Right to Contraception Act
Bill: S.4612 | Sponsor: Sen. Markey, Edward J. (D-MA)
Policy area: Health

Summary:
Right to Contraception Act
This bill sets out statutory protections for an individual's right to access and a health care provider's right to provide contraception and related information. Contraception refers to an action taken to prevent pregnancy, including the use of contraceptives (i.e., a device or medication used to prevent pregnancy), fertility-awareness based methods, and sterilization procedures.
Generally, the bill prohibits measures that single out and impede access to contraception and related information. However, a party may defend against a claim that a measure violates the bill's prohibitions by demonstrating, through clear and convincing evidence, that the measure significantly advances the safety of contraception and cannot be achieved through less restrictive means. The bill also specifies that the prohibition preempts inconsistent state and local laws and applies in spite of other federal laws, including the Religious Freedom Restoration Act of 1993.
The Department of Justice, individuals, or health care providers may bring a lawsuit to enforce this bill, and states are not immune from suits for violations.

To protect a person'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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Right to Contraception Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Contraception.--The term ``contraception'' means an 
        action taken to prevent pregnancy, including the use of 
        contraceptives or fertility-awareness based methods, and 
        sterilization procedures.
            (2) Contraceptive.--The term ``contraceptive'' means any 
        drug, device, or biological product intended for use in the 
        prevention of pregnancy, whether specifically intended to 
        prevent pregnancy or for other health needs, that is legally 
        marketed under the Federal Food, Drug, and Cosmetic Act, such 
        as oral contraceptives, long-acting reversible contraceptives, 
        emergency contraceptives, internal and external condoms, 
        injectables, vaginal barrier methods, transdermal patches, and 
        vaginal rings, or other contraceptives.
            (3) Government.--The term ``government'' includes each 
        branch, department, agency, instrumentality, and official of 
        the United States or a State.
            (4) Health care provider.--The term ``health care 
        provider'' means, with respect to a State, any entity or 
        individual (including any physician, certified nurse-midwife, 
        nurse, nurse practitioner, physician assistant, and pharmacist) 
        that is licensed or otherwise authorized by the State to 
        provide health care services.
            (5) State.--The term ``State'' includes each of the 50 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, and each territory and possession of the United States, 
        and any subdivision of any of the foregoing, including any unit 
        of local government, such as a county, city, town, village, or 
        other general purpose political subdivision of a State.

SEC. 3. FINDINGS.

    Congress finds the following:
            (1) The right to contraception is a fundamental right, 
        central to a person's privacy, health, well-being, dignity, 
        liberty, equality, and ability to participate in the social and 
        economic life of the Nation.
            (2) The Supreme Court has repeatedly recognized the 
        constitutional right to contraception.
            (3) In Griswold v. Connecticut (381 U.S. 479 (1965)), the 
        Supreme Court first recognized the constitutional right for 
        married people to use contraceptives.
            (4) In Eisenstadt v. Baird (405 U.S. 438 (1972)), the 
        Supreme Court confirmed the constitutional right of all people 
        to legally access contraceptives regardless of marital status.
            (5) In Carey v. Population Services International (431 U.S. 
        678 (1977)), the Supreme Court affirmed the constitutional 
        right to contraceptives for minors.
            (6) The right to contraception has been repeatedly 
        recognized internationally as a human right. The United Nations 
        Population Fund has published several reports outlining family 
        planning as a basic human right that advances women's health, 
        economic empowerment, and equality.
            (7) Access to contraceptives is internationally recognized 
        by the World Health Organization as advancing other human 
        rights such as the right to life, liberty, expression, health, 
        work, and education.
            (8) Contraception is safe, essential health care, and 
        access to contraceptive products and services is central to 
        people's ability to participate equally in economic and social 
        life in the United States and globally. Contraception allows 
        people to make decisions about their families and their lives.
            (9) Contraception is key to sexual and reproductive health. 
        Contraception is critical to preventing unintended pregnancy, 
        and many contraceptives are highly effective in preventing and 
        treating a wide array of often severe medical conditions and 
        decrease the risk of certain cancers.
            (10) Family planning improves health outcomes for women, 
        their families, and their communities and reduces rates of 
        maternal and infant mortality and morbidity.
            (11) The United States has a long history of reproductive 
        coercion, including the childbearing forced upon enslaved 
        women, as well as the forced sterilization of Black women, 
        Puerto Rican women, indigenous women, immigrant women, and 
        disabled women, and reproductive coercion continues to occur.
            (12) The right to make personal decisions about 
        contraceptive use is important for all Americans, and is 
        especially critical for historically marginalized groups, 
        including Black, indigenous, and other people of color; 
        immigrants; LGBTQ people; people with disabilities; people with 
        low incomes; and people living in rural and underserved areas. 
        Many people who are part of these marginalized groups already 
        face barriers--exacerbated by social, political, economic, and 
        environmental inequities--to comprehensive health care, 
        including reproductive health care, that reduce their ability 
        to make decisions about their health, families, and lives.
            (13) State and Federal policies governing pharmaceutical 
        and insurance policies affect the accessibility of 
        contraceptives, and the settings in which contraception 
        services are delivered.
            (14) People engage in interstate commerce to access 
        contraception services.
            (15) To provide contraception services, health care 
        providers employ and obtain commercial services from doctors, 
        nurses, and other personnel who engage in interstate commerce 
        and travel across State lines.
            (16) Congress has the authority to enact this Act to 
        protect access to contraception pursuant to--
                    (A) its powers under the Commerce Clause of section 
                8 of article I of the Constitution of the United 
                States;
                    (B) its powers under section 5 of the Fourteenth 
                Amendment to the Constitution of the United States to 
                enforce the provisions of section 1 of the Fourteenth 
                Amendment; and
                    (C) its powers under the necessary and proper 
                clause of section 8 of article I of the Constitution of 
                the United States.
            (17) Congress has used its authority in the past to protect 
        and expand access to contraception information, products, and 
        services.
            (18) In 1970, Congress established the family planning 
        program under title X of the Public Health Service Act (42 
        U.S.C. 300 et seq.), the only Federal grant program dedicated 
        to family planning and related services, providing access to 
        information, products, and services for contraception.
            (19) In 1972, Congress required the Medicaid program to 
        cover family planning services and supplies, and the Medicaid 
        program currently accounts for 75 percent of Federal funds 
        spent on family planning.
            (20) In 2010, Congress enacted the Patient Protection and 
        Affordable Care Act (Public Law 111-148) (referred to in this 
        section as the ``ACA''). Among other provisions, the ACA 
        included provisions to expand the affordability and 
        accessibility of contraception by requiring health insurance 
        plans to provide coverage for preventive services with no 
        patient cost-sharing.
            (21) Despite the clearly established constitutional right 
        to contraception, access to contraceptives, including emergency 
        contraceptives and long-acting reversible contraceptives, has 
        been obstructed across the United States in various ways.
            (22) As of 2022, at least 4 States tried to ban access to 
        some or all contraceptives by restricting access to public 
        funding for these products and services. Furthermore, Arkansas, 
        Mississippi, Missouri, and Texas have infringed on people's 
        ability to access their contraceptive care by violating the 
        free choice of provider requirement under the Medicaid program.
            (23) Providers' refusals to offer contraceptives and 
        information related to contraception based on their own 
        personal beliefs impede patients from obtaining their preferred 
        method, with laws in 12 States as of the date of introduction 
        of this Act specifically allowing health care providers to 
        refuse to provide services related to contraception.
            (24) States have attempted to define abortion expansively 
        so as to include contraceptives in State bans on abortion and 
        have also restricted access to emergency contraception.
            (25) In June 2022, Justice Thomas, in his concurring 
        opinion in Dobbs v. Jackson Women's Health Organization (597 
        U.S. __ (2022)), stated that the Supreme Court ``should 
        reconsider all of this Court's substantive due process 
        precedents, including Griswold, Lawrence, and Obergefell'' and 
        that the Court has ``a duty to correct the error established in 
        those precedents'' by overruling them.
            (26) In order to further public health and to combat 
        efforts to restrict access to reproductive health care, 
        congressional action is necessary to protect access to 
        contraceptives, contraception, and information related to 
        contraception for everyone, regardless of actual or perceived 
        race, ethnicity, sex (including gender identity and sexual 
        orientation), income, disability, national origin, immigration 
        status, or geography.

SEC. 4. PERMITTED SERVICES.

    (a) In General.--A person has a statutory right under this Act to 
obtain contraceptives and to engage in contraception, and a health care 
provider has a corresponding right to provide contraceptives, 
contraception, and information related to contraception.
    (b) Limitations or Requirements.--The statutory rights specified in 
subsection (a) shall not be limited or otherwise infringed through any 
limitation or requirement that--
            (1) expressly, effectively, implicitly, or as implemented 
        singles out the provision of contraceptives, contraception, or 
        contraception-related information; health care providers who 
        provide contraceptives, contraception, or contraception-related 
        information; or facilities in which contraceptives, 
        contraception, or contraception-related information is 
        provided; and
            (2) impedes access to contraceptives, contraception, or 
        contraception-related information.
    (c) Exception.--To defend against a claim that a limitation or 
requirement violates a health care provider's or patient's statutory 
rights under subsection (b), a party must establish, by clear and 
convincing evidence, that--
            (1) the limitation or requirement significantly advances 
        the safety of contraceptives, contraception, and information 
        related to contraception; and
            (2) the safety of contraceptives, contraception, and 
        information related to contraception or the health of patients 
        cannot be advanced by a less restrictive alternative measure or 
        action.
    (d) Rule of Construction.--Nothing in this section shall be 
construed to limit the authority of the Secretary of Health and Human 
Services, acting through the Commissioner of Food and Drugs, to clear, 
approve, license, or otherwise engage in the regulation of 
contraceptives under the Federal Food, Drug, and Cosmetic Act or the 
Public Health Service Act, as applicable.

SEC. 5. APPLICABILITY AND PREEMPTION.

    (a) Preemption of Inconsistent State and Local Law.--No State or 
political subdivision of a State may administer, implement, or enforce 
any law, rule, regulation, standard, or other provision having the 
force and effect of law in a manner that--
            (1) prohibits or restricts the sale, provision, or use of 
        any contraceptives that the Secretary of Health and Human 
        Services, acting through the Commissioner of Food and Drugs, 
        has approved or cleared for contraceptive purposes;
            (2) prohibits or restricts any person from aiding another 
        person in obtaining any such contraceptives or contraceptive 
        methods; or
            (3) exempts any such contraceptives or contraceptive 
        methods from any other generally applicable law in a way that 
        would make it more difficult to sell, provide, obtain, or use 
        such contraceptives or contraceptive methods.
    (b) Limitations.--The provisions of this Act shall not supersede or 
otherwise affect any provision of Federal law relating to coverage 
under (and shall not be construed as requiring the provision of 
specific benefits under) group health plans or group or individual 
health insurance coverage or coverage under a Federal health care 
program (as defined in section 1128B(f) of the Social Security Act (42 
U.S.C. 1320a-7b(f))), including coverage provided under section 
1905(a)(4)(C) of the Social Security Act (42 U.S.C. 1396d(a)(4)(C)) and 
section 2713 of the Public Health Service Act (42 U.S.C. 300gg-13).
    (c) Defense.--In any cause of action against an individual or 
entity who is subject to a limitation or requirement that violates this 
Act, in addition to the remedies specified in section 7, this Act shall 
also apply to, and may be raised as a defense by, such an individual or 
entity.
    (d) Relationship With Other Laws.--Subsection (a) shall apply 
notwithstanding any other Federal law, including the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
    (e) Effective Date.--This Act shall take effect immediately upon 
the date of enactment of this Act.

SEC. 6. RULES OF CONSTRUCTION.

    (a) In General.--In interpreting the provisions of this Act, a 
court shall liberally construe such provisions to effectuate the 
purposes of the Act.
    (b) Rule of Construction.--Nothing in this Act shall be construed--
            (1) to authorize any government to interfere with a health 
        care provider's ability to provide contraceptives or 
        information related to contraception or a patient's ability to 
        obtain contraceptives or to engage in contraception; or
            (2) to permit or sanction the conduct of any sterilization 
        procedure without the patient's voluntary and informed consent.
    (c) Other Individuals Considered as Government Officials.--Any 
person who, by operation of a provision of Federal or State law, is 
permitted to implement or enforce a limitation or requirement that 
violates section 4 shall be considered a government official for 
purposes of this Act.

SEC. 7. ENFORCEMENT.

    (a) Attorney General.--The Attorney General may commence a civil 
action on behalf of the United States against any State that violates, 
or against any government official (including a person described in 
section 6(c)) that implements or enforces a limitation or requirement 
that violates, section 4. The court shall hold unlawful and set aside 
the limitation or requirement if it is in violation of this Act.
    (b) Private Right of Action.--
            (1) In general.--Any individual or entity, including any 
        health care provider or patient, adversely affected by an 
        alleged violation of this Act, may commence a civil action 
        against any State that violates, or against any government 
        official (including a person described in section 6(c)) that 
        implements or enforces a limitation or requirement that 
        violates, section 4. The court shall hold unlawful and set 
        aside the limitation or requirement if it is in violation of 
        this Act.
            (2) Health care provider.--A health care provider may 
        commence an action for relief on its own behalf, on behalf of 
        the provider's staff, and on behalf of the provider's patients 
        who are or may be adversely affected by an alleged violation of 
        this Act.
    (c) Equitable Relief.--In any action under this section, the court 
may award appropriate equitable relief, including temporary, 
preliminary, or permanent injunctive relief.
    (d) Costs.--In any action under this section, the court shall award 
costs of litigation, as well as reasonable attorney's fees, to any 
prevailing plaintiff. A plaintiff shall not be liable to a defendant 
for costs or attorney's fees in any non-frivolous action under this 
section.
    (e) Jurisdiction.--The district courts of the United States shall 
have jurisdiction over proceedings under this Act and shall exercise 
the same without regard to whether the party aggrieved shall have 
exhausted any administrative or other remedies that may be provided for 
by law.
    (f) Abrogation of State Immunity.--Neither a State that enforces or 
maintains, nor a government official (including a person described in 
section 6(c)) who is permitted to implement or enforce any limitation 
or requirement that violates section 4 shall be immune under the Tenth 
Amendment to the Constitution of the United States, the Eleventh 
Amendment to the Constitution of the United States, or any other source 
of law, from an action in a Federal or State court of competent 
jurisdiction challenging that limitation or requirement.

SEC. 8. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person, entity, government, or circumstance, is held to be 
unconstitutional, the remainder of this Act, or the application of such 
provision to all other persons, entities, governments, or 
circumstances, shall not be affected thereby.
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