II 

117TH CONGRESS 

2D SESSION S. 4612 

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. 

IN THE SENATE OF THE UNITED STATES 

JULY 26, 2022 

Mr. MARKEY (for himself, Ms. HIRONO, Ms. DUCKWORTH, Mr. MERKLEY, Mr. 

BLUMENTHAL, Mr. WARNER, Mr. BENNET, Ms. KLOBUCHAR, Mr. DURBIN, Ms. WARREN, Mr. SCHATZ, Mr. MURPHY, Mr. WHITEHOUSE, Mrs. 

MURRAY, Ms. BALDWIN, Mr. REED, Mrs. FEINSTEIN, Mr. 

HICKENLOOPER, Ms. CORTEZ MASTO, Mr. WARNOCK, Ms. CANTWELL, 

and Mr. OSSOFF) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Right to Contraception 

5 Act’’. 


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1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) CONTRACEPTION.—The term ‘‘contracep4 tion’’ means an action taken to prevent pregnancy, 

5 including the use of contraceptives or fertility-aware6 ness based methods, and sterilization procedures. 

7 (2) CONTRACEPTIVE.—The term ‘‘contracep8 tive’’ means any drug, device, or biological product 

9 intended for use in the prevention of pregnancy, 

10 whether specifically intended to prevent pregnancy 

11 or for other health needs, that is legally marketed 

12 under the Federal Food, Drug, and Cosmetic Act, 

13 such as oral contraceptives, long-acting reversible 

14 contraceptives, emergency contraceptives, internal 

15 and external condoms, injectables, vaginal barrier 

16 methods, transdermal patches, and vaginal rings, or 

17 other contraceptives. 

18 (3) GOVERNMENT.—The term ‘‘government’’ 

19 includes each branch, department, agency, instru20 mentality, and official of the United States or a 

21 State. 

22 (4) HEALTH CARE PROVIDER.—The term 

23 ‘‘health care provider’’ means, with respect to a 

24 State, any entity or individual (including any physi25 cian, certified nurse-midwife, nurse, nurse practi26 tioner, physician assistant, and pharmacist) that is 


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1 licensed or otherwise authorized by the State to pro2 vide health care services. 

3 (5) STATE.—The term ‘‘State’’ includes each of 

4 the 50 States, the District of Columbia, the Com5 monwealth of Puerto Rico, and each territory and 

6 possession of the United States, and any subdivision 

7 of any of the foregoing, including any unit of local 

8 government, such as a county, city, town, village, or 

9 other general purpose political subdivision of a 

10 State. 

11 SEC. 3. FINDINGS. 

12 Congress finds the following: 

13 (1) The right to contraception is a fundamental 

14 right, central to a person’s privacy, health, well15 being, dignity, liberty, equality, and ability to par16 ticipate in the social and economic life of the Nation. 

17 (2) The Supreme Court has repeatedly recog18 nized the constitutional right to contraception. 

19 (3) In Griswold v. Connecticut (381 U.S. 479 

20 (1965)), the Supreme Court first recognized the con21 stitutional right for married people to use contracep22 tives. 

23 (4) In Eisenstadt v. Baird (405 U.S. 438 

24 (1972)), the Supreme Court confirmed the constituVerDate Sep 11 2014 03:48 Jul 30, 2022 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4612.IS S4612

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1 tional right of all people to legally access contracep2 tives regardless of marital status. 

3 (5) In Carey v. Population Services Inter4 national (431 U.S. 678 (1977)), the Supreme Court 

5 affirmed the constitutional right to contraceptives 

6 for minors. 

7 (6) The right to contraception has been repeat8 edly recognized internationally as a human right. 

9 The United Nations Population Fund has published 

10 several reports outlining family planning as a basic 

11 human right that advances women’s health, eco12 nomic empowerment, and equality. 

13 (7) Access to contraceptives is internationally 

14 recognized by the World Health Organization as ad15 vancing other human rights such as the right to life, 

16 liberty, expression, health, work, and education. 

17 (8) Contraception is safe, essential health care, 

18 and access to contraceptive products and services is 

19 central to people’s ability to participate equally in 

20 economic and social life in the United States and 

21 globally. Contraception allows people to make deci22 sions about their families and their lives. 

23 (9) Contraception is key to sexual and repro24 ductive health. Contraception is critical to pre25 venting unintended pregnancy, and many contracepVerDate Sep 11 2014 03:48 Jul 30, 2022 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4612.IS S4612

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1 tives are highly effective in preventing and treating 

2 a wide array of often severe medical conditions and 

3 decrease the risk of certain cancers. 

4 (10) Family planning improves health outcomes 

5 for women, their families, and their communities 

6 and reduces rates of maternal and infant mortality 

7 and morbidity. 

8 (11) The United States has a long history of 

9 reproductive coercion, including the childbearing 

10 forced upon enslaved women, as well as the forced 

11 sterilization of Black women, Puerto Rican women, 

12 indigenous women, immigrant women, and disabled 

13 women, and reproductive coercion continues to 

14 occur. 

15 (12) The right to make personal decisions about 

16 contraceptive use is important for all Americans, 

17 and is especially critical for historically marginalized 

18 groups, including Black, indigenous, and other peo19 ple of color; immigrants; LGBTQ people; people with 

20 disabilities; people with low incomes; and people liv21 ing in rural and underserved areas. Many people 

22 who are part of these marginalized groups already 

23 face barriers—exacerbated by social, political, eco24 nomic, and environmental inequities—to comprehen25 sive health care, including reproductive health care, 


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1 that reduce their ability to make decisions about 

2 their health, families, and lives. 

3 (13) State and Federal policies governing phar4 maceutical and insurance policies affect the accessi5 bility of contraceptives, and the settings in which 

6 contraception services are delivered. 

7 (14) People engage in interstate commerce to 

8 access contraception services. 

9 (15) To provide contraception services, health 

10 care providers employ and obtain commercial serv11 ices from doctors, nurses, and other personnel who 

12 engage in interstate commerce and travel across 

13 State lines. 

14 (16) Congress has the authority to enact this 

15 Act to protect access to contraception pursuant to— 

16 (A) its powers under the Commerce Clause 

17 of section 8 of article I of the Constitution of 

18 the United States; 

19 (B) its powers under section 5 of the Four20 teenth Amendment to the Constitution of the 

21 United States to enforce the provisions of sec22 tion 1 of the Fourteenth Amendment; and 

23 (C) its powers under the necessary and 

24 proper clause of section 8 of article I of the 

25 Constitution of the United States. 


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1 (17) Congress has used its authority in the past 

2 to protect and expand access to contraception infor3 mation, products, and services. 

4 (18) In 1970, Congress established the family 

5 planning program under title X of the Public Health 

6 Service Act (42 U.S.C. 300 et seq.), the only Fed7 eral grant program dedicated to family planning and 

8 related services, providing access to information, 

9 products, and services for contraception. 

10 (19) In 1972, Congress required the Medicaid 

11 program to cover family planning services and sup12 plies, and the Medicaid program currently accounts 

13 for 75 percent of Federal funds spent on family 

14 planning. 

15 (20) In 2010, Congress enacted the Patient 

16 Protection and Affordable Care Act (Public Law 

17 111–148) (referred to in this section as the ‘‘ACA’’). 

18 Among other provisions, the ACA included provi19 sions to expand the affordability and accessibility of 

20 contraception by requiring health insurance plans to 

21 provide coverage for preventive services with no pa22 tient cost-sharing. 

23 (21) Despite the clearly established constitu24 tional right to contraception, access to contracep25 tives, including emergency contraceptives and longVerDate Sep 11 2014 03:48 Jul 30, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4612.IS S4612

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1 acting reversible contraceptives, has been obstructed 

2 across the United States in various ways. 

3 (22) As of 2022, at least 4 States tried to ban 

4 access to some or all contraceptives by restricting 

5 access to public funding for these products and serv6 ices. Furthermore, Arkansas, Mississippi, Missouri, 

7 and Texas have infringed on people’s ability to ac8 cess their contraceptive care by violating the free 

9 choice of provider requirement under the Medicaid 

10 program. 

11 (23) Providers’ refusals to offer contraceptives 

12 and information related to contraception based on 

13 their own personal beliefs impede patients from ob14 taining their preferred method, with laws in 12 

15 States as of the date of introduction of this Act spe16 cifically allowing health care providers to refuse to 

17 provide services related to contraception. 

18 (24) States have attempted to define abortion 

19 expansively so as to include contraceptives in State 

20 bans on abortion and have also restricted access to 

21 emergency contraception. 

22 (25) In June 2022, Justice Thomas, in his con23 curring opinion in Dobbs v. Jackson Women’s 

24 Health Organization (597 U.S. ll (2022)), stated 

25 that the Supreme Court ‘‘should reconsider all of 


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1 this Court’s substantive due process precedents, in2 cluding Griswold, Lawrence, and Obergefell’’ and 

3 that the Court has ‘‘a duty to correct the error es4 tablished in those precedents’’ by overruling them. 

5 (26) In order to further public health and to 

6 combat efforts to restrict access to reproductive 

7 health care, congressional action is necessary to pro8 tect access to contraceptives, contraception, and in9 formation related to contraception for everyone, re10 gardless of actual or perceived race, ethnicity, sex 

11 (including gender identity and sexual orientation), 

12 income, disability, national origin, immigration sta13 tus, or geography. 

14 SEC. 4. PERMITTED SERVICES. 

15 (a) IN GENERAL.—A person has a statutory right 

16 under this Act to obtain contraceptives and to engage in 

17 contraception, and a health care provider has a cor18 responding right to provide contraceptives, contraception, 

19 and information related to contraception. 

20 (b) LIMITATIONS OR REQUIREMENTS.—The statu21 tory rights specified in subsection (a) shall not be limited 

22 or otherwise infringed through any limitation or require23 ment that— 

24 (1) expressly, effectively, implicitly, or as imple25 mented singles out the provision of contraceptives, 


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1 contraception, or contraception-related information; 

2 health care providers who provide contraceptives, 

3 contraception, or contraception-related information; 

4 or facilities in which contraceptives, contraception, 

5 or contraception-related information is provided; and 

6 (2) impedes access to contraceptives, contracep7 tion, or contraception-related information. 

8 (c) EXCEPTION.—To defend against a claim that a 

9 limitation or requirement violates a health care provider’s 

10 or patient’s statutory rights under subsection (b), a party 

11 must establish, by clear and convincing evidence, that— 

12 (1) the limitation or requirement significantly 

13 advances the safety of contraceptives, contraception, 

14 and information related to contraception; and 

15 (2) the safety of contraceptives, contraception, 

16 and information related to contraception or the 

17 health of patients cannot be advanced by a less re18 strictive alternative measure or action. 

19 (d) RULE OF CONSTRUCTION.—Nothing in this sec20 tion shall be construed to limit the authority of the Sec21 retary of Health and Human Services, acting through the 

22 Commissioner of Food and Drugs, to clear, approve, li23 cense, or otherwise engage in the regulation of contracep24 tives under the Federal Food, Drug, and Cosmetic Act or 

25 the Public Health Service Act, as applicable. 


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1 SEC. 5. APPLICABILITY AND PREEMPTION. 

2 (a) PREEMPTION OF INCONSISTENT STATE AND

3 LOCAL LAW.—No State or political subdivision of a State 

4 may administer, implement, or enforce any law, rule, regu5 lation, standard, or other provision having the force and 

6 effect of law in a manner that— 

7 (1) prohibits or restricts the sale, provision, or 

8 use of any contraceptives that the Secretary of 

9 Health and Human Services, acting through the 

10 Commissioner of Food and Drugs, has approved or 

11 cleared for contraceptive purposes; 

12 (2) prohibits or restricts any person from aiding 

13 another person in obtaining any such contraceptives 

14 or contraceptive methods; or 

15 (3) exempts any such contraceptives or contra16 ceptive methods from any other generally applicable 

17 law in a way that would make it more difficult to 

18 sell, provide, obtain, or use such contraceptives or 

19 contraceptive methods. 

20 (b) LIMITATIONS.—The provisions of this Act shall 

21 not supersede or otherwise affect any provision of Federal 

22 law relating to coverage under (and shall not be construed 

23 as requiring the provision of specific benefits under) group 

24 health plans or group or individual health insurance cov25 erage or coverage under a Federal health care program 

26 (as defined in section 1128B(f) of the Social Security Act 


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1 (42 U.S.C. 1320a–7b(f))), including coverage provided 

2 under section 1905(a)(4)(C) of the Social Security Act (42 

3 U.S.C. 1396d(a)(4)(C)) and section 2713 of the Public 

4 Health Service Act (42 U.S.C. 300gg–13). 

5 (c) DEFENSE.—In any cause of action against an in6 dividual or entity who is subject to a limitation or require7 ment that violates this Act, in addition to the remedies 

8 specified in section 7, this Act shall also apply to, and 

9 may be raised as a defense by, such an individual or entity. 

10 (d) RELATIONSHIP WITH OTHER LAWS.—Subsection 

11 (a) shall apply notwithstanding any other Federal law, in12 cluding the Religious Freedom Restoration Act of 1993 

13 (42 U.S.C. 2000bb et seq.). 

14 (e) EFFECTIVE DATE.—This Act shall take effect im15 mediately upon the date of enactment of this Act. 

16 SEC. 6. RULES OF CONSTRUCTION. 

17 (a) IN GENERAL.—In interpreting the provisions of 

18 this Act, a court shall liberally construe such provisions 

19 to effectuate the purposes of the Act. 

20 (b) RULE OF CONSTRUCTION.—Nothing in this Act 

21 shall be construed— 

22 (1) to authorize any government to interfere 

23 with a health care provider’s ability to provide con24 traceptives or information related to contraception 


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1 or a patient’s ability to obtain contraceptives or to 

2 engage in contraception; or 

3 (2) to permit or sanction the conduct of any 

4 sterilization procedure without the patient’s vol5 untary and informed consent. 

6 (c) OTHER INDIVIDUALS CONSIDERED AS GOVERN7 MENT OFFICIALS.—Any person who, by operation of a 

8 provision of Federal or State law, is permitted to imple9 ment or enforce a limitation or requirement that violates 

10 section 4 shall be considered a government official for pur11 poses of this Act. 

12 SEC. 7. ENFORCEMENT. 

13 (a) ATTORNEY GENERAL.—The Attorney General 

14 may commence a civil action on behalf of the United 

15 States against any State that violates, or against any gov16 ernment official (including a person described in section 

17 6(c)) that implements or enforces a limitation or require18 ment that violates, section 4. The court shall hold unlawful 

19 and set aside the limitation or requirement if it is in viola20 tion of this Act. 

21 (b) PRIVATE RIGHT OF ACTION.— 

22 (1) IN GENERAL.—Any individual or entity, in23 cluding any health care provider or patient, ad24 versely affected by an alleged violation of this Act, 

25 may commence a civil action against any State that 


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1 violates, or against any government official (includ2 ing a person described in section 6(c)) that imple3 ments or enforces a limitation or requirement that 

4 violates, section 4. The court shall hold unlawful and 

5 set aside the limitation or requirement if it is in vio6 lation of this Act. 

7 (2) HEALTH CARE PROVIDER.—A health care 

8 provider may commence an action for relief on its 

9 own behalf, on behalf of the provider’s staff, and on 

10 behalf of the provider’s patients who are or may be 

11 adversely affected by an alleged violation of this Act. 

12 (c) EQUITABLE RELIEF.—In any action under this 

13 section, the court may award appropriate equitable relief, 

14 including temporary, preliminary, or permanent injunctive 

15 relief. 

16 (d) COSTS.—In any action under this section, the 

17 court shall award costs of litigation, as well as reasonable 

18 attorney’s fees, to any prevailing plaintiff. A plaintiff shall 

19 not be liable to a defendant for costs or attorney’s fees 

20 in any non-frivolous action under this section. 

21 (e) JURISDICTION.—The district courts of the United 

22 States shall have jurisdiction over proceedings under this 

23 Act and shall exercise the same without regard to whether 

24 the party aggrieved shall have exhausted any administra25 tive or other remedies that may be provided for by law. 


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1 (f) ABROGATION OF STATE IMMUNITY.—Neither a 

2 State that enforces or maintains, nor a government official 

3 (including a person described in section 6(c)) who is per4 mitted to implement or enforce any limitation or require5 ment that violates section 4 shall be immune under the 

6 Tenth Amendment to the Constitution of the United 

7 States, the Eleventh Amendment to the Constitution of 

8 the United States, or any other source of law, from an 

9 action in a Federal or State court of competent jurisdic10 tion challenging that limitation or requirement. 

11 SEC. 8. SEVERABILITY. 

12 If any provision of this Act, or the application of such 

13 provision to any person, entity, government, or cir14 cumstance, is held to be unconstitutional, the remainder 

15 of this Act, or the application of such provision to all other 

16 persons, entities, governments, or circumstances, shall not 

17 be affected thereby. 

Æ 


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