Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1696592383002.pdf (United States)
II 117TH CONGRESS 2D SESSION S. 4557 To protect a person’s ability to access contraceptives and to engage in contra- ception, and to protect a health care provider’s ability to provide contra- ceptives, contraception, and information related to contraception.
IN THE SENATE OF THE UNITED STATES JULY 19, 2022 Mr. MARKEY (for himself, Ms. HIRONO, Ms. DUCKWORTH, Mr. MENENDEZ, Mr. SANDERS, Ms. BALDWIN, Ms. WARREN, Mr. MURPHY, Mr. WHITE- HOUSE, Mr. CARPER, Mr. VAN HOLLEN, Mr. BROWN, Mr. BLUMENTHAL, Mrs. GILLIBRAND, Ms. KLOBUCHAR, Ms. CANTWELL, Ms. SMITH, Mrs. SHAHEEN, Mr. REED, Mrs. FEINSTEIN, Mr. BOOKER, Mr. LUJA´N, Ms. STABENOW, Mr. KAINE, Mr. HEINRICH, Mr. MERKLEY, Mr. PADILLA, Mr. WARNER, Ms. ROSEN, and Mr. HICKENLOOPER) introduced the fol- lowing bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To protect a person’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.
Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assembled, SECTION 1.

SHORT TITLE.

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

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2.

DEFINITIONS.
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 legally marketed under the Federal Food, Drug, and Cosmetic Act, such as oral contraceptives, long-acting reversible contraceptives, emergency contraceptives, internal and external condoms, injectables, vaginal barrier methods, transdermal patches, and vaginal rings, or other contraceptives.
(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, with respect to a State, any entity or individual (including any physi- cian, certified nurse-midwife, nurse, nurse practi- tioner, physician assistant, and pharmacist) that is 26 •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 3 licensed or otherwise authorized by the State to pro- vide health care services.
(5) STATE.—The term ‘‘State’’ includes each of the 50 States, the District of Columbia, the Com- monwealth of Puerto Rico, and each territory and possession of the United States, and any 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.

FINDINGS.
SEC.

3.

FINDINGS.

Congress finds the following: (1) The right to contraception is a fundamental right, central to a person’s privacy, health, wellbeing, dignity, liberty, equality, and ability to participate in the social and economic life of the Na- tion.

(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.
(4) In Eisenstadt v. Baird (405 U.S. 438 (1972)), the Supreme Court confirmed the constitu- •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 4 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.
(9) Contraception is key to sexual and repro- ductive health.
Contraception is critical to pre- venting unintended pregnancy, and many contracep- •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 5 tives are highly effective in preventing and treating a wide array of often severe medical conditions and decrease the risk of certain cancers.
(10) Family planning improves 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.
(12) The right to make personal decisions about contraceptive use is important for all Americans, and is especially critical for historically marginalized groups, including Black, indigenous, and other peo- ple of color; immigrants; LGBTQ people; people with disabilities; people with low incomes; and people liv- ing in rural and underserved areas.
Many people who are part of these marginalized groups already face barriers—exacerbated by social, political, eco- nomic, and environmental inequities—to comprehen- sive health care, including reproductive health care, •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 6 that reduce their ability to make decisions about their health, families, and lives.
(13) 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.

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

(15) 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.
(16) 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.
•S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 7 (17) Congress has used its authority in the past to protect and expand access to contraception infor- mation, products, and services.

(18) 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.

(19) In 1972, Congress required the Medicaid program to cover family planning services and sup- plies, and the Medicaid program currently accounts for 75 percent of Federal funds spent on family planning.
(20) 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.
(21) Despite the clearly established constitu- tional right to contraception, access to contracep- tives, including emergency contraceptives and long- •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 8 acting reversible contraceptives, has been obstructed across the United States in various ways by Federal and State governments.
(22) As of 2022, at least 4 States tried to ban access to some or all contraceptives by restricting access to public funding for these products and serv- ices.

Furthermore, Arkansas, Mississippi, Missouri, and Texas have infringed on people’s ability to ac- cess their contraceptive care by violating the free choice of provider requirement under the Medicaid 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, with laws in 12 States as of the date of introduction of this Act spe- cifically allowing health care providers to refuse to provide services related to contraception.
(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) In June 2022, Justice Thomas, in his con- curring opinion in Dobbs v. Jackson Women’s Health Organization (597 U.S. ll (2022)), stated •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 9 that the Supreme Court ‘‘should reconsider all of this Court’s substantive due process precedents, in- cluding Griswold, Lawrence, and Obergefell’’ and that the Court has ‘‘a duty to correct the error es- tablished 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.

PERMITTED SERVICES.


(a) GENERAL RULE.—A person has a statutory right under this Act to obtain contraceptives and to engage in contraception, and a health care provider has a cor- responding right to provide contraceptives, contraception, and information 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— •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 10 (1) expressly, effectively, implicitly, or as imple- mented singles out the provision of contraceptives, contraception, or contraception-related information; health care providers who provide contraceptives, contraception, or contraception-related information; or facilities in which contraceptives, contraception, 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 patient’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.
SEC.

5.

APPLICABILITY AND PREEMPTION.
(a) IN GENERAL.— (1) GENERAL APPLICATION.—Except as stated under subsection (b), this Act supersedes and ap- plies to the law of the Federal Government and each •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 11 State government, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted before or after the date of en- actment of this Act, and neither the Federal Govern- ment nor any State government shall administer, implement, or enforce any law, rule, regulation, standard, or other provision having the force and ef- fect of law that conflicts with any provision of this Act, notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993 (42 U.S.C.
2000bb et seq.).

(2) SUBSEQUENTLY ENACTED FEDERAL LEGIS- LATION.—Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such applica- tion by reference to this Act.
(b) 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 •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 12 U.S.C.

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

300gg–13).
300gg–13).

(c) 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 7, this Act shall also apply to, and may be raised as a defense by, such an individual or entity.

(d) EFFECTIVE DATE.—This Act shall take effect immediately upon the date of enactment of this Act.

SEC.

6.

RULES OF CONSTRUCTION.


(a) IN GENERAL.—In interpreting the provisions of this Act, a court shall liberally construe such provisions to effectuate the purposes of the Act.
(b) RULE OF CONSTRUCTION.—Nothing in this Act 15 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 person who, by operation of a •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 13 provision of Federal or State law, is permitted to imple- ment or enforce a limitation or requirement that violates section 4 shall be considered a government official for pur- poses of this Act.

SEC.

7.

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 a person described in section 6(c)) that implements or enforces a limitation or require- ment that violates, section 4.

The court shall hold unlawful and set aside the limitation or requirement if it is in viola- tion 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 a person described in section 6(c)) that imple- ments or enforces a limitation or requirement that violates, section 4.
The court shall hold unlawful and set aside the limitation or requirement if it is in vio- lation of this Act.
•S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 14 (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 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, or permanent injunctive 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 non-frivolous 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 a person described in section 6(c)) who is per- mitted to implement or enforce any limitation or require- ment that violates section 4 shall be immune under the Tenth Amendment to the Constitution of the United •S 4557 IS B O J _ $ $ h t i w D O R P 2 X 7 W V L J K S D n o s n n b p i 15 States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an action in a Federal or State court of competent jurisdic- tion challenging that limitation or requirement.
SEC.

8.

SEVERABILITY.

If any provision of this Act, or the application of such provision to any person, entity, government, or cir- cumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to all other 10 persons, entities, governments, or circumstances, shall not 11 be affected thereby.
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