II 

117TH CONGRESS 

1ST SESSION S. 3223 

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 

NOVEMBER 17, 2021 

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

WARREN, Mr. MERKLEY, Ms. BALDWIN, Mr. BLUMENTHAL, Mr. WYDEN, 

Ms. SMITH, Mr. MURPHY, Mr. MENENDEZ, Mr. KAINE, Ms. ROSEN, Ms. 

HIRONO, Ms. KLOBUCHAR, Mr. HEINRICH, Mrs. GILLIBRAND, Mr. MARKEY, Mrs. SHAHEEN, Mr. PADILLA, and Mr. VAN HOLLEN) 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. Access 

4 to contraception helps prevent unintended pregnancy 

5 and control the timing and spacing of planned 

6 births. 

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

8 Protection and Affordable Care Act (Public Law 

9 111–148), approximately 64,300,000 women had 

10 coverage of the full range of Food and Drug Admin11 istration-approved contraceptive methods without 

12 cost sharing in 2020. 

13 (3) The Patient Protection and Affordable Care 

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

15 pills alone in 2013. 

16 (4) According to the Centers for Disease Control and Prevention, nearly 2 17 ⁄3 of women between the 

18 ages of 15 and 49 are currently using a contracep19 tive method. 

20 (5) Although the Centers for Disease Control 

21 and Prevention included family planning in its pub22 lished list of the Ten Great Public Health Achieve23 ments in the 20th Century, the United States still 

24 has one of the highest rates of unintended preg25 nancies among industrialized nations. 


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1 (6) Each year, approximately 2,800,000 preg2 nancies, nearly half of all pregnancies, in the United 

3 States are unintended. 

4 (7) Access to birth control helps people achieve 

5 their goals of whether, and when, to get pregnant. 

6 However, studies show that when people are unable 

7 to access contraceptive care that fits their lives, they 

8 are more likely to face unintended pregnancies. 

9 (8) Contraceptives are used for a range of med10 ical purposes in addition to preventing pregnancy, 

11 such as treating abnormal cycles and endometriosis. 

12 (9) The Food and Drug Administration has ap13 proved multiple emergency contraceptive methods as 

14 safe and effective in preventing unintended preg15 nancy and has approved over-the-counter access to 

16 some forms of emergency contraception for all indi17 viduals, regardless of age. If taken soon after unpro18 tected sex or primary contraceptive failure, emer19 gency contraception can significantly reduce a per20 son’s chance of unintended pregnancy. 

21 (10) Legal contraception is a protected funda22 mental right in the United States and should not be 

23 impeded by one individual’s personal beliefs. 

24 (11) Reports of pharmacists refusing to fill pre25 scriptions for contraceptives, including emergency 


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1 contraceptives, or provide emergency contraception 

2 over-the-counter have surfaced in States across the 

3 Nation, including Alabama, Arizona, California, the 

4 District of Columbia, Georgia, Illinois, Louisiana, 

5 Massachusetts, Michigan, Minnesota, Missouri, Mon6 tana, New Hampshire, New Mexico, New York, 

7 North Carolina, Ohio, Oklahoma, Oregon, Rhode Is8 land, Tennessee, Texas, Washington, West Virginia, 

9 and Wisconsin. 

10 (12) One-third of women have experienced a 

11 delay in accessing their contraception because of the 

12 ongoing coronavirus pandemic. The Centers for Dis13 ease Control and Prevention recognizes the impor14 tance of access to contraception, particularly during 

15 the pandemic. 

16 (13) Pregnant people have a much higher risk 

17 of dying once infected with COVID–19, which high18 lights the importance of people being able to make 

19 and exercise decisions about whether and when to 

20 become pregnant. 


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

2 FDA-APPROVED CONTRACEPTION AND MEDI3 CATION RELATED TO CONTRACEPTION. 

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

5 (42 U.S.C. 238 et seq.) is amended by adding at the end 

6 the following: 

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

8 OF FDA-APPROVED CONTRACEPTION AND 

9 MEDICATION RELATED TO CONTRACEPTION. 

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

11 pharmacy that receives Food and Drug Administration12 approved drugs or devices in interstate commerce shall 

13 maintain compliance with the following: 

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

15 a medication related to a contraceptive that is in 

16 stock, the pharmacy shall ensure that the contracep17 tive or the medication related to a contraceptive is 

18 provided to the customer without delay. 

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

20 a medication related to a contraceptive that is not 

21 in stock and the pharmacy in the normal course of 

22 business stocks contraception or the medication re23 lated to contraception, the pharmacy shall imme24 diately inform the customer that the contraceptive or 

25 the medication related to a contraceptive is not in 


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1 stock and without delay offer the customer the fol2 lowing options: 

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

4 contraceptive or the medication related to a 

5 contraceptive through a referral or transfer, the 

6 pharmacy shall— 

7 ‘‘(i) locate a pharmacy of the cus8 tomer’s choice or the closest pharmacy 

9 confirmed to have the contraceptive or the 

10 medication related to a contraceptive in 

11 stock; and 

12 ‘‘(ii) refer the customer or transfer 

13 the prescription to that pharmacy. 

14 ‘‘(B) If the customer prefers for the phar15 macy to order the contraceptive or the medica16 tion related to a contraceptive, the pharmacy 

17 shall obtain the contraceptive or the medication 

18 related to a contraceptive under the pharmacy’s 

19 standard procedure for expedited ordering of 

20 medication and notify the customer when the 

21 contraceptive or the medication related to a 

22 contraceptive arrives. 

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

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

25 which customers are intimidated, threatened, or 


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1 harassed in the delivery of services relating to 

2 a request for contraception or a medication re3 lated to contraception; 

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

5 obstruct the delivery of services relating to a re6 quest for contraception or a medication related 

7 to contraception; 

8 ‘‘(C) its employees do not intentionally 

9 misrepresent or deceive customers about the 

10 availability of contraception or a medication re11 lated to contraception or its mechanism of ac12 tion; 

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

14 confidentiality with respect to a request for a 

15 contraception or a medication related to contra16 ception or threaten to breach such confiden17 tiality; or 

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

19 a valid, lawful prescription for a contraception 

20 or a medication related to contraception upon 

21 customer request. 

22 ‘‘(b) CONTRACEPTIVES OR MEDICATION RELATED TO

23 A CONTRACEPTIVE NOT ORDINARILY STOCKED.—Noth24 ing in subsection (a)(2) shall be construed to require any 

25 pharmacy to comply with such subsection if the pharmacy 


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1 does not ordinarily stock contraceptives or medication re2 lated to a contraceptive in the normal course of business. 

3 ‘‘(c) REFUSALS PURSUANT TO STANDARD PHAR4 MACY PRACTICE.—This section does not prohibit a phar5 macy from refusing to provide a contraceptive or a medi6 cation related to a contraceptive to a customer in accord7 ance with any of the following: 

8 ‘‘(1) If it is unlawful to dispense the contracep9 tive or the medication related to a contraceptive to 

10 the customer without a valid, lawful prescription and 

11 no such prescription is presented. 

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

13 contraceptive or the medication related to a contra14 ceptive. 

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

16 provide the contraceptive or the medication related 

17 to a contraceptive on the basis of a professional clin18 ical judgment. 

19 ‘‘(d) RELATION TO OTHER LAWS.— 

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

21 this section shall be construed to invalidate or limit 

22 rights, remedies, procedures, or legal standards 

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

24 ‘‘(2) CERTAIN CLAIMS.—The Religious Free25 dom Restoration Act of 1993 (42 U.S.C. 2000bb et 


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1 seq.) shall not provide a claim concerning, or a de2 fense to a claim under, a covered title, or provide a 

3 basis for challenging the application or enforcement 

4 of a covered title. 

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

6 any provision of State law or any professional obligation 

7 made applicable by a State board or other entity respon8 sible for licensing or discipline of pharmacies or phar9 macists, to the extent that such State law or professional 

10 obligation provides protections for customers that are 

11 greater than the protections provided by this section. 

12 ‘‘(f) ENFORCEMENT.— 

13 ‘‘(1) CIVIL PENALTY.—A pharmacy that vio14 lates a requirement of subsection (a) is liable to the 

15 United States for a civil penalty in an amount not 

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

17 $100,000 for all violations adjudicated in a single 

18 proceeding. 

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

20 aggrieved as a result of a violation of a requirement 

21 of subsection (a) may, in any court of competent ju22 risdiction, commence a civil action against the phar23 macy involved to obtain appropriate relief, including 

24 actual and punitive damages, injunctive relief, and a 

25 reasonable attorney’s fee and cost. 


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1 ‘‘(3) LIMITATIONS.—A civil action under para2 graph (1) or (2) may not be commenced against a 

3 pharmacy after the expiration of the 5-year period 

4 beginning on the date on which the pharmacy alleg5 edly engaged in the violation involved. 

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

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

8 means any drug or device approved by the Food and 

9 Drug Administration to prevent pregnancy. 

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

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

12 a pharmacy. 

13 ‘‘(3) The term ‘medication related to contracep14 tion’ or ‘medication related to a contraceptive’ 

15 means any drug or device approved by the Food and 

16 Drug Administration that a medical professional de17 termines necessary to use before or in conjunction 

18 with contraception or a contraceptive. 

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

20 that— 

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

22 the business of selling prescription drugs at re23 tail; and 

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


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

2 Drug Administration-approved drug or device. 

3 ‘‘(6) 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 ‘‘(7) The term ‘without delay’, with respect to 

8 a pharmacy providing, providing a referral for, or 

9 ordering contraception or a medication related to 

10 contraception, or transferring the prescription for 

11 contraception or a medication related to contracep12 tion, means within the usual and customary time13 frame at the pharmacy for providing, providing a re14 ferral for, or ordering other products, or transferring 

15 the prescription for other products, respectively. 

16 ‘‘(h) EFFECTIVE DATE.—This section shall take ef17 fect on the 31st day after the date of the enactment of 

18 this section, without regard to whether the Secretary has 

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

Æ 


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