II 

115TH CONGRESS 

1ST SESSION S. 2259 

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

Drug Administration-approved contraception, medication related to contraception, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 20, 2017 

Mr. BOOKER (for himself, Mrs. MURRAY, Mr. BROWN, Mr. WHITEHOUSE, Ms. 

BALDWIN, Mr. FRANKEN, Mrs. GILLIBRAND, Mr. KAINE, Mrs. SHAHEEN, 

Mr. BLUMENTHAL, Mr. SANDERS, Ms. HIRONO, Mr. MARKEY, Mr. MURPHY, Mr. VAN HOLLEN, Ms. DUCKWORTH, Mr. MENENDEZ, Mr. 

MERKLEY, and Mr. WYDEN) introduced the following bill; which was read 

twice and referred to the Committee on Health, Education, Labor, and 

Pensions 

A BILL 

To establish certain duties for pharmacies to ensure provision 

of Food and Drug Administration-approved contraception, medication related to 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’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds as follows: 

3 (1) Family planning is basic health care for 

4 women. Access to contraception helps women pre5 vent unintended pregnancy and control the timing 

6 and spacing of planned births. 

7 (2) As a result of the enactment of the Patient 

8 Protection and Affordable Care Act (Public Law 

9 111–148), 62,400,000 women now have coverage of 

10 the full range of Food and Drug Administration-ap11 proved contraceptive methods without cost sharing. 

12 (3) The Patient Protection and Affordable Care 

13 Act saved women $1,400,000,000 on birth control 

14 pills alone in 2013. 

(4) Nearly 2 15 ⁄3 of women of reproductive age are 

16 currently using a contraceptive method. 

17 (5) Although the Centers for Disease Control 

18 and Prevention included family planning in its pub19 lished list of the Ten Great Public Health Achieve20 ments in the 20th Century, the United States still 

21 has one of the highest rates of unintended preg22 nancies among industrialized nations. 

23 (6) Each year, 2,800,000 pregnancies, nearly 

24 half of all pregnancies, in the United States are un25 intended, and nearly half of unintended pregnancies 

26 end in abortion. 


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1 (7) Access to contraceptives at no cost has been 

2 found to contribute to significantly lower rates of 

3 unintended pregnancy and abortion. 

4 (8) Women who do not use contraception, 

5 women who have gaps in contraception, and women 

6 who use contraception inconsistently or incorrectly 

7 account for 95 percent of unintended pregnancies in 

8 the United States. 

9 (9) Women rely on prescription contraceptives 

10 for a range of medical purposes in addition to birth 

11 control, such as regulation of cycles and endo12 metriosis. 

13 (10) The Food and Drug Administration has 

14 approved emergency contraception as safe and effec15 tive in preventing unintended pregnancy and has ap16 proved over-the-counter access to some forms of 

17 emergency contraception for all individuals, regard18 less of age. If taken soon after unprotected sex or 

19 primary contraceptive failure, emergency contracep20 tion can significantly reduce a woman’s chance of 

21 unintended pregnancy. 

22 (11) Access to legal contraception is a protected 

23 fundamental right in the United States and should 

24 not be impeded by one individual’s personal beliefs. 


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1 (12) Reports of pharmacists refusing to fill pre2 scriptions for contraceptives or provide emergency 

3 contraception over-the-counter, including emergency 

4 contraceptives, have surfaced in States across the 

5 Nation, including Alabama, Arizona, California, the 

6 District of Columbia, Georgia, Illinois, Louisiana, 

7 Massachusetts, Michigan, Minnesota, Missouri, Mon8 tana, New Hampshire, New Mexico, New York, 

9 North Carolina, Ohio, Oklahoma, Oregon, Rhode Is10 land, Tennessee, Texas, Washington, West Virginia, 

11 and Wisconsin. 

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

13 FDA-APPROVED CONTRACEPTION AND MEDI14 CATION RELATED TO CONTRACEPTION. 

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

16 (42 U.S.C. 238 et seq.) is amended by adding at the end 

17 the following: 

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

19 OF FDA-APPROVED CONTRACEPTION AND 

20 MEDICATION RELATED TO CONTRACEPTION. 

21 ‘‘(a) IN GENERAL.—Subject to subsection (c), a 

22 pharmacy that receives Food and Drug Administration23 approved drugs or devices in interstate commerce shall 

24 maintain compliance with the following: 


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1 ‘‘(1) If a customer requests a contraceptive or 

2 a medication related to a contraceptive that is in 

3 stock, the pharmacy shall ensure that the contracep4 tive or the medication related to a contraceptive is 

5 provided to the customer without delay. 

6 ‘‘(2) If a customer requests a contraceptive or 

7 a medication related to a contraceptive that is not 

8 in stock and the pharmacy in the normal course of 

9 business stocks contraception or the medication re10 lated to contraception, the pharmacy shall imme11 diately inform the customer that the contraceptive or 

12 the medication related to a contraceptive is not in 

13 stock and without delay offer the customer the fol14 lowing options: 

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

16 contraceptive or the medication related to a 

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 or the 

22 medication related to a contraceptive in 

23 stock; and 

24 ‘‘(ii) refer the customer or transfer 

25 the prescription to that pharmacy. 


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1 ‘‘(B) If the customer prefers for the phar2 macy to order the contraceptive or the medica3 tion related to a contraceptive, the pharmacy 

4 shall obtain the contraceptive or the medication 

5 related to a contraceptive under the pharmacy’s 

6 standard procedure for expedited ordering of 

7 medication and notify the customer when the 

8 contraceptive or the medication related to a 

9 contraceptive arrives. 

10 ‘‘(3) The pharmacy shall ensure that— 

11 ‘‘(A) it does not operate an environment in 

12 which customers are intimidated, threatened, or 

13 harassed in the delivery of services relating to 

14 a request for contraception or a medication re15 lated to contraception; 

16 ‘‘(B) its employees do not interfere with or 

17 obstruct the delivery of services relating to a re18 quest for contraception or a medication related 

19 to contraception; 

20 ‘‘(C) its employees do not intentionally 

21 misrepresent or deceive customers about the 

22 availability of contraception or a medication re23 lated to contraception or its mechanism of ac24 tion; 


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1 ‘‘(D) its employees do not breach medical 

2 confidentiality with respect to a request for a 

3 contraception or a medication related to contra4 ception or threaten to breach such confiden5 tiality; or 

6 ‘‘(E) its employees do not refuse to return 

7 a valid, lawful prescription for a contraception 

8 or a medication related to contraception upon 

9 customer request. 

10 ‘‘(b) CONTRACEPTIVES OR MEDICATION RELATED TO

11 A CONTRACEPTIVE NOT ORDINARILY STOCKED.—Noth12 ing in subsection (a)(2) shall be construed to require any 

13 pharmacy to comply with such subsection if the pharmacy 

14 does not ordinarily stock contraceptives or medication re15 lated to a contraceptive in the normal course of business. 

16 ‘‘(c) REFUSALS PURSUANT TO STANDARD PHAR17 MACY PRACTICE.—This section does not prohibit a phar18 macy from refusing to provide a contraceptive or a medi19 cation related to a contraceptive to a customer in accord20 ance with any of the following: 

21 ‘‘(1) If it is unlawful to dispense the contracep22 tive or the medication related to a contraceptive to 

23 the customer without a valid, lawful prescription and 

24 no such prescription is presented. 


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

2 contraceptive or the medication related to a contra3 ceptive. 

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

5 provide the contraceptive or the medication related 

6 to a contraceptive on the basis of a professional clin7 ical judgment. 

8 ‘‘(d) RELATION TO OTHER LAWS.— 

9 ‘‘(1) RULE OF CONSTRUCTION.—Nothing in 

10 this section shall be construed to invalidate or limit 

11 rights, remedies, procedures, or legal standards 

12 under title VII of the Civil Rights Act of 1964. 

13 ‘‘(2) CERTAIN CLAIMS.—The Religious Free14 dom Restoration Act of 1993 (42 U.S.C. 2000bb et 

15 seq.) shall not provide a claim concerning, or a de16 fense to a claim under, a covered title, or provide a 

17 basis for challenging the application or enforcement 

18 of a covered title. 

19 ‘‘(e) PREEMPTION.—This section does not preempt 

20 any provision of State law or any professional obligation 

21 made applicable by a State board or other entity respon22 sible for licensing or discipline of pharmacies or phar23 macists, to the extent that such State law or professional 

24 obligation provides protections for customers that are 

25 greater than the protections provided by this section. 


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1 ‘‘(f) ENFORCEMENT.— 

2 ‘‘(1) CIVIL PENALTY.—A pharmacy that vio3 lates a requirement of subsection (a) is liable to the 

4 United States for a civil penalty in an amount not 

5 exceeding $1,000 per day of violation, not to exceed 

6 $100,000 for all violations adjudicated in a single 

7 proceeding. 

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

9 aggrieved as a result of a violation of a requirement 

10 of subsection (a) may, in any court of competent ju11 risdiction, commence a civil action against the phar12 macy involved to obtain appropriate relief, including 

13 actual and punitive damages, injunctive relief, and a 

14 reasonable attorney’s fee and cost. 

15 ‘‘(3) LIMITATIONS.—A civil action under para16 graph (1) or (2) may not be commenced against a 

17 pharmacy after the expiration of the 5-year period 

18 beginning on the date on which the pharmacy alleg19 edly engaged in the violation involved. 

20 ‘‘(g) DEFINITIONS.—In this section: 

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

22 means any drug or device approved by the Food and 

23 Drug Administration to prevent pregnancy. 


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

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

3 a pharmacy. 

4 ‘‘(3) The term ‘medication related to contracep5 tion’ or ‘medication related to a contraceptive’ 

6 means any drug or device approved by the Food and 

7 Drug Administration that a medical professional de8 termines necessary to use before or in conjunction 

9 with contraception or a contraceptive. 

10 ‘‘(4) The term ‘pharmacy’ means an entity 

11 that— 

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

13 the business of selling prescription drugs at re14 tail; and 

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

16 ‘‘(5) The term ‘product’ means a Food and 

17 Drug Administration-approved drug or device. 

18 ‘‘(6) The term ‘professional clinical judgment’ 

19 means the use of professional knowledge and skills 

20 to form a clinical judgment, in accordance with pre21 vailing medical standards. 

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

23 a pharmacy providing, providing a referral for, or 

24 ordering contraception or a medication related to 

25 contraception, or transferring the prescription for 


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1 contraception or a medication related to contracep2 tion, means within the usual and customary time3 frame at the pharmacy for providing, providing a re4 ferral for, or ordering other products, or transferring 

5 the prescription for other products, respectively. 

6 ‘‘(h) EFFECTIVE DATE.—This section shall take ef7 fect on the 31st day after the date of the enactment of 

8 this section, without regard to whether the Secretary has 

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

Æ 


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