Woman taking out a morning after pill from her handbag

Authored by: Amy E. Fouts (Partner) and Claire M. Bass (Associate)

On July 28, U.S. Department of Health and Human Services (HHS), alongside the Department of Labor (DOL) and the Department of Treasury, warned that limiting coverage of contraceptives following the U.S. Supreme Court ruling in Dobbs violates the Affordable Care Act (ACA).

In an opinion concurring with the Supreme Court’s Dobbs decision, Justice Clarence Thomas wrote that the courts reasoning in overturning Roe v. Wade could also apply to birth control, which led to concern over states potentially limiting access to contraceptives. The HHS and the DOL note increased the number of complaints from women who have been denied coverage for different forms of birth control since the Supreme Court’s ruling.

Secretary of HHS Xavier Becerra announced that “[u]nder the ACA, you have the right to free birth control – no matter what state you live in.” The HHS guidance outlines the following:

  • The ACA (also known as Obamacare) requires insurance plans to provide preventive services, including free birth control and contraceptive counseling, to insured individuals and their dependents. These includes:
    • Hormonal methods, like birth control pills and vaginal rings.
    • Implanted devices, like intrauterine devices (IUDs).
    • Emergency contraception.
    • Barrier methods, like diaphragms and sponges.
    • Patient education and counseling.
    • Sterilization procedures.
    • Any additional contraceptives approved, granted or cleared by the Food and Drug Administration.
  • Plans are also required to cover items and services integral to furnishing preventive services, such as anesthesia for sterilization procedures and pregnancy tests required for certain contraceptives.
  • Insurance providers must continue providing coverage for contraceptives even in states that ban them.

The full July 28 guidance and press release can be found on the Centers for Medicare & Medicaid Services website or at the following links: press release; HHS guidance.

Please visit the BakerHostetler Post-Roe Resource Center or contact the BakerHostetler Dobbs Decision Task Force for ongoing updates and information.