II 

111TH CONGRESS 

2D SESSION S. 3357 

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

Drug Administration-approved contraception, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 13, 2010 

Mr. LAUTENBERG (for himself, Mr. BROWN of Ohio, Mrs. GILLIBRAND, Mr. 

WYDEN, Mr. WHITEHOUSE, Mrs. FEINSTEIN, and Mr. FRANKEN) 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, 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: 

8 (1) Family planning is basic health care for 

9 women. Access to contraception helps women preVerDate Mar 15 2010 03:40 May 14, 2010 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3357.IS S3357

smartinez on DSKB9S0YB1PROD with BILLS
2 

•S 3357 IS

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 emergency contra21 ception for individuals aged 17 and older. 

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

24 can significantly reduce a woman’s chance of unin25 tended pregnancy. 


smartinez on DSKB9S0YB1PROD with BILLS
3 

•S 3357 IS

1 (7) Emergency contraception works like other 

2 hormonal birth control by preventing pregnancy. It 

3 also does not harm or terminate an already-estab4 lished pregnancy. 

5 (8) Access to legal contraception is a protected 

6 fundamental right in the United States and should 

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

8 (9) Reports of pharmacists refusing to fill pre9 scriptions for contraceptives, including emergency 

10 contraceptives, have surfaced in States across the 

11 Nation, including Alabama, Arizona, California, the 

12 District of Columbia, Georgia, Illinois, Louisiana, 

13 Massachusetts, Michigan, Minnesota, Missouri, Mon14 tana, New Hampshire, New York, North Carolina, 

15 Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, 

16 Texas, Washington, West Virginia, and Wisconsin. 

17 Since emergency contraception became available 

18 without a prescription for certain individuals, refus19 als to provide non-prescription emergency contracep20 tion 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: 


smartinez on DSKB9S0YB1PROD with BILLS
4 

•S 3357 IS

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

2 OF FDA-APPROVED CONTRACEPTION. 

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


smartinez on DSKB9S0YB1PROD with BILLS
5 

•S 3357 IS

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) CONTRACEPTIVES NOT ORDINARILY

23 STOCKED.—Nothing in subsection (a)(2) shall be con24 strued to require any pharmacy to comply with such subVerDate Mar 15 2010 03:40 May 14, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3357.IS S3357

smartinez on DSKB9S0YB1PROD with BILLS
6 

•S 3357 IS

1 section if the pharmacy does not ordinarily stock contra2 ceptives 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 to a cus6 tomer in accordance with any of the following: 

7 ‘‘(1) If it is unlawful to dispense the contracep8 tive to the customer without a valid, lawful prescrip9 tion and no such prescription is presented. 

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

11 contraceptive. 

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

13 provide the contraceptive on the basis of a profes14 sional clinical judgment. 

15 ‘‘(d) RULE OF CONSTRUCTION.—Nothing in this sec16 tion shall be construed to invalidate or limit rights, rem17 edies, procedures, or legal standards under title VII of the 

18 Civil Rights Act of 1964. 

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. 


smartinez on DSKB9S0YB1PROD with BILLS
7 

•S 3357 IS

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. 


smartinez on DSKB9S0YB1PROD with BILLS
8 

•S 3357 IS

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 ‘pharmacy’ means an entity 

5 that— 

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

7 the business of selling prescription drugs at re8 tail; and 

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

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

11 Drug Administration-approved drug or device. 

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

13 means the use of professional knowledge and skills 

14 to form a clinical judgment, in accordance with pre15 vailing medical standards. 

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

17 a pharmacy providing, providing a referral for, or 

18 ordering contraception, or transferring the prescrip19 tion for contraception, means within the usual and 

20 customary timeframe at the pharmacy for providing, 

21 providing a referral for, or ordering other products, 

22 or transferring the prescription for other products, 

23 respectively. 

24 ‘‘(h) EFFECTIVE DATE.—This section shall take ef25 fect on the 31st day after the date of the enactment of 


smartinez on DSKB9S0YB1PROD with BILLS
9 

•S 3357 IS

1 this section, without regard to whether the Secretary has 

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

Æ 


smartinez on DSKB9S0YB1PROD with BILLS