Since the anti-choicers who write and support such bills frequently and loudly argue that birth control pills work by “killing” fertilized eggs (they actually work by suppressing ovulation), it was only reasonable to believe this was an attempt to ban hormonal contraception through back-door methods.
That kind of anti-choice radicalism doesn’t sell well with swing voters, though. So Gardner and many other anti-choice politicians latched onto this whole OTC birth control pill thing as a way to signal that they aren’t anti-contraception without having to actually do anything to make contraception easier to get. Gardner’s bill is just dishing out more of the same: trying to look pro-contraception while oh-so-conveniently doing absolutely nothing substantive on the issue.
But this is where the law of unintended consequences kicks in. By posturing so much on this issue, Republicans have not just drawn attention to it, but created an incentive for Democrats to respond in kind. Gardner and other Republicans were desperately trying to argue that Obamacare and Democratic health policies in general are somehow an obstacle to access. Gardner’s press release on this implied, falsely, that the Affordable Care Act is the sole reason that you can’t buy over-the-counter drugs with your insurance plan, even though anyone who was an adult with health insurance prior to 2010 could tell you that insurance coverage of OTC drugs has never been a thing.
By implying that Democrats are somehow standing in the way of OTC birth control pills, Gardner basically invited Democrats to show how not-true that is. And while their bill has no more chance of passing than his does, at least it has some teeth to it. The requirement that OTC birth control pills be covered by insurance would make that a tangible occurrence, as opposed to a hypothetical option that no insurance company would bother choosing. And it helps keep the issue at the forefront, making it all the more likely that we’ll get real movement on this issue in the future.
Certainly, the new California regulations shows who, exactly, is making real progress when it comes to making hormonal contraception both easier to get and more affordable. It’s not the red states, that’s for sure. And while the new California regulations aren’t truly making the birth control pill available over the counter—only the FDA really has that power, and they need drug companies to apply to even consider it—they have hit upon a solution that allows greater access while also making sure women can afford it. After all, the pills you’ll be able to get through your pharmacist will still be covered under the HHS regulations that make contraception available without a co-pay. And this is something that’s actually happening, instead of destined to languish in obscurity like Gardner’s do-nothing bill.