In the wake of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health to overturn the constitutional right to abortion,[1] advocates began concentrating their efforts on ensuring the availability of contraception.[2] However, little attention has been devoted to expanding access through Medicare, which does not currently require coverage of contraceptives without cost-sharing (i.e., at no additional cost to the beneficiary). Most people think of Medicare as the federal health insurance program for people ages 65 and older. While it is true that the vast majority of Medicare beneficiaries are eligible because of their age, individuals under the age of 65 may qualify for Medicare if they receive disability benefits and meet certain other requirements.[3] Among Medicare enrollees who are eligible due to disability, there are over 900,000 women[4] of reproductive age (i.e., ages 15-44).[5] These women face significant barriers to accessing contraceptives and thus are denied comprehensive reproductive healthcare.

 

The types of barriers faced by this group are shaped in part by whether they can receive contraceptive coverage through supplemental insurance. Of the over 900,000 women of reproductive age with Medicare, about 643,000 (71%) have some form of additional coverage.[6] Most of these women receive their supplemental insurance through Medicaid (i.e., the state-based health insurance program that is jointly funded by the federal government and respective states), which they qualify for due to their low income.[7] Unlike Medicare, Medicaid is required to cover certain reproductive health services. Despite this, “dually eligible”[8] disabled women of reproductive age have challenges accessing contraceptives through Medicaid. In particular, the extent of contraceptive coverage through Medicaid depends in part on whether the state expanded Medicaid coverage under the Affordable Care Act (ACA). States that retained traditional Medicaid (of which there are currently ten[9]) are only required to provide “family planning services”—the amount and scope of which is defined by each individual state.[10] This means that states can narrowly define their “family planning services” to provide minimal contraceptives. For example, some states do not cover any forms of emergency contraceptives (i.e., pregnancy prevention methods after sexual intercourse, such as “Plan B”).[11]

 

However, even if a needed contraceptive is covered by Medicaid, the beneficiary can only receive it after a denial from Medicare.[12] This is because “Medicare is the primary payer” for dually eligible individuals, so beneficiaries must first attempt to receive coverage through Medicare and receive a payment denial before trying to obtain coverage through Medicaid.[13] The delays caused by this additional procedural step create another barrier to access and disincentivizes people from seeking contraceptive coverage.

 

The other 264,000 (29%) Medicare-enrolled women of reproductive age are not dually eligible and must rely solely on Medicare.[14] Although there is no federal requirement that Medicare provide free contraceptives, some plans may offer partial or full coverage. The existence or extent of contraceptive coverage varies across the four types of Medicare, which are: Part A (hospital insurance), Part B (medical insurance), Part C (private hospital and medical insurance through the “Medicare Advantage” program), and Part D (prescription drug coverage).[15] Parts A and B – known collectively as “Original Medicare” – do not cover contraception.[16] Some Medicare Advantage plans (Part C) and prescription drug plans (Part D) cover certain contraceptives, however, coverage varies by plan.[17]

 

It is unclear how many of the approximately 264,000 non-dually eligible women have Medicare plans that cover contraceptives. However, recent research on contraceptive utilization suggests that nearly all of their Medicare plans do not cover contraceptives.[18] One study looked at contraceptive use among non-dual Medicare beneficiaries of reproductive age and found that only 3.5% of these enrollees used contraceptives.[19] This is significantly lower than the estimated national average  (45.3%) of disabled women of reproductive age who use contraceptives.[20] More information is needed to determine the extent to which these lower utilization rates are driven by a lack of coverage.

 

Medicare’s failure to provide uniform contraceptive coverage further disadvantages an already highly disadvantaged group. This restriction on contraception is a poverty issue because people with disabilities are much more likely to live in poverty than their non-disabled counterparts.[21] While it is unsurprising that a health insurance program designed for older adults overlooked the contraceptive needs of disabled people, they must not be overlooked by the current movement to safeguard and expand access to contraception in the wake of Dobbs.

[1] Dobbs v. Jackson Women’s Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022).

[2] See, e.g., Elyssa Spitzer, Defining and Defending Contraception Post-Roe, Ctr. for Am. Progress (2022), https://www.americanprogress.org/article/defining-and-defending-contraception-post-roe/ (last visited Oct. 22, 2023).

[3] Social Security Administration, Plan for Medicare, https://www.ssa.gov/medicare (last visited Oct. 22, 2023).

[4] This article uses the terms “woman” and “women” because Medicare data and laws use this language. However, other terms (e.g., pregnancy-capable individuals and birthing people) are increasingly being used because not all people who become pregnant or give birth are women. In the future, data collection and policy advocacy efforts must recognize and account for the range of genders of individuals who can get pregnant and give birth.

[5] Megan Donovan, In Real Life: Federal Restrictions on Abortion Coverage and the Women They Impact, Guttmacher Inst. (2017), https://www.guttmacher.org/gpr/2017/01/real-life-federal-restrictions-abortion-coverage-and-women-they-impact (last visited Oct. 22, 2023).

[6] Id.

[7] Id.

[8] “Dually eligible” refers to people who are enrolled in both Medicare and Medicaid. Dually Eligible Beneficiaries, MACPAC, https://www.macpac.gov/topics/dually-eligible-beneficiaries/ (last visited Oct. 22, 2023).

[9] Status of State Medicaid Expansion Decisions: Interactive Map, KFF (2023), https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/ (last visited Oct. 22, 2023).

[10] Usha Ranji et al., Medicaid Coverage of Family Planning Benefits: Findings from a 2021 State Survey, KFF (2022), https://www.kff.org/womens-health-policy/report/medicaid-coverage-of-family-planning-benefits-findings-from-a-2021-state-survey/ (last visited Oct. 22, 2023).

[11] Medicaid Coverage of Emergency Contraceptives, KFF (2022), https://www.kff.org/womens-health-policy/state-indicator/medicaid-coverage-of-emergency-contraceptives/ (last visited Oct. 22, 2023).

[12] Private and Public Coverage of Contraceptive Services and Supplies in the United States, KFF (2015), https://www.kff.org/womens-health-policy/fact-sheet/private-and-public-coverage-of-contraceptive-services-and-supplies-in-the-united-states/ (last visited Oct. 22, 2023).

[13] Congressional Research Service, Federal Support for Reproductive Health Services: Frequently Asked Questions, (2023), https://sgp.fas.org/crs/misc/R46785.pdf.

[14] Donovan, supra note 5.

[15] Parts of Medicare, Medicare.gov, https://www.medicare.gov/basics/get-started-with-medicare/medicare-basics/parts-of-medicare (last visited Oct. 22, 2023).

[16] Rebecca Joy Stanborough, Does Medicare Cover Birth Control?, Healthline (2021), https://www.healthline.com/health/medicare/does-medicare-cover-birth-control (last visited Oct. 22, 2023).

[17] Id.

[18] J Ellison et al., P055Contraceptive use among medicare enrollees with a disability, 116 Contraception 86 (2022), https://www.sciencedirect.com/science/article/pii/S0010782422003341 (last visited Oct. 22, 2023).

[19] Id.

[20] Id.

[21] Center for Poverty and Inequality Research, How is poverty status related to disability?, (2012), https://poverty.ucdavis.edu/faq/how-poverty-status-related-disability (last visited Oct. 22, 2023).