[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8373 Engrossed in House (EH)]
<DOC>
117th CONGRESS
2d Session
H. R. 8373
_______________________________________________________________________
AN ACT
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, wellbeing, 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 by
Federal and State governments.
(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) General Rule.--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
access to contraceptives, contraception, and information
related to contraception; and
(2) access to contraceptives, contraception, and
information related to contraception or the health of patients
cannot be advanced by a less restrictive alternative measure or
action.
SEC. 5. APPLICABILITY AND PREEMPTION.
(a) In General.--
(1) General application.--Except as stated under subsection
(b), this Act supersedes and applies to the law of the Federal
Government and each State government, and the implementation of
such law, whether statutory, common law, or otherwise, and
whether adopted before or after the date of enactment of this
Act, and neither the Federal Government nor any State
government shall administer, implement, or enforce any law,
rule, regulation, standard, or other provision having the force
and effect of law that conflicts with any provision of this
Act, notwithstanding any other provision of Federal law,
including the Religious Freedom Restoration Act of 1993 (42
U.S.C. 2000bb et seq.).
(2) Subsequently enacted federal legislation.--Federal
statutory law adopted after the date of the enactment of this
Act is subject to this Act unless such law explicitly excludes
such application by reference to this Act.
(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 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) 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) Rules 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.
Passed the House of Representatives July 21, 2022.
Attest:
Clerk.
117th CONGRESS
2d Session
H. R. 8373
_______________________________________________________________________
AN ACT
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.