I 

110TH CONGRESS 

1ST SESSION H. R. 2596 

To establish certain duties for pharmacies to ensure provision of Food and 

Drug Administration-approved contraception, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 6, 2007 

Mrs. MALONEY of New York (for herself, Mr. SHAYS, Mr. WAXMAN, and Mr. 

INSLEE) introduced the following bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To establish certain duties for pharmacies to ensure provision 

of Food and Drug Administration-approved contraception, and for other purposes. 

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 ‘‘Access to Birth Control 

5 Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds as follows: 

8 (1) Family planning is basic health care for 

9 women. Access to contraception helps women preVerDate Aug 31 2005 21:37 Jun 08, 2007 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2596.IH H2596

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1 vent unintended pregnancy and control the timing 

2 and spacing of planned births. 

3 (2) Although the Centers for Disease Control 

4 and Prevention included family planning in its pub5 lished list of the Ten Great Public Health Achieve6 ments in the 20th Century, the United States still 

7 has one of the highest rates of unintended preg8 nancies among industrialized nations. 

9 (3) Each year, 3,000,000 pregnancies, nearly 

10 half of all pregnancies, in the United States are un11 intended, and nearly half of unintended pregnancies 

12 end in abortion. 

13 (4) Women rely on prescription contraceptives 

14 for a range of medical purposes in addition to birth 

15 control, such as regulation of cycles and endo16 metriosis. 

17 (5) The Food and Drug Administration has de18 clared emergency contraception to be safe and effec19 tive in preventing unintended pregnancy and has ap20 proved over-the-counter access to the emergency con21 traceptive Plan B for adults. 

22 (6) If taken soon after unprotected sex or pri23 mary contraceptive failure, emergency contraception 

24 can significantly reduce a woman’s chance of uninVerDate Aug 31 2005 21:37 Jun 08, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2596.IH H2596

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1 tended pregnancy and, therefore, the need for abor2 tion. 

3 (7) Emergency contraception works like other 

4 hormonal birth control. It does not harm or termi5 nate an already-established pregnancy. 

6 (8) Access to legal contraception is a protected 

7 fundamental right in the United States and should 

8 not be impeded by an individual’s personal beliefs. 

9 (9) Reports of pharmacists refusing to fill pre10 scriptions for contraceptives, including emergency 

11 contraceptives, have surfaced in States across the 

12 Nation, including Arizona, California, Georgia, Illi13 nois, Louisiana, Massachusetts, Minnesota, Mis14 souri, New Hampshire, New York, North Carolina, 

15 Ohio, Oregon, Rhode Island, Tennessee, Texas, 

16 Washington, West Virginia, and Wisconsin. Since 

17 emergency contraception has become available with18 out a prescription for individuals 18 and over, re19 ports of refusals to provide non-prescription emer20 gency contraception have also been reported. 

21 SEC. 3. DUTIES OF PHARMACIES TO ENSURE PROVISION OF 

22 FDA-APPROVED CONTRACEPTION. 

23 Part B of title II of the Public Health Service Act 

24 (42 U.S.C. 238 et seq.) is amended by adding at the end 

25 the following: 


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1 ‘‘SEC. 249. DUTIES OF PHARMACIES TO ENSURE PROVISION 

2 OF FDA-APPROVED CONTRACEPTION. 

3 ‘‘(a) IN GENERAL.—Subject to subsection (b), a 

4 pharmacy that receives Food and Drug Administration5 approved drugs or devices in interstate commerce shall 

6 maintain compliance with the following: 

7 ‘‘(1) If a customer requests a contraceptive that 

8 is in stock, the pharmacy shall ensure that the con9 traceptive is provided to the customer without delay. 

10 ‘‘(2) If a customer requests a contraceptive that 

11 is not in stock and the pharmacy in the normal 

12 course of business stocks contraception, the phar13 macy shall immediately inform the customer that the 

14 contraceptive is not in stock and without delay offer 

15 the customer the following options: 

16 ‘‘(A) If the customer prefers to obtain the 

17 contraceptive through a referral or transfer, the 

18 pharmacy shall— 

19 ‘‘(i) locate a pharmacy of the cus20 tomer’s choice or the closest pharmacy 

21 confirmed to have the contraceptive in 

22 stock; and 

23 ‘‘(ii) refer the customer or transfer 

24 the prescription to that pharmacy. 

25 ‘‘(B) If the customer prefers for the phar26 macy to order the contraceptive, the pharmacy 


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1 shall obtain the contraceptive under the phar2 macy’s standard procedure for expedited order3 ing of medication and notify the customer when 

4 the contraceptive arrives. 

5 ‘‘(3) The pharmacy shall ensure that its em6 ployees do not— 

7 ‘‘(A) intimidate, threaten, or harass cus8 tomers in the delivery of services relating to a 

9 request for contraception; 

10 ‘‘(B) interfere with or obstruct the delivery 

11 of services relating to a request for contracep12 tion; 

13 ‘‘(C) intentionally misrepresent or deceive 

14 customers about the availability of contracep15 tion or its mechanism of action; 

16 ‘‘(D) breach medical confidentiality with 

17 respect to a request for contraception or threat18 en to breach such confidentiality; or 

19 ‘‘(E) refuse to return a valid, lawful pre20 scription for contraception upon customer re21 quest. 

22 ‘‘(b) REFUSALS PURSUANT TO STANDARD PHAR23 MACY PRACTICE.—This section does not prohibit a phar24 macy from refusing to provide a contraceptive to a cus25 tomer in accordance with any of the following: 


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1 ‘‘(1) If it is unlawful to dispense the contracep2 tive to the customer without a valid, lawful prescrip3 tion and no such prescription is presented. 

4 ‘‘(2) If the customer is unable to pay for the 

5 contraceptive. 

6 ‘‘(3) If the employee of the pharmacy refuses to 

7 provide the contraceptive on the basis of a profes8 sional clinical judgment. 

9 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this sec10 tion shall be construed to alter any standard under title 

11 VII of the Civil Rights Act of 1964. 

12 ‘‘(d) PREEMPTION.—This section does not preempt 

13 any provision of State law or any professional obligation 

14 made applicable by a State board or other entity respon15 sible for licensing or discipline of pharmacies or phar16 macists, to the extent that such State law or professional 

17 obligation provides protections for customers that are 

18 greater than the protections provided by this section. 

19 ‘‘(e) ENFORCEMENT.— 

20 ‘‘(1) CIVIL PENALTY.—A pharmacy that vio21 lates a requirement of subsection (a) is liable to the 

22 United States for a civil penalty in an amount not 

23 exceeding $5,000 per day of violation, not to exceed 

24 $500,000 for all violations adjudicated in a single 

25 proceeding. 


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1 ‘‘(2) PRIVATE CAUSE OF ACTION.—Any person 

2 aggrieved as a result of a violation of a requirement 

3 of subsection (a) may, in any court of competent ju4 risdiction, commence a civil action against the phar5 macy involved to obtain appropriate relief, including 

6 actual and punitive damages, injunctive relief, and a 

7 reasonable attorney’s fee and cost. 

8 ‘‘(3) LIMITATIONS.—A civil action under para9 graph (1) or (2) may not be commenced against a 

10 pharmacy after the expiration of the 5-year period 

11 beginning on the date on which the pharmacy alleg12 edly engaged in the violation involved. 

13 ‘‘(f) DEFINITIONS.—In this section: 

14 ‘‘(1) The term ‘contraception’ or ‘contraceptive’ 

15 means any drug or device approved by the Food and 

16 Drug Administration to prevent pregnancy. 

17 ‘‘(2) The term ‘employee’ means a person hired, 

18 by contract or any other form of an agreement, by 

19 a pharmacy. 

20 ‘‘(3) The term ‘pharmacy’ means an entity 

21 that— 

22 ‘‘(A) is authorized by a State to engage in 

23 the business of selling prescription drugs at re24 tail; and 

25 ‘‘(B) employs one or more employees. 


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1 ‘‘(4) The term ‘product’ means a Food and 

2 Drug Administration-approved drug or device. 

3 ‘‘(5) The term ‘professional clinical judgment’ 

4 means the use of professional knowledge and skills 

5 to form a clinical judgment, in accordance with pre6 vailing medical standards. 

7 ‘‘(6) The term ‘without delay’, with respect to 

8 a pharmacy providing, providing a referral for, or 

9 ordering contraception, or transferring the prescrip10 tion for contraception, means within the usual and 

11 customary timeframe at the pharmacy for providing, 

12 providing a referral for, or ordering other products, 

13 or transferring the prescription for other products, 

14 respectively. 

15 ‘‘(g) EFFECTIVE DATE.—This section shall take ef16 fect on the 31st day after the date of the enactment of 

17 this section, without regard to whether the Secretary has 

18 issued any guidance or final rule regarding this section.’’. 

Æ 


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