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Today, the National Partnership for Women & Families took critical steps to protect and expand access to contraception. With partner organizations across the movement for reproductive health, rights, and justice, we submitted a comment letter to the Centers for Medicare & Medicaid Services (CMS) on a new proposed rule expanding access to birth control coverage under the Affordable Care Act (ACA).

This new proposed rule by the Biden administration is an effort to unwind the devastating effects of two Trump era regulations. In 2018, the Trump administration finalized two rules that (1) expanded the exemption to include employers, universities, and insurers that hold moral convictions against providing birth control, and (2) made the accommodation requirement optional. These sweeping actions threatened to undermine birth control access for millions of people.

The Biden administration’s proposed rule removes the exemption based on moral convictions and proposes a new avenue for accessing birth control through an “individual contraceptive arrangement” (ICA). This arrangement will be available to beneficiaries who receive their insurance coverage through entities that are opposed to the contraception requirement and are unwilling to opt into the accommodation. Importantly, the ICA process does not require any action from the objecting entity; it allows individuals to instead obtain birth control at no cost directly from providers or facilities furnishing contraceptive services.

While we are strongly supportive of the administration’s efforts to improve access to contraception, we caution that the ICA process must be designed and implemented thoughtfully to mitigate against any potential unintended consequences. Since the onus of opting into the ICA is on the individual, there must be a commitment to equity at every step, including in how information about this process is communicated. Centering equity in the ICA process is particularly important because of the long, tragic history of oppressive reproductive policies in the U.S. targeted at “Black women, women of color, women with low incomes, immigrant and Indigenous women, uninsured women, women with disabilities, and women whose bodily autonomy and sexuality was not respected.”

Specifically, the comment letter that we joined raises the following questions that the administration should address in the final rule:

• Who exactly is eligible to participate in the ICA? How will the process meaningfully facilitate timely, equitable access to contraception?
• How will HHS ensure the ICA is proactively, broadly, and equitably publicized so that people know their rights and options? What support will be available to help people navigate this process including, but not limited to, ensuring that they are not subject to discrimination as they avail themselves of the ICA?
• What is the pool of providers that people can get contraception from? How will HHS actively recruit and incentivize payers and providers to participate, especially providers who are culturally competent and serve diverse communities?

A woman’s ability to choose how, when, and if she gets pregnant – and her ability to meaningfully effectuate those choices – is a fundamental right. It has significant implications for women’s educational attainment, labor force participation, career earnings, and much more. For instance, access to birth control has given women the opportunity to wait longer to have children, which allows them to pursue education and invest in their careers, in turn reducing their likelihood of living in poverty and contributing to a significant increase in the number of women in the workforce. Thus, the ICA’s goal to increase access to contraception at no cost is essential.

Moreover, this rule comes at a critical time. The growing restrictions on abortion access, including threats to medication abortion following the overturning of Roe v. Wade, make contraceptive access ever more important. We know that anti-abortion extremists have their sights on undermining our right to contraception next – so every effort to protect and expand coverage and access to contraceptive services is vital and urgent.

Fundamentally, employers, universities, and issuers should not dictate whether someone can access birth control. This is a decision that should be left to an individual and their health care provider. As such, we’ll continue to fight every day to make sure that our government supports our reproductive freedom.