At a moment when half of US states are poised to ban or severely restrict abortion services, the last pill for women trying to prevent unwanted pregnancy lies in the unlikely leadership of two private equity firms whose diverse Investment portfolios Italian food, vineyard management and cough medicine for children.
Foundation Consumer Healthcare, Kelso and Juggernaut’s company that sells Plan B, has managed to aggressively market the product while staying under the radar of abortion advocates and Republican lawmakers who denigrate it as another form of abortion.
But the company’s leadership — and women’s continued access to Plan B — have become pressing concerns as the religious belief that life begins before a fertilized egg implants in the uterus has been ramped up among Republican lawmakers in state capitals and gaining traction in Congress as a legitimate legal standard. If the Supreme Court issues a leaked draft decision overturning Roe v. Wade cements, without specifically citing the medical standard of beginning a pregnancy — that is, after implantation — that Republican-controlled lawmakers could declare Plan B and intrauterine devices, or IUDs, as abortifacients.
States enacting laws to confer “personal rights” on fertilized eggs, embryos and fetuses would open a new frontier in legislation governing the options available to pregnant and non-pregnant women. States considering such a move include Alabama, Missouri and Kansas.
Complicating this political battle, women’s health advocates say, is that the Consumer Healthcare Foundation and the FDA have failed to correct outdated product label wording, leading to widespread misinformation about how Plan B works.
However, this packaging language has been used to justify regulations in at least nine states that exclude Plan B from state family planning programs and birth control requirements, or that allow pharmacists to refuse to sell Plan B on moral grounds.
The US Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores cited the FDA’s Plan B website, which ruled that the obligation of family businesses with religious beliefs to pay for birth control health insurance coverage , violates a federal law protecting freedom of religion.
Similarly, a bill before Congress that would require Department of Veterans Affairs agencies to fund the cost of all forms of contraception for female veterans was blocked by opposition to Plan B’s inclusion. “The Plan B pill kills a baby in the womb once a woman is already pregnant,” US Rep. Marjorie Taylor Greene (R-Ga.) erroneously declared during a debate. “The VA should not pay for abortions.”
European authorities demanded that the language be removed from Plan B packaging sold in these countries in 2015, and this was opposed by the International Federation of Gynecology and Obstetrics and American medical associations.
A similar label change in the US would require the Consumer Healthcare Foundation to file an application with the FDA — an action that women’s health advocates say is long overdue.
“The FDA isn’t going to change it unless the companies come up with the data and request a label change,” said Susan Wood, professor of public health policy at George Washington University and former director of women’s health at the FDA. Updating the label would be “easy because there is human data showing it works before ovulation.”
“It’s the company’s responsibility,” she added.
Foundation Consumer Healthcare, in an email response to a list of questions from KHN, declined to be interviewed and said it would not comment on sales figures, discussions with the FDA, or investment plans.
“FCH’s mission is and always has been to increase the awareness and availability of Plan B One-Step® emergency contraception for women across the country,” the company wrote. “We are working with a variety of partners to ensure everyone understands how the product works and when it should be taken, and with retailers to ensure the product is available in all major retail locations.”
The FDA also declined to comment, citing regulations that protect “the confidentiality of commercial information.”
Encouraged by the Supreme Court’s leaked draft decision on Roe and its earlier decision to let Texas’ six-week abortion ban go into effect, lawmakers in several Republican-led states are already openly considering bans on emergency contraception and IUDs.
Although there was no scientific evidence to support this claim, the company agreed to list the post-fertilization mechanism on the packaging in order to gain approval for use.
Foundation Consumer Healthcare’s investment in Plan B is difficult to assess: private equity firms are required to disclose limited information and to conceal their businesses and interests.
However, pharmaceutical industry analysts say the business is clearly profitable. Emergency contraception is relatively inexpensive to manufacture, said Samantha Miller, co-CEO of Cadence Health, a biopharmaceutical company developing over-the-counter birth control pills. And the customers are predominantly young women who buy the pill without a prescription, even if they – or their parents – have health insurance.
Private equity firms typically raise funds from institutional investors, often with an emphasis on generating short-term revenue. When Kelso and Juggernaut Capital acquired Plan B in 2017, the campaign to end federal abortion laws, culminating after decades of legal challenges, would have made buying the nation’s most popular emergency contraception a tempting option. “Private equity sees an opportunity wherever vulnerable people are involved,” said Eileen Appelbaum, co-director of the Center for Economic and Policy Research.
“If clients buy Plan B, it could be very good for their investors, regardless of how comfortable they are with Plan B,” said Eileen O’Grady of the Private Equity Stakeholder Project, which studies the convoluted holdings of private equity firms.
Miller and other industry experts say Foundation is able to maintain its $45 median price for Plan B because of its market dominance. Cheaper generic emergency contraceptives are mostly available online, said Dima Qato, an associate professor of clinical pharmacy at the University of Southern California. But Plan B’s distribution deals with national pharmacies, Walmart, and Target have largely locked out competitors.
“People don’t use the generics, and not many places carry them,” Qato said. “You want to make sure it’s effective. There is a fondness for the brand.”
However, should a Supreme Court decision allow states to criminalize abortion and certain contraceptives, Kelso and Juggernaut’s investment would certainly be at risk. States monitor pharmacy laws, leaving lawmakers plenty of leeway to allow pharmacies to refuse to dispense emergency contraceptives.
“Texas and other states will claim that this resembles an abortion pill,” Qato said, “and they will say you can’t sell it.”
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the three major operational programs of the KFF (Kaiser Family Foundation). KFF is a donated non-profit organization that provides information on health issues to the nation.