Title: Access to Birth Control Act
Policy area: Health

Summary:
Access to Birth Control Act
This bill amends the Public Health Service Act to require pharmacies to comply with certain rules related to ensuring access to contraceptives. Among other requirements, pharmacies must provide a customer a contraceptive or related medication without delay if it is in stock. If the contraceptive is not in stock, the pharmacy must immediately inform the customer and either transfer the prescription to a pharmacy that has it in stock or order it.
Civil penalties and a private cause of action are established for violations of this bill.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2259 Introduced in Senate (IS)]

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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.

    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 ``Access to Birth Control Act''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) Family planning is basic health care for women. Access 
        to contraception helps women prevent unintended pregnancy and 
        control the timing and spacing of planned births.
            (2) As a result of the enactment of the Patient Protection 
        and Affordable Care Act (Public Law 111-148), 62,400,000 women 
        now have coverage of the full range of Food and Drug 
        Administration-approved contraceptive methods without cost 
        sharing.
            (3) The Patient Protection and Affordable Care Act saved 
        women $1,400,000,000 on birth control pills alone in 2013.
            (4) Nearly \2/3\ of women of reproductive age are currently 
        using a contraceptive method.
            (5) Although the Centers for Disease Control and Prevention 
        included family planning in its published list of the Ten Great 
        Public Health Achievements in the 20th Century, the United 
        States still has one of the highest rates of unintended 
        pregnancies among industrialized nations.
            (6) Each year, 2,800,000 pregnancies, nearly half of all 
        pregnancies, in the United States are unintended, and nearly 
        half of unintended pregnancies end in abortion.
            (7) Access to contraceptives at no cost has been found to 
        contribute to significantly lower rates of unintended pregnancy 
        and abortion.
            (8) Women who do not use contraception, women who have gaps 
        in contraception, and women who use contraception 
        inconsistently or incorrectly account for 95 percent of 
        unintended pregnancies in the United States.
            (9) Women rely on prescription contraceptives for a range 
        of medical purposes in addition to birth control, such as 
        regulation of cycles and endometriosis.
            (10) The Food and Drug Administration has approved 
        emergency contraception as safe and effective in preventing 
        unintended pregnancy and has approved over-the-counter access 
        to some forms of emergency contraception for all individuals, 
        regardless of age. If taken soon after unprotected sex or 
        primary contraceptive failure, emergency contraception can 
        significantly reduce a woman's chance of unintended pregnancy.
            (11) Access to legal contraception is a protected 
        fundamental right in the United States and should not be 
        impeded by one individual's personal beliefs.
            (12) Reports of pharmacists refusing to fill prescriptions 
        for contraceptives or provide emergency contraception over-the-
        counter, including emergency contraceptives, have surfaced in 
        States across the Nation, including Alabama, Arizona, 
        California, the District of Columbia, Georgia, Illinois, 
        Louisiana, Massachusetts, Michigan, Minnesota, Missouri, 
        Montana, New Hampshire, New Mexico, New York, North Carolina, 
        Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, 
        Washington, West Virginia, and Wisconsin.

SEC. 3. DUTIES OF PHARMACIES TO ENSURE PROVISION OF FDA-APPROVED 
              CONTRACEPTION AND MEDICATION RELATED TO CONTRACEPTION.

    Part B of title II of the Public Health Service Act (42 U.S.C. 238 
et seq.) is amended by adding at the end the following:

``SEC. 249. DUTIES OF PHARMACIES TO ENSURE PROVISION OF FDA-APPROVED 
              CONTRACEPTION AND MEDICATION RELATED TO CONTRACEPTION.

    ``(a) In General.--Subject to subsection (c), a pharmacy that 
receives Food and Drug Administration-approved drugs or devices in 
interstate commerce shall maintain compliance with the following:
            ``(1) If a customer requests a contraceptive or a 
        medication related to a contraceptive that is in stock, the 
        pharmacy shall ensure that the contraceptive or the medication 
        related to a contraceptive is provided to the customer without 
        delay.
            ``(2) If a customer requests a contraceptive or a 
        medication related to a contraceptive that is not in stock and 
        the pharmacy in the normal course of business stocks 
        contraception or the medication related to contraception, the 
        pharmacy shall immediately inform the customer that the 
        contraceptive or the medication related to a contraceptive is 
        not in stock and without delay offer the customer the following 
        options:
                    ``(A) If the customer prefers to obtain the 
                contraceptive or the medication related to a 
                contraceptive through a referral or transfer, the 
                pharmacy shall--
                            ``(i) locate a pharmacy of the customer's 
                        choice or the closest pharmacy confirmed to 
                        have the contraceptive or the medication 
                        related to a contraceptive in stock; and
                            ``(ii) refer the customer or transfer the 
                        prescription to that pharmacy.
                    ``(B) If the customer prefers for the pharmacy to 
                order the contraceptive or the medication related to a 
                contraceptive, the pharmacy shall obtain the 
                contraceptive or the medication related to a 
                contraceptive under the pharmacy's standard procedure 
                for expedited ordering of medication and notify the 
                customer when the contraceptive or the medication 
                related to a contraceptive arrives.
            ``(3) The pharmacy shall ensure that--
                    ``(A) it does not operate an environment in which 
                customers are intimidated, threatened, or harassed in 
                the delivery of services relating to a request for 
                contraception or a medication related to contraception;
                    ``(B) its employees do not interfere with or 
                obstruct the delivery of services relating to a request 
                for contraception or a medication related to 
                contraception;
                    ``(C) its employees do not intentionally 
                misrepresent or deceive customers about the 
                availability of contraception or a medication related 
                to contraception or its mechanism of action;
                    ``(D) its employees do not breach medical 
                confidentiality with respect to a request for a 
                contraception or a medication related to contraception 
                or threaten to breach such confidentiality; or
                    ``(E) its employees do not refuse to return a 
                valid, lawful prescription for a contraception or a 
                medication related to contraception upon customer 
                request.
    ``(b) Contraceptives or Medication Related to a Contraceptive Not 
Ordinarily Stocked.--Nothing in subsection (a)(2) shall be construed to 
require any pharmacy to comply with such subsection if the pharmacy 
does not ordinarily stock contraceptives or medication related to a 
contraceptive in the normal course of business.
    ``(c) Refusals Pursuant to Standard Pharmacy Practice.--This 
section does not prohibit a pharmacy from refusing to provide a 
contraceptive or a medication related to a contraceptive to a customer 
in accordance with any of the following:
            ``(1) If it is unlawful to dispense the contraceptive or 
        the medication related to a contraceptive to the customer 
        without a valid, lawful prescription and no such prescription 
        is presented.
            ``(2) If the customer is unable to pay for the 
        contraceptive or the medication related to a contraceptive.
            ``(3) If the employee of the pharmacy refuses to provide 
        the contraceptive or the medication related to a contraceptive 
        on the basis of a professional clinical judgment.
    ``(d) Relation to Other Laws.--
            ``(1) Rule of construction.--Nothing in this section shall 
        be construed to invalidate or limit rights, remedies, 
        procedures, or legal standards under title VII of the Civil 
        Rights Act of 1964.
            ``(2) Certain claims.--The Religious Freedom Restoration 
        Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a 
        claim concerning, or a defense to a claim under, a covered 
        title, or provide a basis for challenging the application or 
        enforcement of a covered title.
    ``(e) Preemption.--This section does not preempt any provision of 
State law or any professional obligation made applicable by a State 
board or other entity responsible for licensing or discipline of 
pharmacies or pharmacists, to the extent that such State law or 
professional obligation provides protections for customers that are 
greater than the protections provided by this section.
    ``(f) Enforcement.--
            ``(1) Civil penalty.--A pharmacy that violates a 
        requirement of subsection (a) is liable to the United States 
        for a civil penalty in an amount not exceeding $1,000 per day 
        of violation, not to exceed $100,000 for all violations 
        adjudicated in a single proceeding.
            ``(2) Private cause of action.--Any person aggrieved as a 
        result of a violation of a requirement of subsection (a) may, 
        in any court of competent jurisdiction, commence a civil action 
        against the pharmacy involved to obtain appropriate relief, 
        including actual and punitive damages, injunctive relief, and a 
        reasonable attorney's fee and cost.
            ``(3) Limitations.--A civil action under paragraph (1) or 
        (2) may not be commenced against a pharmacy after the 
        expiration of the 5-year period beginning on the date on which 
        the pharmacy allegedly engaged in the violation involved.
    ``(g) Definitions.--In this section:
            ``(1) The term `contraception' or `contraceptive' means any 
        drug or device approved by the Food and Drug Administration to 
        prevent pregnancy.
            ``(2) The term `employee' means a person hired, by contract 
        or any other form of an agreement, by a pharmacy.
            ``(3) The term `medication related to contraception' or 
        `medication related to a contraceptive' means any drug or 
        device approved by the Food and Drug Administration that a 
        medical professional determines necessary to use before or in 
        conjunction with contraception or a contraceptive.
            ``(4) The term `pharmacy' means an entity that--
                    ``(A) is authorized by a State to engage in the 
                business of selling prescription drugs at retail; and
                    ``(B) employs one or more employees.
            ``(5) The term `product' means a Food and Drug 
        Administration-approved drug or device.
            ``(6) The term `professional clinical judgment' means the 
        use of professional knowledge and skills to form a clinical 
        judgment, in accordance with prevailing medical standards.
            ``(7) The term `without delay', with respect to a pharmacy 
        providing, providing a referral for, or ordering contraception 
        or a medication related to contraception, or transferring the 
        prescription for contraception or a medication related to 
        contraception, means within the usual and customary timeframe 
        at the pharmacy for providing, providing a referral for, or 
        ordering other products, or transferring the prescription for 
        other products, respectively.
    ``(h) Effective Date.--This section shall take effect on the 31st 
day after the date of the enactment of this section, without regard to 
whether the Secretary has issued any guidance or final rule regarding 
this section.''.
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