[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4223 Introduced in Senate (IS)]
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118th CONGRESS
2d Session
S. 4223
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
May 1, 2024
Mr. Booker (for himself, Ms. Smith, Mr. Merkley, Mr. Blumenthal, Mr.
Kaine, Mr. Padilla, Mr. Whitehouse, Mr. Heinrich, Ms. Duckworth, Ms.
Warren, Ms. Rosen, Mr. Menendez, Ms. Butler, Mr. Murphy, Mr. Van
Hollen, Ms. Hirono, Mrs. Gillibrand, Mrs. Shaheen, Mr. Warner, Ms.
Baldwin, Mr. Wyden, Ms. Stabenow, and Mr. Brown) 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 people determine if and when to become
pregnant. Contraception is also a cornerstone of reproductive
autonomy and can help people fulfill their educational,
professional, and social aspirations.
(2) As a result of the enactment of the Patient Protection
and Affordable Care Act (Public Law 111-148), approximately
151,600,000 individuals in the United States were enrolled in
private health insurance plans in the United States in 2020,
including 58,000,000 women between the ages of 19 and 64 who
had coverage of contraceptive methods approved, cleared, or
authorized by the Food and Drug Administration without cost
sharing under such plans.
(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 and among sexually
active women who were not seeking pregnancy, nearly 9 in 10
have used contraception.
(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, people in the
United States face a myriad of barriers in accessing birth
control, including cost, geography, immigration status,
language access, discrimination, and stigma. These
contraceptive barriers are rooted in systemic inequities,
structural racism, and other forms of oppression in our health
care system and society.
(6) In 2019, approximately 2,293,000 pregnancies, nearly 42
percent of all pregnancies, in the United States were
unintended.
(7) Systemic racism and discrimination, as well as lack of
access to comprehensive sex education, exacerbates severe
health inequities and creates additional barriers to accessing
contraception; for example, due to high uninsured rates and
barriers, Hispanic women with low incomes experience a
significantly higher rate of unintended pregnancy (58 percent)
compared to their White counterparts (33 percent). In a 2023
study exploring challenges accessing contraceptive care among
people who identified as Asian American, Native Hawaiian, or
Pacific Islander, Black or African American, Indigenous, or
Latina/Latinx, 45 percent of respondents reported experiencing
at least one challenge accessing contraception in the past
year.
(8) In addition to preventing pregnancy, contraceptives are
used for a range of medical purposes, such as treating abnormal
uterine bleeding, irregular menstrual cycles, and
endometriosis, as well as for people managing other chronic
conditions, which are generally higher in communities of color
due to systemic discrimination.
(9) The Food and Drug Administration has approved, cleared,
or authorized 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. Additionally, in 2023, the Food
and Drug Administration approved the first over-the-counter
daily birth control pill which will give people of all ages
greater access to birth control options without a prescription.
(10) Contraception is a protected fundamental right in the
United States and access to contraception should not be impeded
by one individual's personal beliefs. Providers, including
pharmacists, play a key role in providing contraceptive
services and important information about prescription and over-
the-counter birth control options to people across the country.
It is critical that contraceptive care is provided to people of
all ages in a supportive way that is culturally appropriate and
delivered without stigma, bias, or delay.
(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) Since the Supreme Court decision in Dobbs v. Jackson
Women's Health Organization (142 S. Ct. 2228 (2022)), there
have been increased reports of people being denied birth
control at pharmacies.
(13) In 2022, the Department of Health and Human Services
issued guidance clarifying that refusing to dispense birth
control can be sex discrimination under section 1557 of the
Patient Protection and Affordable Care Act (42 U.S.C. 18116).
SEC. 3. DUTIES OF PHARMACIES TO ENSURE PROVISION OF 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 CONTRACEPTION
AND MEDICATION RELATED TO CONTRACEPTION.
``(a) In General.--Subject to subsection (c), a pharmacy that
receives drugs or devices approved, cleared, or authorized by the Food
and Drug Administration 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 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, cleared, or authorized 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, cleared, or authorized 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 drug or device approved,
cleared, or authorized by the Food and Drug Administration.
``(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 31 days after
the date of enactment of this section, without regard to whether the
Secretary has issued any guidance or final rule regarding this
section.''.
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