Erin Sutton, Associate in the Health Care & Life Sciences practice, in the firm’s Chicago office, was quoted in Law360, in “3 Things to Know About Proposed OTC Contraception Regs,” by Kellie Mejdrich. (Read the full version – subscription required.)
Following is an excerpt:
The Biden administration's proposal to require private health insurers to pick up the cost of over-the-counter contraception could increase access for an estimated 52 million women.
The U.S. Department of Labor, the U.S. Department of Health and Human Services and the U.S. Department of the Treasury jointly unveiled proposed rules Monday that would force private health insurers to cover the cost of OTC contraception items, including the no-prescription daily birth control pill, male condoms and the morning-after pill. …
Here are three things to know about the newly proposed regulations. …
Legal Challenges Expected
In addition to watching for the rules' official publication in the Federal Register, attorneys said they're keeping an eye out for eventual legal challenges that might halt future implementation of the coverage expansion. The agencies said in a Federal Register posting online Wednesday that official publication of the proposal is scheduled for Monday.
Fueling the potential for legal challenges is that the Supreme Court did away with the so-called Chevron doctrine via decisions in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce in June. Under Chevron, the justices had held that if Congress hadn't directly "spoken to the precise question at issue," courts must defer to a federal agency's interpretation of the law.
There's also the possibility that additional religious objections to things like the morning-after pill might spark a challenge to the contraception policies, attorneys said.
Erin Sutton, an associate with Epstein Becker Green in the firm's healthcare and life sciences practice, said she thought the agencies' proposed rules were "careful" to point out that the proposed policy changes wouldn't modify conscience protections for employers, plans and issuers under other previously finalized rules that allow them to obtain exemptions from providing contraception.
"Nevertheless, I think this is a topic that … we can always expect to be litigated," Sutton said. "It's certainly a contentious topic."
