Nov. 20, 2013 at 12:18 PM ET
A majority of women are unaware that birth control is available for free from health insurance plans under Obamacare—even as the Supreme Court is likely to soon consider legal fights over that law.
And while lack of awareness about the so-called "contraception mandate" might reflect overall, widespread confusion about Obamacare's details, an expert who has been following the issue said it also reflects the fact that pharmaceutical companies aren't advertising that their contraceptives could be effectively obtained free by many women.
Kristen McNeill has tracked women's knowledge of the contraception mandate for more than a year for her company, Phoenix Marketing International, which has a health-care division.
Three separate surveys by Phoenix this year found that fewer than 50 percent of women 18 to 45 knew that the Affordable Care Act requires health insurance plans to provide free contraceptives to women for birth control methods approved by the Food and Drug Administration.
The percentage of women who knew contraception such as birth-control pills, diaphragms, IUDs, vaginal rings and progestin injections would be free was 44 percent in the first three months of 2013, and 45 percent in April to June—a statistically insignificant difference, McNeill noted. Each survey questioned more than 3,000 women.
But a Phoenix survey done in the third quarter of this year found that awareness "is going up significantly," McNeill said.
In the July -September period, 48 percent of the women surveyed said they knew birth control was free from health insurance plans.
McNeill attributed that increase in awareness to the fact that the contraception mandate has been around since Aug. 1, 2012. She said the survey found that women are hearing about the mandate primarily from Internet sources, friends and relatives, and doctors and pharmacists.
Also, over the summer there was increased publicity about the ACA and its various details because of the approaching Oct. 1 launch of the government-run health insurance markets.
Still, even with the upward tick in awareness, McNeill said, overall awareness remains "relatively low."
"I would say that if only half the women out there know about it, that would seem pretty low," McNeill said.
Even among the 48 percent who know about the contraception mandate, there is widespread ignorance about what is covered by it, Phoenix's most recent survey found.
Sixty-seven percent thought generic brand oral contraceptives were covered, but just 40 percent thought brand-name oral contraceptives were covered, as they are. Just 24 percent knew that non-hormonal IUDs were covered, the survey found.
"An IUD can cost $1,000," McNeill noted. "It could be free."
Despite the possibility of increasing sales by highlighting the contraception mandate, there have been few ads by pharmaceutical companies pointing out the mandate to would-be customers.
McNeill said her company found that just two brand-name contraceptives, Essure and Mirena, which are both sold by Bayer, ran ads highlighting the contraception mandate. And both ads ran only online, she said. Both have ended, according to Bayer.
"Why aren't the pharma companies taking advantage of this opportunity that's being handed to them?" McNeill asked.
Asked about its relatively modest ad campaign, a Bayer spokeswoman said: "We believe that raising awareness of contraception health care insurance coverage under the Affordable Care Act is important for all women. For this reason, we ran digital advertisements for some of our contraception products earlier this year." The spokeswoman declined to comment further when asked why Bayer hadn't been more aggressive in its advertising.
A spokeswoman for Merck, which sells the NuvaRing contraceptive device, said, "We're not currently doing any advertising" featuring the mandate, but noted "we've started to roll out more patient educational material through physicians' offices."
The Merck spokeswoman added, "We have plans to do more in 2014." But she said she did not know if that would include ads for the product.
An executive at another pharma company that sells contraceptives questioned whether his or other manufacturers would find it cost-effective to run ads that specifically cite the mandate, noting that in his company's case, birth control is a small part of its overall business.
Even as pharma companies are essentially ignoring the birth control mandate, and as many women remain in the dark about it, the Supreme Court is likely to start talking about it soon, according to legal experts.
"You can put your money on that," said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center in Washington, a think tank/law firm/action center.
Wydra is sure the Supreme Court will weigh in because in recent months several federal appellate circuits have issued conflicting rulings on the contraception mandate. Such dissension between circuits significantly increases the likelihood that the Supreme Court would agree to hear appeals of those decisions to avoid confusion about what the law should be.
Earlier this month, the 7th U.S. Circuit Court of Appeals—which covers Indiana, Illinois and Wisconsin—blocked the contraception mandate on a challenge from a company that said the mandate infringed on religious freedom. The ruling echoed decisions in the 10th Circuit and in the District of Columbia's circuit. But two other circuits, the 3rd and the 6th, have rejected challenges to the mandate.
Wydra's organization has filed a friend of the court brief asking the Supreme Court to hear an appeal of the 10th Circuit decision, which was based on challenges by three companies.
The high court could decide within weeks whether to take appeals of the various decisions, according to Wydra, whose group supports the contraception mandate.
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