[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1999 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 1999
To protect an individual'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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 14, 2023
Mr. Markey (for himself, Ms. Hirono, Ms. Duckworth, Mr. Merkley, Ms.
Warren, Mr. Padilla, Mr. Blumenthal, Mr. Van Hollen, Mr. Schatz, Ms.
Cantwell, Mrs. Feinstein, Mrs. Gillibrand, Mr. Whitehouse, Mr. Welch,
Ms. Stabenow, Mrs. Murray, Ms. Baldwin, Mr. Heinrich, Mr. Sanders, Mr.
Carper, Mr. Reed, Ms. Cortez Masto, Mr. Menendez, Mr. Kaine, Mr. Wyden,
Mr. Hickenlooper, Mr. Cardin, Mr. Warnock, Mr. Brown, Mr. Fetterman,
Mrs. Shaheen, Mr. Bennet, Ms. Smith, Mr. Booker, Mr. Lujan, Mr. Warner,
and Ms. Rosen) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To protect an individual'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 approved,
cleared, authorized, or licensed under section 505, 510(k),
513(f)(2), 515, or 564 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 355, 360(k), 360c(f)(2), 360e, 360bbb-3) or
section 351 of the Public Health Service Act (42 U.S.C. 262).
(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 any entity or individual (including any
physician, certified nurse-midwife, nurse, nurse practitioner,
physician assistant, and pharmacist) that is licensed or
otherwise authorized by a 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, each territory and possession of the United States, and
each Indian Tribe (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)),
and any political 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 an individual'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 medical conditions and decrease the
risk of certain cancers.
(10) Contraception has been associated with improved 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.
This history also includes the coercive testing of
contraceptive pills on women and girls in Puerto Rico.
(12) The right to make personal decisions about
contraceptive use is important for all Americans, and is
especially critical for historically marginalized groups,
including--
(A) Black, indigenous, and other people of color;
(B) immigrants;
(C) LGBTQ+ people;
(D) people with disabilities;
(E) people paid low wages; and
(F) people living in rural and underserved areas.
(13) Many people who are part of the marginalized groups
described in paragraph (12) 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.
(14) State and Federal policies governing pharmaceutical
and insurance policies affect the accessibility of
contraceptives and the settings in which contraception services
are delivered.
(15) People engage in interstate commerce to access
contraception services.
(16) 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.
(17) 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.
(18) Congress has used its authority in the past to protect
and expand access to contraception information, products, and
services.
(19) 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.
(20) 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.
(21) 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.
(22) As of June 2023, 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 of contraception, 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) Justice Thomas, in his concurring opinion in Dobbs v.
Jackson Women's Health Organization (142 S. Ct. 2228 (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. PURPOSES.
The purposes of this Act are--
(1) to provide a clear and comprehensive right to
contraception;
(2) to permit individuals to seek and obtain contraceptives
and engage in contraception, and to permit health care
providers to facilitate that care; and
(3) to protect an individual's ability to make decisions
about their body, medical care, family, and life's course, and
thereby protect the individual's ability to participate equally
in the economic and social life of the United States.
SEC. 5. PERMITTED SERVICES.
(a) In General.--An individual has a statutory right under this Act
to obtain contraceptives and to voluntarily engage in contraception,
free from coercion, and a health care provider has a corresponding
right to provide contraceptives, contraception, and information,
referrals, and services 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--
(A) the provision of contraceptives, contraception,
or contraception-related information;
(B) health care providers who provide
contraceptives, contraception, or contraception-related
information; or
(C) 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 individual'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.
(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
approve, clear, authorize, or license contraceptives under section 505,
510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 355, 360(k), 360c(f)(2), 360e, 360bbb-3) or section 351
of the Public Health Service Act (42 U.S.C. 262), or for the Federal
Government to enforce such approval, clearance, authorization, or
licensure.
SEC. 6. APPLICABILITY AND PREEMPTION.
(a) General Application.--
(1) In general.--Except as provided in subsection (c), this
Act supersedes and applies to the law of the Federal Government
and each State, 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.
(2) Prohibition.--Neither the Federal Government nor any
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--
(A) prohibits or restricts the sale, provision, or
use of any contraceptives;
(B) prohibits or restricts any individual from
aiding another individual in voluntarily obtaining or
using any contraceptives or contraceptive methods; or
(C) exempts any 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.
(3) Relationship with other laws.--This Act applies
notwithstanding any other provision of Federal law, including
the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb
et seq.).
(b) Subsequently Enacted Federal Legislation.--Federal law enacted
after the date of enactment of this Act is subject to this Act, unless
such law explicitly excludes such application by reference to this Act.
(c) 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).
(d) 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 8, this Act shall
also apply to, and may be raised as a defense by, such an individual or
entity.
(e) Effective Date.--This Act shall take effect immediately upon
the date of enactment of this Act.
SEC. 7. RULES OF CONSTRUCTION.
(a) In General.--In interpreting the provisions of this Act, a
court shall liberally construe such provisions to effectuate the
purposes described in section 4.
(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
individual who, by operation of a provision of Federal or State law, is
permitted to implement or enforce a limitation or requirement that
violates section 5 shall be considered a government official for
purposes of this Act.
SEC. 8. 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 an individual described
in section 7(c)) that implements or enforces a limitation or
requirement that violates, section 5. 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 an individual described in section 7(c))
that implements or enforces a limitation or requirement that
violates, section 5. 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, and 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 nonfrivolous 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 an individual described
in section 7(c)) who is permitted to implement or enforce any
limitation or requirement that violates section 5 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. 9. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any individual, entity, government, or circumstance, is held to be
unconstitutional, the remainder of this Act, or the application of such
provision to all other individuals, entities, governments, or
circumstances, shall not be affected thereby.
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