Title: Access to Birth Control Act
Policy area: Health

Summary:
Access to Birth Control Act
This bill requires pharmacies to comply with certain rules related to ensuring access to contraceptives.
Specifically, pharmacies must provide without delay a customer with any contraceptive or related medication that is in stock. If the contraceptive is not in stock, the pharmacy must immediately inform the customer and either order the contraceptive or refer the customer to a pharmacy that has it in stock. Laws in some states provide pharmacists with the right to refuse to dispense contraceptive-related drugs on religious or conscience grounds.
Pharmacies may refuse to provide a contraceptive to a customer (1) if the customer lacks a valid prescription for a prescription contraceptive or is unable to pay for the contraceptive, or (2) based on a pharmacy employee's professional clinical judgment.
The bill also establishes a private cause of action and civil monetary penalties for violations of the bill.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3223 Introduced in Senate (IS)]

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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.

    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. Access to 
        contraception helps 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), approximately 
        64,300,000 women had coverage of the full range of Food and 
        Drug Administration-approved contraceptive methods without cost 
        sharing in 2020.
            (3) The Patient Protection and Affordable Care Act saved 
        women $1,400,000,000 on birth control pills alone in 2013.
            (4) According to the Centers for Disease Control and 
        Prevention, nearly \2/3\ of women between the ages of 15 and 49 
        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, approximately 2,800,000 pregnancies, nearly 
        half of all pregnancies, in the United States are unintended.
            (7) Access to birth control helps people achieve their 
        goals of whether, and when, to get pregnant. However, studies 
        show that when people are unable to access contraceptive care 
        that fits their lives, they are more likely to face unintended 
        pregnancies.
            (8) Contraceptives are used for a range of medical purposes 
        in addition to preventing pregnancy, such as treating abnormal 
        cycles and endometriosis.
            (9) The Food and Drug Administration has approved multiple 
        emergency contraceptive methods 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 person's chance of unintended 
        pregnancy.
            (10) Legal contraception is a protected fundamental right 
        in the United States and should not be impeded by one 
        individual's personal beliefs.
            (11) Reports of pharmacists refusing to fill prescriptions 
        for contraceptives, including emergency contraceptives, or 
        provide emergency contraception over-the-counter 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.
            (12) One-third of women have experienced a delay in 
        accessing their contraception because of the ongoing 
        coronavirus pandemic. The Centers for Disease Control and 
        Prevention recognizes the importance of access to 
        contraception, particularly during the pandemic.
            (13) Pregnant people have a much higher risk of dying once 
        infected with COVID-19, which highlights the importance of 
        people being able to make and exercise decisions about whether 
        and when to become pregnant.

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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