Analysis | The court case that could upend access to free birth control (2024)

Today’s edition: Legislation that seeks to boost competition in the prescription drug market sailed through the Senate. Abortion rights supporters scored a win in the courts in New York. But first …

If federal guardrails on birth control coverage don’t hold, access could be all over the map

A lawsuit winding its way through the courts could undermine the power of federal agencies to mandate the services health insurance providers must cover. And that could threaten access to free birth control for millions of Americans.

The case is called Braidwood Management Inc. v. Becerra, and it was brought by plaintiffs looking to strike down Obamacare’s requirements that private insurers cover certain kinds of preventive care without cost sharing. (Think everything from no-cost cancer screenings to free IUDs.)

Without those nationwide standards, the United States would return to a “wild West” dynamic “in which insurers and employers pick and choose which services they want to cover or which services they want to charge for,” said Zachary Baron, a health policy researcher at Georgetown Law.

The plaintiffs, a group of individuals and Christian-owned businesses, argue the three groups that set coverage standards — including an independent advisory panel to the Health Resources and Services Administration — haven’t been properly appointed by Congress.

In June, the U.S. Court of Appeals for the 5th Circuit issued a self-described “mixed bag” of an opinion. It agreed that one body hadn’t been properly appointed, making its recommendations since the Affordable Care Act became law unconstitutional. But the court said only the plaintiffs get to ignore its standards.

The appeals court sent questions about the other two groups — including the advisory panel to HRSA that makes recommendations on contraception — back to a lower court to consider.

The case is likely headed back to U.S. District Judge Reed O’Connor. O’Connor’s previous ruling that one body hadn’t been properly appointed was supported by the appeals court. His remedy — blocking its mandates nationwide — wasn’t.

O’Connor is notoriously hostile to the ACA — he struck down the law in 2018. The Supreme Court later overturned that ruling.

And that makes reproductive rights advocates nervous.

O’Connor “is someone who is willing to impose remedies where he takes access to care away from everybody in the country,” said Gretchen Borchelt, vice president of reproductive rights and health at the National Women’s Law Center.

A lack of federal requirements for birth control coverage would leave it up to the states to mandate what insurers have to provide. Fourteen states and D.C. currently protect the right to contraception.

But states can go only so far with those rules, because of a federal law that prevents them from regulating employer-funded health plans, which cover about 65 percent of workers.

“If the plaintiffs win here, it would leave significant gaps in coverage that states would be unable to fill,” Baron said.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF — an independent source of health policy research, polling and journalism.

On the Hill

Bill to boost competition in drug market breezes through Senate

The Senate unanimously passed the Affordable Prescriptions for Patients Act, which seeks to curb anticompetitive practices in the drug market. The bill now heads to the House for consideration.

The details: Spearheaded by Sens. John Cornyn (R-Tex.) and Richard Blumenthal (D-Conn.), the legislation targets “product hopping” — a tactic where pharmaceutical companies extend their monopoly on a brand-name drug by slightly altering it just before a generic version becomes available. The Federal Trade Commission would enforce the provision.

Meanwhile …

The Senate Appropriations Committee unanimously advanced bipartisan legislation to fund the Food and Drug Administration in fiscal 2025.

A closer look: The bill allocates $6.87 billion for the FDA, including $3.544 billion in discretionary funding — a $22 million increase over fiscal 2024. Key provisions include:

Next steps: The measure must first pass the full Senate and then be reconciled with the House version. Republican leaders in the lower chamber are aiming to move their funding bill on the floor at the end of the month, which proposes $6.75 billion for the FDA with $3.5 billion in direct appropriations.

In other news from Capitol Hill …

State scan

New York’s expanded Equal Rights Amendment to appear on November ballot

New York’s highest court has paved the way for a proposed constitutional amendment to appear on November’s ballot. The measure seeks to prohibit discrimination based on “gender identity” and “pregnancy outcomes,” and safeguard reproductive care from governmental restrictions.

Key context: A Republican state lawmaker had sued to block the question, arguing that Democrats had made a procedural error when they initially approved it during a special legislative session in 2022. The high court dismissed the suit, upholding a June ruling that found no major constitutional issues at stake.

The bigger picture: The ruling hands a win to Democrats, who are betting the ballot measure will energize their base ahead of the November elections. Republicans, meanwhile, are aiming to highlight new protections they argue the amendment could extend to transgender minors, while also raising concerns about potential impacts on parental rights.

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