Under this Executive Order, President Biden is expected to announce a wide range of actions to improve access to contraception.

Background

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (discussed in our June 24, 2022 insight), access to high-quality contraception continues to vary based on income, location, health insurance coverage and the availability of healthcare providers.

Access to high-quality contraception improves health outcomes, advances economic stability, and promotes women’s overall well-being. Recent state law restrictions threaten women’s ability to make decisions about their own bodies, families and futures.

To protect access to contraception in the wake of the Dobbs decision, the Biden Administration issued Executive Order #14076, “Protecting Access to Reproductive Healthcare Services,” in July 2022, and #14079, “Securing Access to Reproductive and Other Healthcare Services,” in August 2022, which directed actions to safeguard access to reproductive care services, including clarifying protections for women under private health insurance and expanding access under the ACA.

The new Executive Order

Noting that millions of people continue to face barriers to obtaining the contraception they need, the new Executive Order #14101, “Strengthening Access to Affordable, High-Quality Contraception and Family Planning Services,” which was issued on June 23, 2023, seeks to establish a contemporary set of guidelines to afford coverage of Food and Drug Administration (FDA)-approved contraception for all Americans.

Generally, through the Order, President Biden directed his Administration to further strengthen and bolster access to affordable, high-quality contraception. Biden stated that “it remains the policy of my Administration to support access to reproductive healthcare services and to protect and defend reproductive rights in the face of ongoing efforts to strip Americans of their fundamental freedoms.”

Key objectives of Executive Order #14101

Citing contraception as an essential component of reproductive healthcare, under Executive Order #14101, President Biden is expected to announce a wide range of actions to:

• Improve contraception access and affordability for women with private health insurance
• Promote increased access to over-the-counter contraception
• Support access to affordable contraception for employees and college students
• Support access to contraception for service members, veterans and federal employees
• Bolster contraception access across federally supported healthcare programs
• Promote research and data analysis on contraception access
• Improve the coverage of contraception through the Medicaid
• Support family planning services and supplies through the Medicaid program

Implications for group health plans

Under the ACA, most group health plans and insurers must cover, without cost sharing, at least one form of contraception in each of the 18 categories specified by the Health Resources and Services Administration (HRSA). Generally, the ACA mandate covers the full range of FDA-approved contraceptives that prevent fertilization.

In FAQs Part 51, issued in January 2022, the Departments of Labor, Health and Human Services, and the Treasury made clear that if an individual and their attending provider determine that a particular service or FDA-approved, cleared or granted contraceptive product is medically appropriate for the individual, a plan or issuer subject to ACA’s contraceptive mandate must cover that service or product without cost sharing (whether or not the item or service is identified in the current FDA Birth Control Guide).

For additional guidance on coverage of FDA-approved, cleared or granted contraceptive products under HRSA-supported guidelines, plan sponsors can consult FAQs Part 54.

Guidance may be forthcoming

Executive Order #14101 directs the Secretaries of the Treasury, Labor, and Health and Human Services (Secretaries) to consider issuing guidance, consistent with applicable law, to further improve Americans’ ability to access contraception, without out-of-pocket expenses, under the ACA.

In doing so, the Secretaries must consider, to the greatest extent permitted by law, actions that would:

• Ensure coverage of comprehensive contraceptive care, including all contraceptives approved, granted or cleared by the FDA, without cost sharing for enrollees, participants and beneficiaries.
• Streamline the process for patients and healthcare providers to request coverage, without cost sharing, of medically necessary contraception.

The Secretaries also are directed to consider additional actions, as appropriate and consistent with applicable law, to promote increased access to affordable over-the-counter contraception, including emergency contraception.

In addition, the Executive Order directs the Secretary of Labor to identify best practices for making affordable, high-quality contraception available to health plan enrollees, participants and beneficiaries to share with employers and organizations that sponsor private health coverage.

Consequently, Executive Order #14101 may result in new guidelines for group health plans.