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Delaware Senate Democrats

Sen. Gay sponsors legislation directing insurance companies to cover new OTC birth control pill

March 6, 2024

DOVER – The full range of FDA-approved contraceptives would remain available to most Delawareans at no cost under legislation introduced Wednesday by Delaware Legislative Women’s Caucus Co-Chair Sen. Kyle Evans Gay.

Senate Bill 232 would close a potential loophole in state law created by the first oral contraceptive approved for use in the United States without a prescription.

Approved by the U.S. Food and Drug Administration in July 2023, Opill was shipped to retailers by manufacturer Perrigo this week and is expected to be available from major retailers and pharmacies in several states later this month.

While federal policy currently requires most private health insurance plans and Medicaid expansion programs to cover FDA-approved contraceptives without patient co-pays, rules around insurance coverage for the new over-the-counter form of the progestin norgestrel and any future over-the-counter contraceptive approved by the FDA have largely been left to the states.

“A safe and reliable over-the-counter birth control pill is a huge advancement for reproductive health and family planning, and I am grateful that more people will have access to safe, reliable forms of birth control in the decades ahead,” Sen. Gay said. “Now, Delawareans need us to act to make sure our laws are keeping pace with these innovations so they can retain the same access to this new advance that they currently rely on for other contraceptive methods.”

SB 232 would require insurers operating in Delaware provide the same level of coverage for over-the-counter contraceptives, as is currently required for contraceptives available with a prescription. Currently, at least eight other states have enacted similar laws, including New Jersey, New York, and Maryland.

“In 2018, we recognized the need to make contraceptives more affordable and accessible with SB 151,” said Rep. Debra Heffernan, prime House sponsor of SB 232. “This legislation builds on our earlier efforts and modernizes reproductive health in Delaware, making it more accessible for all.”

SB 232 would not impact the ability of insurers to require patient counseling in advance of coverage nor would it prohibit insurers from completing any utilization review or impede existing limitations to prevent bulk purchases beyond a 12-month supply.

“This consumer-friendly legislation helps us to ensure residents don’t inadvertently pay out of pocket for contraceptives due only to the convenience of an over-the-counter option, or because the contraceptives were not individually prescribed. With the statewide standing order in place to effectively prescribe contraceptives to all persons and the protections in this bill, we can make sure that Delaware’s regulated insurance plans continue to provide affordable access to reproductive care,” said Insurance Commissioner Trinidad Navarro. “We are proud to partner with Senator Gay on this important bill.”

In addition to establishing blanket insurance coverage for prescription contraceptives in 2018, Senate Democrats also successfully expanded access to reproductive health care in 2021 by passing legislation that allows pharmacists to dispense contraceptives under a standing order from the Delaware Department of Health and Social Services.

Passed during the 151st General Assembly, Senate Bill 105 had the effect of making most forms of contraceptives available without individual prescriptions, eliminating an unnecessary hurdle for many Delawareans, particularly those living in areas of the state where primary care doctors are in short supply.

A 2020 study of women in four states where pharmacists can dispense contraceptives found that those women who used a pharmacy for their birth control needs tend to be younger, uninsured and have less education than women who received a prescription from their healthcare provider – the same demographics that tend to experience higher rate of unintended pregnancies.

DHSS finally adopted new regulations on February 11, 2024 that established the requirements, standard procedures and conditions under which pharmacists in Delaware may now dispense and administer contraceptives without requiring an individual prescription.

“Six decades after the pill was first approved by the FDA, nearly 7 out of 10 women over the age of 15 actively use some form of contraception to prevent unwanted pregnancies, to regulate their menstrual cycles, to manage endometriosis, and to reduce the risk of uterine cancer and ovarian cysts,” said Sen. Marie Pinkney, the prime sponsor of SB 105.

“By making birth control available directly from local pharmacies, we have expanded access to these vital medications to Delawareans who lack a primary care doctor, lack the transportation needed to visit a provider or lack the ability to take time away from work for those appointments,” she said. “I want to commend Sen. Gay for continuing to move reproductive healthcare forward in Delaware by directing insurance companies to make over-the-counter contraceptives just as affordable as prescription contraceptives, and empowering our neighbors to take control of their own reproductive health.”