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Republicans Aim to End Birth Control Benefit in Last-Minute Obamacare Repeal Push (Update)

Christine Grimaldi

“The Graham-Cassidy proposal unfortunately does nothing to support women in their efforts to prevent an unplanned pregnancy, and in fact will make it much harder for millions of women to do so."

UPDATE, September 26, 3:12 p.m.: Senate Majority Leader Mitch McConnell (R-KY) announced Tuesday afternoon that the Senate won’t vote on the Graham-Cassidy Obamacare repeal bill, which lacks the support of enough Republicans to proceed. McConnell pledged that Republicans will return to Obamacare repeal efforts after GOP efforts to cut taxes.

Republicans in the U.S. Senate have earned the distinction of turning “the worst health care repeal bill yet” into an even bigger disaster for reproductive health, letting states off the hook of holding insurers to cover the full cost of birth control.

The latest offering from GOP Sens. Lindsey Graham (SC) and Bill Cassidy (LA) late Sunday night may already be dead on arrival given two nearly concurrent, damning events that occurred Monday evening. A partial Congressional Budget Office-Joint Committee on Taxation score couldn’t determine how many people would lose access to affordable health care, just that “the number of people with comprehensive health insurance that covers high-cost medical events would be reduced by millions compared with the baseline projections for each year during the decade.” And Sen. Susan Collins (ME) became the third GOP senator to firmly oppose Graham-Cassidy efforts to repeal the Affordable Care Act (ACA), or Obamacare, before Friday’s deadline to fast-track it through Congress.

Senate Republicans’ new bull’s-eye on birth control plays into the Trump administration’s efforts to blow up affordable contraceptives by waging an obscure regulatory war against Obamacare’s popular birth control benefit in the federal agencies. The benefit saved people $1.4 billion on birth control pills alone in its inaugural year. That figure doesn’t include the savings for costlier types of birth control, including intrauterine devices (IUDs) and other long-acting reversible contraceptives.

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Today, some 62.4 million cisgender women and an untold number of transgender and gender nonconforming people rely on the benefit, according to the National Women’s Law Center (NWLC).

How can Graham and Cassidy get away with ending their access to birth control?

Both the most recent and revised Graham-Cassidy bills would allow states to cast off “essential health benefits”—the set of ten categories of health services that the statutory text of Obamacare, the underlying law itself, requires health plans in the individual and small group markets to cover. When Graham-Cassidy and other Republican-backed ACA repeal schemes propose sacrificing guaranteed maternity care and preventive services, including contraceptives, they’re targeting Obamacare’s essential health benefits. 

Under another part of the Obamacare statute, the Section 2713 Women’s Health Amendment, most private insurance plans, including employer plans, must fully cover the costs of what are known as “women’s preventive services.” That’s where federal regulations enforcing Obamacare by defining the women’s preventive services guidelines come in. When the new Graham-Cassidy bill proposes ending no-co-pay contraception, it’s telling states that they, and their insurers that sell plans to women in the individual health insurance market, don’t have to comply with the women’s preventive services guidelines. According to the Kaiser Family Foundation, under the Graham-Cassidy bill, employer-based health plans would still be required to cover no-co-pay contraception as well as maternity care.

States could single out for dismissal or opt out entirely of guidelines, meaning that many insurers within their borders wouldn’t have to provide ten potentially life-savings services without a co-pay, as regulations require today. Some could hold their insurers accountable for breast and cervical cancer screenings—and not for HIV screening, sexually transmitted infections counseling, interpersonal and domestic violence detection, breastfeeding services and supplies, and contraception, among others.

Janel George, NWLC’s director of federal reproductive rights and health, criticized Graham-Cassidy for attempting to go back to a time when access to contraception depended on the political winds in state legislatures and governor’s offices. 

“Unfortunately, it would return us to a time where a woman’s access to birth control or her access to the coverage she needs would depend upon her zip code,” George said in a phone interview.

“The whole point of the ACA was to have a nationwide guarantee of these vital preventive services that women need.”

States wouldn’t even need a formal waiver from the federal government to pick and choose or outright eliminate women’s preventive services, according to George. Under the revised Graham-Cassidy plan, states would still be eligible for federal dollars in the form of market-based health care grants to help kick-start new programs even if they tell the federal government no, we won’t cover some or all of the women’s preventive services.

“This is sending a signal of, ‘You don’t have to keep following the ACA’s rules,’” George said. “Now it’s not up to the feds, even though this is federal money. It’s up to the states.”

A Senate Democratic aide confirmed George’s assessment of the bill to Rewire. The Guttmacher Institute’s Adam Sonfield similarly told Vox and confirmed to Rewire that state waivers won’t be necessary for essential health benefits and women’s preventive services.

The Graham-Cassidy bill continues GOP-led efforts to “defund” Planned Parenthood, gut Medicaid, and ban abortion coverage even in private health insurance plans. Guttmacher’s Sonfield detailed the anti-abortion machinations in a new Health Affairs blog post.

The new birth control wrinkle only increases advocates’ ire.

“The Graham-Cassidy proposal unfortunately does nothing to support women in their efforts to prevent an unplanned pregnancy, and in fact will make it much harder for millions of women to do so,” Ginny Ehrlich, CEO of The National Campaign to Prevent Teen and Unplanned Pregnancy, told Rewire via email. “It would fundamentally damage the ability of millions of women to decide if, when, and under what circumstances to get pregnant. Should this bill become law, millions of women, especially those with modest or lower incomes, would lose health coverage and coverage for no co-pay birth control.”

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