I 

111TH CONGRESS 

2D SESSION H. R. 5309 

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 

MAY 13, 2010 

Mrs. MALONEY (for herself, Mr. OLVER, Ms. MOORE of Wisconsin, Ms. SUTTON, Mr. FARR, Mr. MOORE of Kansas, Mr. TIERNEY, Mr. INSLEE, Mrs. 

CAPPS, Ms. BALDWIN, Mr. FILNER, Ms. WASSERMAN SCHULTZ, and Mr. 

STARK) 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 Congress finds as follows: 


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1 (1) Family planning is basic health care for 

2 women. Access to contraception helps women pre3 vent unintended pregnancy and control the timing 

4 and spacing of planned births. 

5 (2) Although the Centers for Disease Control 

6 and Prevention included family planning in its pub7 lished list of the Ten Great Public Health Achieve8 ments in the 20th Century, the United States still 

9 has one of the highest rates of unintended preg10 nancies among industrialized nations. 

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

12 half of all pregnancies, in the United States are un13 intended, and nearly half of unintended pregnancies 

14 end in abortion. 

15 (4) Women rely on prescription contraceptives 

16 for a range of medical purposes in addition to birth 

17 control, such as regulation of cycles and endo18 metriosis. 

19 (5) The Food and Drug Administration has de20 clared emergency contraception to be safe and effec21 tive in preventing unintended pregnancy and has ap22 proved over-the-counter access to emergency contra23 ception for individuals aged 17 and older. 

24 (6) If taken soon after unprotected sex or pri25 mary contraceptive failure, emergency contraception 


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1 can significantly reduce a woman’s chance of unin2 tended pregnancy. 

3 (7) Emergency contraception works like other 

4 hormonal birth control by preventing pregnancy. It 

5 also does not harm or terminate an already-estab6 lished pregnancy. 

7 (8) Access to legal contraception is a protected 

8 fundamental right in the United States and should 

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

10 (9) Reports of pharmacists refusing to fill pre11 scriptions for contraceptives, including emergency 

12 contraceptives, have surfaced in States across the 

13 Nation, including Alabama, Arizona, California, the 

14 District of Columbia, Georgia, Illinois, Louisiana, 

15 Massachusetts, Michigan, Minnesota, Missouri, Mon16 tana, New Hampshire, New York, North Carolina, 

17 Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, 

18 Texas, Washington, West Virginia, and Wisconsin. 

19 Since emergency contraception became available 

20 without a prescription for certain individuals, refus21 als to provide non-prescription emergency contracep22 tion have also been reported. 


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

2 FDA-APPROVED CONTRACEPTION. 

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

4 (42 U.S.C. 238 et seq.) is amended by adding at the end 

5 the following: 

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

7 OF FDA-APPROVED CONTRACEPTION. 

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

9 pharmacy that receives Food and Drug Administration10 approved drugs or devices in interstate commerce shall 

11 maintain compliance with the following: 

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

13 is in stock, the pharmacy shall ensure that the con14 traceptive is provided to the customer without delay. 

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

16 is not in stock and the pharmacy in the normal 

17 course of business stocks contraception, the phar18 macy shall immediately inform the customer that the 

19 contraceptive is not in stock and without delay offer 

20 the customer the following options: 

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

22 contraceptive through a referral or transfer, the 

23 pharmacy shall— 

24 ‘‘(i) locate a pharmacy of the cus25 tomer’s choice or the closest pharmacy 


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1 confirmed to have the contraceptive in 

2 stock; and 

3 ‘‘(ii) refer the customer or transfer 

4 the prescription to that pharmacy. 

5 ‘‘(B) If the customer prefers for the phar6 macy to order the contraceptive, the pharmacy 

7 shall obtain the contraceptive under the phar8 macy’s standard procedure for expedited order9 ing of medication and notify the customer when 

10 the contraceptive arrives. 

11 ‘‘(3) The pharmacy shall ensure that its em12 ployees do not— 

13 ‘‘(A) intimidate, threaten, or harass cus14 tomers in the delivery of services relating to a 

15 request for contraception; 

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

17 of services relating to a request for contracep18 tion; 

19 ‘‘(C) intentionally misrepresent or deceive 

20 customers about the availability of contracep21 tion or its mechanism of action; 

22 ‘‘(D) breach medical confidentiality with 

23 respect to a request for contraception or threat24 en to breach such confidentiality; or 


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1 ‘‘(E) refuse to return a valid, lawful pre2 scription for contraception upon customer re3 quest. 

4 ‘‘(b) CONTRACEPTIVES NOT ORDINARILY

5 STOCKED.—Nothing in subsection (a)(2) shall be con6 strued to require any pharmacy to comply with such sub7 section if the pharmacy does not ordinarily stock contra8 ceptives in the normal course of business. 

9 ‘‘(c) REFUSALS PURSUANT TO STANDARD PHAR10 MACY PRACTICE.—This section does not prohibit a phar11 macy from refusing to provide a contraceptive to a cus12 tomer in accordance with any of the following: 

13 ‘‘(1) If it is unlawful to dispense the contracep14 tive to the customer without a valid, lawful prescrip15 tion and no such prescription is presented. 

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

17 contraceptive. 

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

19 provide the contraceptive on the basis of a profes20 sional clinical judgment. 

21 ‘‘(d) RULE OF CONSTRUCTION.—Nothing in this sec22 tion shall be construed to invalidate or limit rights, rem23 edies, procedures, or legal standards under title VII of the 

24 Civil Rights Act of 1964. 


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

2 any provision of State law or any professional obligation 

3 made applicable by a State board or other entity respon4 sible for licensing or discipline of pharmacies or phar5 macists, to the extent that such State law or professional 

6 obligation provides protections for customers that are 

7 greater than the protections provided by this section. 

8 ‘‘(f) ENFORCEMENT.— 

9 ‘‘(1) CIVIL PENALTY.—A pharmacy that vio10 lates a requirement of subsection (a) is liable to the 

11 United States for a civil penalty in an amount not 

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

13 $100,000 for all violations adjudicated in a single 

14 proceeding. 

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

16 aggrieved as a result of a violation of a requirement 

17 of subsection (a) may, in any court of competent ju18 risdiction, commence a civil action against the phar19 macy involved to obtain appropriate relief, including 

20 actual and punitive damages, injunctive relief, and a 

21 reasonable attorney’s fee and cost. 

22 ‘‘(3) LIMITATIONS.—A civil action under para23 graph (1) or (2) may not be commenced against a 

24 pharmacy after the expiration of the 5-year period 


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1 beginning on the date on which the pharmacy alleg2 edly engaged in the violation involved. 

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

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

5 means any drug or device approved by the Food and 

6 Drug Administration to prevent pregnancy. 

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

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

9 a pharmacy. 

10 ‘‘(3) 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 ‘‘(4) The term ‘product’ means a Food and 

17 Drug Administration-approved drug or device. 

18 ‘‘(5) 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 ‘‘(6) The term ‘without delay’, with respect to 

23 a pharmacy providing, providing a referral for, or 

24 ordering contraception, or transferring the prescrip25 tion for contraception, means within the usual and 


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1 customary timeframe at the pharmacy for providing, 

2 providing a referral for, or ordering other products, 

3 or transferring the prescription for other products, 

4 respectively. 

5 ‘‘(h) EFFECTIVE DATE.—This section shall take ef6 fect on the 31st day after the date of the enactment of 

7 this section, without regard to whether the Secretary has 

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

Æ 


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