Should Contraceptives Be Available to Adults Over-the-Counter? (S. 1438)

What is S. 1438?

(Updated March 4, 2020)

This bill would allow contraceptives that are intended for routine use and have been proven safe to be purchased over-the-counter without a prescription by adults age 18 and older. Current law requires that such contraceptives be provided only with a doctor’s prescription.

It would incentivize contraceptive manufacturers to file an application with the Food and Drug Administration (FDA) for a prescription-to-over-the-counter switch (Rx-to-OTC switch) in two ways:

• Contraceptive Rx-to-OTC switch applications would be allowed to proceed under priority review by the FDA.

• Filing fees normally required by the FDA would be waived for contraceptive Rx-to-OTC switch applications.

The ACA’s annual limits on FSA contributions would also be repealed, so consumers could save as much money in their FSAs as they’d like to then spend on contraceptives.

Argument in favor

There is no reason that contraceptives intended for regular use and have been proven to be safe shouldn’t be available to adults over-the-counter. People should be able to use funds from health-related savings accounts to buy over-the-counter drugs.

Argument opposed

This bill could lead to contraceptives being more expensive for consumers, because over-the-counter purchases would be exempt from Obamacare’s coverage mandate — which only applies to contraceptives that require a prescription.

Impact

People purchasing contraceptives, contraceptive manufacturers, and the FDA.

Cost of S. 1438

A CBO cost estimate is unavailable.

Additional Info

In-Depth: The lead sponsor of this legislation, Sen. Kelly Ayotte (R-NH), touted her bill on the grounds that it will:

“Help increase women’s access to safe and effective contraceptives and further empower women to make their own health care decisions. In addition, our bill restores the ability of Health Savings Accounts and Flexible Savings Accounts to be used to purchase over-the-counter medications, giving women more purchasing power.”

Expressing opposition to the bill, the president of the Planned Parenthood Action Fund believes this proposal is a “sham” that would “actually restrict women’s choices and cost women more money.” The New Hampshire Democratic Party concurred with that sentiment, saying Sen. Ayotte’s legislation would “force women to pay hundreds of dollars more out of pocket for birth control that is now free thanks to the Affordable Care Act.”

Media:

• Sponsoring Sen. Kelly Ayotte (R-NH) Press Release
• Breitbart (In Favor)
• Bustle (Opposed)
• New Hampshire Democratic Party (Opposed)
• New Hampshire Union-Leader (Op-Ed In Favor)

Summary by Eric Revell
(Photo Credit: Flickr user Surija / "Sray")