States Stepping up – State Legislation Promoting Access to Contraception
The states have stepped in to fill the gap left behind by the ACA and to expand access to contraception. Many states are doing so with the help of the National Health Law Program’s Model Contraceptive Equity Act (Model Act), which NHeLP created shortly after co-sponsoring California’s 2014 contraceptive equity legislation.
The Model Act goes beyond existing federal standards and expands contraceptive access with the goal of achieving true contraceptive equity. States’s contraceptive equity laws usually govern non-grandfathered commercial health plans, including individual and employer-sponsored plans, plans purchased through the ACA’s marketplaces, Medicaid Alternative Benefit Plans (for the Medicaid expansion population), and Medicaid managed care plans.[1]Versions of the Model Act have been introduced in 40 jurisdictions and enacted in 14 states and Washington, D.C. We encourage states to adopt all of the Model Act. However, 32 states as well as Washington D.C. passed portions of the Model Act. This information can be found in our updated contraceptive tracker which includes state legislation incorporating all or part of the Model Act. NHeLP encourages advocates to use this tool to help inform legislation in their states.[2]Trends in Contraceptive Legislation [3]
As states adopt provisions of the Model Act, some trends have emerged. Thirty-one state and the District of Columbia mandate that insurers who cover prescription drugs also cover FDA-approved prescription contraceptive devices and drugs. In the last decade, 12 state laws have greatly expanded access to contraceptives by requiring that all FDA-approved contraceptive devices and drugs be covered without cost sharing (except for therapeutically equivalent products). This coverage goes beyond the current federal mandate, which only requires coverage without cost-sharing of at least one form of contraception in each of the 18 contraceptive method categories and coverage without cost-sharing of any FDA-approved contraceptive that an individual’s provider deems “medically appropriate.” Covering all FDA-approved contraceptives (except for those with a therapeutic equivalent) grants people greater ease in accessing the contraceptive of their choice without having to navigate the often burdensome exceptions processes to have a contraceptive deemed “medically appropriate.”
Over the last five years, there has been a significant increase in states across the country and political spectrum adopting laws allowing pharmacists to prescribe, dispense, or furnish contraceptives.[4]
Currently, 28 states and D.C. allow pharmacists to prescribe contraceptives.
States do so in three ways: a statewide protocol that expands pharmacists’ scope of practice to allow for independent prescribing (the most common and least restrictive method), via standing order issued by a statewide health official, or by requiring a formal collaborative practice agreement between a pharmacist and physician/other provider (the least used and most restrictive method).
Pharmacist prescribing became increasingly important for a number of reasons, including the COVID-19 pandemic restricting people’s access to care, rising contraceptive care deserts, and a broader understanding of the burden clinical visits put on people, especially individuals who are disabled. Pharmacist prescribing is especially popular in rural states. For example, Arkansas and North Carolina are among the leaders in training their pharmacists and educating communities about this new coverage.[5]However, it is important to note that 13 states (including Arkansas and North Carolina) prohibit pharmacists from prescribing contraceptives to patients under 18 years old (with certain exceptions). These dangerous restrictions are often the result of ill-informed and unnecessary fears to protect minors. In fact, these restrictions hurt minors, as numerous studies show that restricting young people’s access to contraception undermines their health and well-being.[6]Another recent emerging trend is states requiring coverage of over-the-counter (OTC) contraceptives without a prescription and without cost-sharing. Ten states require that certain state-regulated plans cover some OTC contraceptives. All ten states require OTC protection for state-regulated plans. However, only six require coverage of Medicaid enrollees and four require coverage of state employee plans. Only seven of the ten state’s cover both internal and external condoms. Lamentably, none of these states have provided specific billing, claims, and operational direction to ensure true point-of-sale access for OTC contraceptives.
OTC coverage of contraception is particularly important given that emergency contraception must be taken within 72 hours of unprotected sex, the growing number of contraceptive care deserts, and the first-ever FDA approved OTC hormonal contraceptive pill that hit shelves earlier this year.
States Willingness to Respond
Another emerging trend is states being responsive to community concerns and amending or updating contraceptive legislation in response to issues on the ground. States are showing a willingness to respond to issues on the ground and amend or update contraceptive legislation in response to community concerns. In 2022, California updated the Contraceptive Equity Act with SB 523. This updated legislation requires, among other things, coverage of OTC contraceptives without cost-sharing and without a prescription and coverage of vasectomy services without cost-sharing.
Additionally, in 2020, one year after West Virginia passed a law authorizing the issuance of a standing order granting pharmacists the ability to prescribe contraceptives, the state passed a law allowing pharmacists (and other clinicians) to dispense up to 12- months of contraceptives at a time (after completion of the initial supply). The initial law of 2019 improved access to contraception, especially for rural communities and those living in contraceptive deserts. It also helped people with disabilities. The 2020 law further reduced barriers for these communities by potentially requiring just one trip to the pharmacy per year.
Similarly, Washington was the first state to allow pharmacists to prescribe contraception. However, after years of stagnant utilization, in 2016, Washington passed a law requiring the Pharmacy Quality Assurance Commission to develop a sticker/sign to be displayed to inform the public where pharmacists are available to provide contraception.
While much more still needs to be done on implementation, education, and enforcement of contraceptive coverage requirements, evidence shows that many states are responsive to fixing problems. Consequently, advocates are crucial to informing legislators of coverage and access issues within their communities.
What’s Next?
President-Elect Trump’s first administration was hostile to sexual and reproductive health care. In addition, the Heritage Foundation, along with a coalition of conservative groups, outlined proposals in their 2025 Presidential Transition Project (Project 2025) that would rollback contraceptive accessibility. Project 2025 aims to undermine the ACA’s contraceptive requirement by expanding religious and ethical exemptions for employer sponsored health plans (making employers more likely to exclude contraceptive coverage for their employees’ health plans) and eliminating coverage for emergency contraception. In fact, Project 2025 repeatedly incorrectly conflates abortion and emergency contraception.
In the face of these challenges, it remains imperative for states to protect and expand access to contraception. NHeLP has committed to helping states achieve contraceptive equality. It is necessary to conduct more inclusive research and policy to better serve the needs of people who require equitable access to reproductive health care. In March 2024, Wisconsin’s Governor Tony Ever announced that Medicaid enrollees could access Opill without any out-of pocket costs. North Carolina Governor Cooper announced in July 2024 that NC Medicaid will cover Opill at no cost and without a prescription for NC Medicaid recipients. In some states, scope of practice laws allow non-physician practitioners to prescribe contraception. Others allow them to “dispense” or “furnish” contraception. Functionally, scope of practice laws using any of these terms, prescribe, dispense, or furnish, should act the same: allowing nonphysician providers to independently provide prescription contraceptives.
NHeLP continues helping states pass and implement pharmacy access laws, including by publishing a roadmap for state pharmacy access laws and a white paper highlighting issues in pharmacy billing and reimbursement for contraception.
