II 

Calendar No. 400 

118TH CONGRESS 

2D SESSION S. 4381 

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 

MAY 21, 2024 

Mr. MARKEY (for himself, Ms. BALDWIN, Mr. BENNET, Mr. BLUMENTHAL, 

Mr. BOOKER, Mr. BROWN, Ms. BUTLER, Ms. CANTWELL, Mr. CARDIN, 

Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. 

DUCKWORTH, Mr. DURBIN, Mr. FETTERMAN, Mrs. GILLIBRAND, Ms. 

HASSAN, Mr. HEINRICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, 

Mr. KELLY, Mr. KING, Ms. KLOBUCHAR, Mr. LUJA ́N, Mr. MENENDEZ, 

Mr. MERKLEY, Mr. MURPHY, Mrs. MURRAY, Mr. OSSOFF, Mr. PADILLA, 

Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mr. 

SCHUMER, Mrs. SHAHEEN, Ms. SINEMA, Ms. SMITH, Ms. STABENOW, 

Mr. TESTER, Mr. VAN HOLLEN, Mr. WARNER, Mr. WARNOCK, Ms. WARREN, Mr. WELCH, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the 

following bill; which was read the first time 

MAY 22, 2024 

Read the second time and placed on the calendar 

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, contraception, and information related to contraception. 


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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’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) CONTRACEPTION.—The term ‘‘contracep9 tion’’ means an action taken to prevent pregnancy, 

10 including the use of contraceptives or fertility-aware11 ness-based methods and sterilization procedures. 

12 (2) CONTRACEPTIVE.—The term ‘‘contracep13 tive’’ means any drug, device, or biological product 

14 intended for use in the prevention of pregnancy, 

15 whether specifically intended to prevent pregnancy 

16 or for other health needs, that is approved, cleared, 

17 authorized, or licensed under section 505, 510(k), 

18 513(f)(2), 515, or 564 of the Federal Food, Drug, 

19 and Cosmetic Act (21 U.S.C. 355, 360(k), 

20 360c(f)(2), 360e, 360bbb–3) or section 351 of the 

21 Public Health Service Act (42 U.S.C. 262). 

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

23 includes each branch, department, agency, instru24 mentality, and official of the United States or a 

25 State. 


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1 (4) HEALTH CARE PROVIDER.—The term 

2 ‘‘health care provider’’ means any entity or indi3 vidual (including any physician, certified nurse-mid4 wife, nurse, nurse practitioner, physician assistant, 

5 and pharmacist) that is licensed or otherwise author6 ized by a State to provide health care services. 

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

8 the 50 States, the District of Columbia, the Com9 monwealth of Puerto Rico, each territory and pos10 session of the United States, and each Indian Tribe 

11 (as defined in section 4 of the Indian Self-Deter12 mination and Education Assistance Act (25 U.S.C. 

13 5304)), and any political subdivision of any of the 

14 foregoing, including any unit of local government, 

15 such as a county, city, town, village, or other general 

16 purpose political subdivision of a State. 

17 SEC. 3. PURPOSES. 

18 The purposes of this Act are— 

19 (1) to provide a clear and comprehensive right 

20 to contraception; 

21 (2) to permit individuals to seek and obtain 

22 contraceptives and engage in contraception, and to 

23 permit health care providers to facilitate that care; 

24 and 


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1 (3) to protect an individual’s ability to make de2 cisions about their body, medical care, family, and 

3 life’s course, and thereby protect the individual’s 

4 ability to participate equally in the economic and so5 cial life of the United States. 

6 SEC. 4. PERMITTED SERVICES. 

7 (a) IN GENERAL.—An individual has a statutory 

8 right under this Act to obtain contraceptives and to volun9 tarily engage in contraception, free from coercion, and a 

10 health care provider has a corresponding right to provide 

11 contraceptives, contraception, and information, referrals, 

12 and services related to contraception. 

13 (b) LIMITATIONS OR REQUIREMENTS.—The statu14 tory rights specified in subsection (a) shall not be limited 

15 or otherwise infringed through any limitation or require16 ment that— 

17 (1) expressly, effectively, implicitly, or as-imple18 mented singles out— 

19 (A) the provision of contraceptives, contra20 ception, or contraception-related information; 

21 (B) health care providers who provide con22 traceptives, contraception, or contraception-re23 lated information; or 


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1 (C) facilities in which contraceptives, con2 traception, or contraception-related information 

3 is provided; and 

4 (2) impedes access to contraceptives, contracep5 tion, or contraception-related information. 

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

7 limitation or requirement violates a health care provider’s 

8 or individual’s statutory rights under subsection (b), a 

9 party must establish, by clear and convincing evidence, 

10 that— 

11 (1) the limitation or requirement significantly 

12 advances access to contraceptives, contraception, and 

13 information related to contraception; and 

14 (2) access to contraceptives, contraception, and 

15 information related to contraception or the health of 

16 patients cannot be advanced by a less restrictive al17 ternative measure or action. 

18 (d) RULE OF CONSTRUCTION.—Nothing in this sec19 tion shall be construed to limit the authority of the Sec20 retary of Health and Human Services, acting through the 

21 Commissioner of Food and Drugs, to approve, clear, au22 thorize, or license contraceptives under section 505, 

23 510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, 

24 and Cosmetic Act (21 U.S.C. 355, 360(k), 360c(f)(2), 

25 360e, 360bbb–3) or section 351 of the Public Health ServVerDate Sep 11 2014 05:36 May 23, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4381.PCS S4381

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1 ice Act (42 U.S.C. 262), or for the Federal Government 

2 to enforce such approval, clearance, authorization, or li3 censure. 

4 SEC. 5. APPLICABILITY AND PREEMPTION. 

5 (a) GENERAL APPLICATION.— 

6 (1) IN GENERAL.—Except as provided in sub7 section (c), this Act supersedes and applies to the 

8 law of the Federal Government and each State, and 

9 the implementation of such law, whether statutory, 

10 common law, or otherwise, and whether adopted be11 fore or after the date of enactment of this Act. 

12 (2) PROHIBITION.—Neither the Federal Gov13 ernment nor any State may administer, implement, 

14 or enforce any law, rule, regulation, standard, or 

15 other provision having the force and effect of law in 

16 a manner that— 

17 (A) prohibits or restricts the sale, provi18 sion, or use of any contraceptives; 

19 (B) prohibits or restricts any individual 

20 from aiding another individual in voluntarily 

21 obtaining or using any contraceptives or contra22 ceptive methods; or 

23 (C) exempts any contraceptives or contra24 ceptive methods from any other generally appli25 cable law in a way that would make it more difVerDate Sep 11 2014 05:36 May 23, 2024 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4381.PCS S4381

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1 ficult to sell, provide, obtain, or use such con2 traceptives or contraceptive methods. 

3 (3) RELATIONSHIP WITH OTHER LAWS.—This 

4 Act applies notwithstanding any other provision of 

5 Federal law, including the Religious Freedom Res6 toration Act of 1993 (42 U.S.C. 2000bb et seq.). 

7 (b) SUBSEQUENTLY ENACTED FEDERAL LEGISLA8 TION.—Federal law enacted after the date of enactment 

9 of this Act is subject to this Act, unless such law explicitly 

10 excludes such application by reference to this Act. 

11 (c) LIMITATIONS.—The provisions of this Act shall 

12 not supersede or otherwise affect any provision of Federal 

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

14 as requiring the provision of specific benefits under) group 

15 health plans or group or individual health insurance cov16 erage or coverage under a Federal health care program 

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

18 (42 U.S.C. 1320a–7b(f))), including coverage provided 

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

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

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

22 (d) DEFENSE.—In any cause of action against an in23 dividual or entity who is subject to a limitation or require24 ment that violates this Act, in addition to the remedies 


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

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

3 (e) EFFECTIVE DATE.—This Act shall take effect im4 mediately upon the date of enactment of this Act. 

5 SEC. 6. RULES OF CONSTRUCTION. 

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

7 this Act, a court shall liberally construe such provisions 

8 to effectuate the purposes described in section 3. 

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

10 shall be construed— 

11 (1) to authorize any government to interfere 

12 with a health care provider’s ability to provide con13 traceptives or information related to contraception 

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

15 engage in contraception; or 

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

17 sterilization procedure without the patient’s vol18 untary and informed consent. 

19 (c) OTHER INDIVIDUALS CONSIDERED AS GOVERN20 MENT OFFICIALS.—Any individual who, by operation of 

21 a provision of Federal or State law, is permitted to imple22 ment or enforce a limitation or requirement that violates 

23 section 4 shall be considered a government official for pur24 poses of this Act. 


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1 SEC. 7. ENFORCEMENT. 

2 (a) ATTORNEY GENERAL.—The Attorney General 

3 may commence a civil action on behalf of the United 

4 States against any State that violates, or against any gov5 ernment official (including an individual described in sec6 tion 6(c)) that implements or enforces a limitation or re7 quirement that violates, section 4. The court shall hold 

8 unlawful and set aside the limitation or requirement if it 

9 is in violation of this Act. 

10 (b) PRIVATE RIGHT OF ACTION.— 

11 (1) IN GENERAL.—Any individual or entity, in12 cluding any health care provider or patient, ad13 versely affected by an alleged violation of this Act, 

14 may commence a civil action against any State that 

15 violates, or against any government official (includ16 ing an individual described in section 6(c)) that im17 plements or enforces a limitation or requirement 

18 that violates, section 4. The court shall hold unlaw19 ful and set aside the limitation or requirement if it 

20 is in violation of this Act. 

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

22 provider may commence an action for relief on its 

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

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

25 adversely affected by an alleged violation of this Act. 


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

2 section, the court may award appropriate equitable relief, 

3 including temporary, preliminary, and permanent injunc4 tive relief. 

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

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

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

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

9 in any nonfrivolous action under this section. 

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

11 States shall have jurisdiction over proceedings under this 

12 Act and shall exercise the same without regard to whether 

13 the party aggrieved shall have exhausted any administra14 tive or other remedies that may be provided for by law. 

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

16 State that enforces or maintains, nor a government official 

17 (including an individual described in section 6(c)) who is 

18 permitted to implement or enforce any limitation or re19 quirement that violates section 4 shall be immune under 

20 the Tenth Amendment to the Constitution of the United 

21 States, the Eleventh Amendment to the Constitution of 

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

23 action in a Federal or State court of competent jurisdic24 tion challenging that limitation or requirement. 


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1 SEC. 8. SEVERABILITY. 

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

3 provision to any individual, entity, government, or cir4 cumstance, is held to be unconstitutional, the remainder 

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

6 individuals, entities, governments, or circumstances, shall 

7 not be affected thereby. 


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Calendar No. 400 

118TH CONGRESS 

2D SESSION S. 4381 

A BILL 

To protect an individual’s ability to access contralated to contraception. contraceptives, contraception, and information re- protect a health care provider’s ability to provide ceptives and to engage in contraception and to 

MAY 22, 2024 

Read the second time and placed on the calendar 


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