With growing abortion restrictions, Democrats push for over-the-counter birth control

If there was ever a time for Republicans to back efforts to expand birth control access, U.S. Sen. Patty Murray of Washington thinks this should be it.

"Women in many states today, because of the decision by the Supreme Court, are really worried about their access to be able to have birth control pills as a way of making sure they don't become pregnant, because in their states, they won't have access to abortion care," Murray, a Democrat, said in an interview with NPR.

"I disagree wholeheartedly with the Supreme Court decision," she said, referring to last summer's Dobbs v. Jackson Women's Health Organization ruling that overturned decades of abortion-rights precedent. "But at the same time, we need to make sure that over-the-counter birth control is available."

Murray re-introduced legislation on Thursday that would require insurance companies to cover over-the-counter birth control pills as soon as they become available without a prescription, as recently recommended unanimously by a Food and Drug Administration panel. More than 100 countries already allow oral contraceptives to be dispensed this way.

Murray's bill would build on a requirement in the Affordable Care Act that most health insurance companies provide contraceptive coverage without a co-pay.

"Now that we are seeing that it may become available over the counter, we want to make sure that insurers still pay for it because it is costly," Murray says. "This is a great step if FDA approves this and women can go to the drugstore and purchase it without having to have a doctor's appointment ... but it will only be available for some women if it is not covered by insurance."

A push for Republican support

In the wake of the Dobbs decision, Murray says she hopes Republicans will join her — which would be essential in a closely-divided Congress for her legislation to advance.

Murray notes that some Republicans who oppose abortion rights have said they do not intend to limit access to birth control. Leaders of the Congressional Pro-Life Caucus, among others, have made such claims.

"I say to them, this is your opportunity to show people that you are living the words that you're speaking and co-sign the legislation," Murray says. "Work with us. Let's get this passed."

So far, she has no Republican co-sponsors. But some Congressional Republicans have a history of supporting legislation meant to ease access to contraceptives. Last year, just weeks after the Dobbs decision, a group of Iowa Republicans including Senators Joni Ernst and Chuck Grassley and Congresswomen Mariannette Miller-Meeks and Ashley Hinson proposed legislation designed to expedite efforts to make certain contraceptives available over the counter to patients 18 and older.

Groups opposed to abortion rights have generally avoided taking positions explicitly opposing contraception, although some support legislation that reproductive rights advocates warn could threaten access to some birth control methods.

In a statement, Students for Life of America described the move toward over-the-counter birth control as "reckless" and suggested that easier distribution of birth control pills is unwise given rising rates of some types of sexually transmitted infections, which the organization described as an "epidemic of sexually transmitted disease."

A separate fight - over abortion pills

Murray's bill focuses on improving access to birth control pills, which prevent pregnancy. But the proposal comes amidst other battles over access to reproductive health care, including ongoing litigation in the federal courts over the abortion pill, mifepristone. That drug is widely used in combination with another medication to terminate mostly first-trimester pregnancies, and to treat patients experiencing miscarriages.

A lawsuit filed by a coalition of anti-abortion rights groups challenges the FDA's approval of the pill in 2000 and several subsequent rule changes that have eased access to the drug, including allowing the pills to be distributed by mail. It seeks to remove mifepristone from the market altogether.

In the latest development in that case, a federal appeals court heard arguments last week during a hearing in New Orleans.

As NPR's Selena Simmons-Duffin reported, a panel of conservative-leaning federal judges posed questions to lawyers on both sides. Judge Cory Wilson asked Deputy Assistant Attorney General Sarah Harrington, who was representing the FDA, what happens to patients who receive pills in the mail, if the drugs do not successfully terminate a pregnancy within two weeks. Harrington told Wilson that in a small percentage of cases, patients may need to contact their healthcare providers for follow-up care.

Abortion rights advocates say medication abortion is a preferred option for many patients for a variety of reasons, including for people who live in rural areas without access to abortion clinics, those who want to avoid a surgical procedure to terminate an unwanted pregnancy or help ease a miscarriage already underway, or who prefer to complete the process at home.

In an interview with NPR's Becky Sullivan, a woman named Rebecca, who asked that we use only her first name, said that having the option to terminate her pregnancy at home in 2020 during the pandemic was a "godsend," particularly given the fact that she believed some of her family members would not have supported her decision.

"Being able to do it in the privacy of my home and not having to explain anything to anyone is the biggest part of it," she said.

Brianna Scott and Jeanette Woods contributed to this report.