Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1696592365438.pdf (United States)
II 118TH CONGRESS 1ST SESSION S. 1999 To protect an individual’s ability to access contraceptives and to engage in contraception and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.
IN THE SENATE OF THE UNITED STATES JUNE 14, 2023 Mr. MARKEY (for himself, Ms. HIRONO, Ms. DUCKWORTH, Mr. MERKLEY, Ms. WARREN, Mr. PADILLA, Mr. BLUMENTHAL, Mr. VAN HOLLEN, Mr. SCHATZ, Ms. CANTWELL, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Mr. WHITEHOUSE, Mr. WELCH, Ms. STABENOW, Mrs. MURRAY, Ms. BALD- WIN, Mr. HEINRICH, Mr. SANDERS, Mr. CARPER, Mr. REED, Ms. COR- TEZ MASTO, Mr. MENENDEZ, Mr. KAINE, Mr. WYDEN, Mr. HICKENLOOPER, Mr. CARDIN, Mr. WARNOCK, Mr. BROWN, Mr. FETTERMAN, Mrs. SHAHEEN, Mr. BENNET, Ms. SMITH, Mr. BOOKER, Mr. LUJA´N, Mr. WARNER, and Ms. ROSEN) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To protect an individual’s ability to access contraceptives and to engage in contraception and to protect a health care provider’s ability to provide contraceptives, contra- ception, and information related to contraception.
1 2 Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assembled SECTION 1.

SHORT TITLE.

2 This Act may be cited as the ‘‘Right to Contraception Act’’.

SEC.

2.

DEFINITIONS.


In this Act: (1) CONTRACEPTION.—The term ‘‘contracep- tion’’ means an action taken to prevent pregnancy, including the use of contraceptives or fertility-aware- ness-based methods and sterilization procedures.
(2) CONTRACEPTIVE.—The term ‘‘contracep- tive’’ means any drug, device, or biological product intended for use in the prevention of pregnancy, whether specifically intended to prevent pregnancy or for other health needs, that is approved, cleared, authorized, or licensed under section 505, 510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.

355, 360(k), 360c(f)(2), 360e, 360bbb–3) or section 351 of the Public Health Service Act (42 U.S.C.

262).
262).

(3) GOVERNMENT.—The term ‘‘government’’ includes each branch, department, agency, instru- mentality, and official of the United States or a State.
(4) HEALTH CARE PROVIDER.—The term ‘‘health care provider’’ means any entity or indi- vidual (including any physician, certified nurse-mid- 26 •S 1999 IS wife, nurse, nurse practitioner, physician assistant, and pharmacist) that is licensed or otherwise author- ized by a State to provide health care services.
(5) STATE.—The term ‘‘State’’ includes each of the 50 States, the District of Columbia, the Com- monwealth of Puerto Rico, each territory and pos- session of the United States, and each Indian Tribe (as defined in section 4 of the Indian Self-Deter- mination and Education Assistance Act (25 U.S.C.

5304)), and any political subdivision of any of the foregoing, including any unit of local government, such as a county, city, town, village, or other general purpose political subdivision of a State.

SEC.

3.
SEC.

3.

FINDINGS.

Congress finds the following: (1) The right to contraception is a fundamental right, central to an individual’s privacy, health, well- being, dignity, liberty, equality, and ability to par- ticipate in the social and economic life of the Nation.

(2) The Supreme Court has repeatedly recog- nized the constitutional right to contraception.
(3) In Griswold v. Connecticut (381 U.S. 479 (1965)), the Supreme Court first recognized the con- stitutional right for married people to use contracep- tives.
•S 1999 IS (4) In Eisenstadt v. Baird (405 U.S. 438 (1972)), the Supreme Court confirmed the constitu- tional right of all people to legally access contracep- tives regardless of marital status.
(5) In Carey v. Population Services Inter- national (431 U.S. 678 (1977)), the Supreme Court affirmed the constitutional right to contraceptives for minors.

(6) The right to contraception has been repeat- edly recognized internationally as a human right.

The United Nations Population Fund has published several reports outlining family planning as a basic human right that advances women’s health, eco- nomic empowerment, and equality.
(7) Access to contraceptives is internationally recognized by the World Health Organization as ad- vancing other human rights such as the right to life, liberty, expression, health, work, and education.

(8) Contraception is safe, essential health care, and access to contraceptive products and services is central to people’s ability to participate equally in economic and social life in the United States and globally.

Contraception allows people to make deci- sions about their families and their lives.
•S 1999 IS (9) Contraception is key to sexual and repro- ductive health.
Contraception is critical to pre- venting unintended pregnancy, and many contracep- tives are highly effective in preventing and treating a wide array of medical conditions and decrease the risk of certain cancers.

(10) Contraception has been associated with improved health outcomes for women, their families, and their communities and reduces rates of maternal and infant mortality and morbidity.
(11) The United States has a long history of reproductive coercion, including the childbearing forced upon enslaved women, as well as the forced sterilization of Black women, Puerto Rican women, indigenous women, immigrant women, and disabled women, and reproductive coercion continues to occur.

This history also includes the coercive testing of contraceptive pills on women and girls in Puerto Rico.
(12) The right to make personal decisions about contraceptive use is important for all Americans, and is especially critical for historically marginalized groups, including— (A) Black, indigenous, and other people of color; •S 1999 IS (B) immigrants; (C) LGBTQ+ people; (D) people with disabilities; (E) people paid low wages; and (F) people living in rural and underserved areas.
(13) Many people who are part of the marginalized groups described in paragraph (12) al- ready face barriers, exacerbated by social, political, economic, and environmental inequities, to com- prehensive health care, including reproductive health care, that reduce their ability to make decisions about their health, families, and lives.
(14) State and Federal policies governing phar- maceutical and insurance policies affect the accessi- bility of contraceptives and the settings in which contraception services are delivered.

(15) People engage in interstate commerce to access contraception services.

(16) To provide contraception services, health care providers employ and obtain commercial serv- ices from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.
•S 1999 IS (17) Congress has the authority to enact this Act to protect access to contraception pursuant to— (A) its powers under the Commerce Clause of section 8 of article I of the Constitution of the United States; (B) its powers under section 5 of the Four- teenth Amendment to the Constitution of the United States to enforce the provisions of sec- tion 1 of the Fourteenth Amendment; and (C) its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.
(18) Congress has used its authority in the past to protect and expand access to contraception infor- mation, products, and services.

(19) In 1970, Congress established the family planning program under title X of the Public Health Service Act (42 U.S.C.

300 et seq.

), the only Fed- eral grant program dedicated to family planning and related services, providing access to information, products, and services for contraception.
(20) In 1972, Congress required the Medicaid program to cover family planning services and sup- plies and the Medicaid program currently accounts •S 1999 IS for 75 percent of Federal funds spent on family planning.
(21) In 2010, Congress enacted the Patient Protection and Affordable Care Act (Public Law 111–148) (referred to in this section as the ‘‘ACA’’).

Among other provisions, the ACA included provi- sions to expand the affordability and accessibility of contraception by requiring health insurance plans to provide coverage for preventive services with no pa- tient cost-sharing.
(22) As of June 2023, at least 4 States tried to ban access to some or all contraceptives by re- stricting access to public funding for these products and services.

Furthermore, Arkansas, Mississippi, Missouri, and Texas have infringed on people’s abil- ity to access their contraceptive care by violating the free choice of provider requirement under the Med- icaid program.
(23) Providers’ refusals to offer contraceptives and information related to contraception based on their own personal beliefs impede patients from ob- taining their preferred method of contraception, with laws in 12 States as of the date of introduction of this Act specifically allowing health care providers to refuse to provide services related to contraception.
•S 1999 IS (24) States have attempted to define abortion expansively so as to include contraceptives in State bans on abortion and have also restricted access to emergency contraception.
(25) Justice Thomas, in his concurring opinion in Dobbs v. Jackson Women’s Health Organization (142 S. Ct. 2228 (2022)), stated that the Supreme Court ‘‘should reconsider all of this Court’s sub- stantive due process precedents, including Griswold, Lawrence, and Obergefell’’ and that the Court has ‘‘a duty to correct the error established in those precedents’’ by overruling them.
(26) In order to further public health and to combat efforts to restrict access to reproductive health care, congressional action is necessary to pro- tect access to contraceptives, contraception, and in- formation related to contraception for everyone, re- gardless of actual or perceived race, ethnicity, sex (including gender identity and sexual orientation), income, disability, national origin, immigration sta- tus, or geography.

SEC.

4.

PURPOSES.
The purposes of this Act are— (1) to provide a clear and comprehensive right to contraception; •S 1999 IS 10 (2) to permit individuals to seek and obtain contraceptives and engage in contraception, and to permit health care providers to facilitate that care; and (3) to protect an individual’s ability to make de- cisions about their body, medical care, family, and life’s course, and thereby protect the individual’s ability to participate equally in the economic and so- cial life of the United States.
SEC.

5.

PERMITTED SERVICES.

(a) IN GENERAL.—An individual has a statutory right under this Act to obtain contraceptives and to volun- tarily engage in contraception, free from coercion, and a health care provider has a corresponding right to provide contraceptives, contraception, and information, referrals, and services related to contraception.
(b) LIMITATIONS OR REQUIREMENTS.—The statu- tory rights specified in subsection (a) shall not be limited or otherwise infringed through any limitation or require- ment that— 21 22 23 24 (1) expressly, effectively, implicitly, or as-imple- mented singles out— (A) the provision of contraceptives, contra- ception, or contraception-related information; •S 1999 IS 11 (B) health care providers who provide con- traceptives, contraception, or contraception-re- lated information; or (C) facilities in which contraceptives, con- traception, or contraception-related information is provided; and (2) impedes access to contraceptives, contracep- tion, or contraception-related information.
(c) EXCEPTION.—To defend against a claim that a limitation or requirement violates a health care provider’s or individual’s statutory rights under subsection (b), a party must establish, by clear and convincing evidence, that— (1) the limitation or requirement significantly advances access to contraceptives, contraception, and information related to contraception; and (2) access to contraceptives, contraception, and information related to contraception or the health of patients cannot be advanced by a less restrictive al- ternative measure or action.
(d) RULE OF CONSTRUCTION.—Nothing in this sec- tion shall be construed to limit the authority of the Sec- retary of Health and Human Services, acting through the Commissioner of Food and Drugs, to approve, clear, au- thorize, or license contraceptives under section 505, •S 1999 IS 12 510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
355, 360(k), 360c(f)(2), 360e, 360bbb–3) or section 351 of the Public Health Serv- ice Act (42 U.S.C.

262), or for the Federal Government to enforce such approval, clearance, authorization, or li- censure.

SEC.

6.

APPLICABILITY AND PREEMPTION.


(a) GENERAL APPLICATION.— (1) IN GENERAL.—Except as provided in sub- section (c), this Act supersedes and applies to the law of the Federal Government and each State, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted be- fore or after the date of enactment of this Act.
(2) PROHIBITION.—Neither the Federal Gov- ernment nor any State may administer, implement, or enforce any law, rule, regulation, standard, or other provision having the force and effect of law in a manner that— (A) prohibits or restricts the sale, provi- sion, or use of any contraceptives; (B) prohibits or restricts any individual from aiding another individual in voluntarily obtaining or using any contraceptives or contra- ceptive methods; or •S 1999 IS 13 (C) exempts any contraceptives or contra- ceptive methods from any other generally appli- cable law in a way that would make it more dif- ficult to sell, provide, obtain, or use such con- traceptives or contraceptive methods.
(3) RELATIONSHIP WITH OTHER LAWS.—This Act applies notwithstanding any other provision of Federal law, including the Religious Freedom Res- toration Act of 1993 (42 U.S.C.

2000bb et seq.).

(b) SUBSEQUENTLY ENACTED FEDERAL LEGISLA- TION.—Federal law enacted after the date of enactment of this Act is subject to this Act, unless such law explicitly excludes such application by reference to this Act.
(c) LIMITATIONS.—The provisions of this Act shall not supersede or otherwise affect any provision of Federal law relating to coverage under (and shall not be construed as requiring the provision of specific benefits under) group health plans or group or individual health insurance cov- erage or coverage under a Federal health care program (as defined in section 1128B(f) of the Social Security Act (42 U.S.C.
1320a–7b(f))), including coverage provided under section 1905(a)(4)(C) of the Social Security Act (42 U.S.C.

1396d(a)(4)(C)) and section 2713 of the Public Health Service Act (42 U.S.C.

300gg–13).
•S 1999 IS 14 (d) DEFENSE.—In any cause of action against an in- dividual or entity who is subject to a limitation or require- ment that violates this Act, in addition to the remedies specified in section 8, this Act shall also apply to, and may be raised as a defense by, such an individual or entity.
(e) EFFECTIVE DATE.—This Act shall take effect im- mediately upon the date of enactment of this Act.

SEC.

7.

RULES OF CONSTRUCTION.

(a) IN GENERAL.—In interpreting the provisions of this Act, a court shall liberally construe such provisions to effectuate the purposes described in section 4.
(b) RULE OF CONSTRUCTION.—Nothing in this Act 13 shall be construed— (1) to authorize any government to interfere with a health care provider’s ability to provide con- traceptives or information related to contraception or a patient’s ability to obtain contraceptives or to engage in contraception; or (2) to permit or sanction the conduct of any sterilization procedure without the patient’s vol- untary and informed consent.
(c) OTHER INDIVIDUALS CONSIDERED AS GOVERN- MENT OFFICIALS.—Any individual who, by operation of a provision of Federal or State law, is permitted to imple- ment or enforce a limitation or requirement that violates •S 1999 IS section 5 shall be considered a government official for pur- 15 poses of this Act.

SEC.

8.

ENFORCEMENT.


(a) ATTORNEY GENERAL.—The Attorney General may commence a civil action on behalf of the United States against any State that violates, or against any gov- ernment official (including an individual described in sec- tion 7(c)) that implements or enforces a limitation or re- quirement that violates, section 5.

The court shall hold unlawful and set aside the limitation or requirement if it 11 is in violation of this Act.
(b) PRIVATE RIGHT OF ACTION.— (1) IN GENERAL.—Any individual or entity, in- cluding any health care provider or patient, ad- versely affected by an alleged violation of this Act, may commence a civil action against any State that violates, or against any government official (includ- ing an individual described in section 7(c)) that im- plements or enforces a limitation or requirement that violates, section 5.
The court shall hold unlaw- ful and set aside the limitation or requirement if it is in violation of this Act.
(2) HEALTH CARE PROVIDER.—A health care provider may commence an action for relief on its own behalf, on behalf of the provider’s staff, and on •S 1999 IS 16 behalf of the provider’s patients who are or may be adversely affected by an alleged violation of this Act.
(c) EQUITABLE RELIEF.—In any action under this section, the court may award appropriate equitable relief, including temporary, preliminary, and permanent injunc- tive relief.

(d) COSTS.—In any action under this section, the court shall award costs of litigation, as well as reasonable attorney’s fees, to any prevailing plaintiff.

A plaintiff shall not be liable to a defendant for costs or attorney’s fees in any nonfrivolous action under this section.
(e) JURISDICTION.—The district courts of the United States shall have jurisdiction over proceedings under this Act and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administra- tive or other remedies that may be provided for by law.
(f) ABROGATION OF STATE IMMUNITY.—Neither a State that enforces or maintains, nor a government official (including an individual described in section 7(c)) who is permitted to implement or enforce any limitation or re- quirement that violates section 5 shall be immune under the Tenth Amendment to the Constitution of the United States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an •S 1999 IS 17 action in a Federal or State court of competent jurisdic- tion challenging that limitation or requirement.
SEC.

9.

SEVERABILITY.

If any provision of this Act, or the application of such provision to any individual, entity, government, or cir- cumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to all other individuals, entities, governments, or circumstances, shall not be affected thereby.
•S 1999 IS