[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3357 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3357

To establish certain duties for pharmacies to ensure provision of Food 
and Drug Administration-approved contraception, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 13, 2010

 Mr. Lautenberg (for himself, Mr. Brown of Ohio, Mrs. Gillibrand, Mr. 
Wyden, Mr. Whitehouse, Mrs. Feinstein, and Mr. Franken) 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, 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) 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.
            (3) Each year, 3,000,000 pregnancies, nearly half of all 
        pregnancies, in the United States are unintended, and nearly 
        half of unintended pregnancies end in abortion.
            (4) Women rely on prescription contraceptives for a range 
        of medical purposes in addition to birth control, such as 
        regulation of cycles and endometriosis.
            (5) The Food and Drug Administration has declared emergency 
        contraception to be safe and effective in preventing unintended 
        pregnancy and has approved over-the-counter access to emergency 
        contraception for individuals aged 17 and older.
            (6) If taken soon after unprotected sex or primary 
        contraceptive failure, emergency contraception can 
        significantly reduce a woman's chance of unintended pregnancy.
            (7) Emergency contraception works like other hormonal birth 
        control by preventing pregnancy. It also does not harm or 
        terminate an already-established pregnancy.
            (8) Access to legal contraception is a protected 
        fundamental right in the United States and should not be 
        impeded by one individual's personal beliefs.
            (9) Reports of pharmacists refusing to fill prescriptions 
        for contraceptives, 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 York, North Carolina, 
        Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, 
        Washington, West Virginia, and Wisconsin. Since emergency 
        contraception became available without a prescription for 
        certain individuals, refusals to provide non-prescription 
        emergency contraception have also been reported.

SEC. 3. DUTIES OF PHARMACIES TO ENSURE PROVISION OF FDA-APPROVED 
              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.

    ``(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 that is in 
        stock, the pharmacy shall ensure that the contraceptive is 
        provided to the customer without delay.
            ``(2) If a customer requests a contraceptive that is not in 
        stock and the pharmacy in the normal course of business stocks 
        contraception, the pharmacy shall immediately inform the 
        customer that the contraceptive is not in stock and without 
        delay offer the customer the following options:
                    ``(A) If the customer prefers to obtain the 
                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 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, the pharmacy shall obtain the 
                contraceptive under the pharmacy's standard procedure 
                for expedited ordering of medication and notify the 
                customer when the contraceptive arrives.
            ``(3) The pharmacy shall ensure that its employees do not--
                    ``(A) intimidate, threaten, or harass customers in 
                the delivery of services relating to a request for 
                contraception;
                    ``(B) interfere with or obstruct the delivery of 
                services relating to a request for contraception;
                    ``(C) intentionally misrepresent or deceive 
                customers about the availability of contraception or 
                its mechanism of action;
                    ``(D) breach medical confidentiality with respect 
                to a request for contraception or threaten to breach 
                such confidentiality; or
                    ``(E) refuse to return a valid, lawful prescription 
                for contraception upon customer request.
    ``(b) Contraceptives 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 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 to a customer in accordance with any of the following:
            ``(1) If it is unlawful to dispense the 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.
            ``(3) If the employee of the pharmacy refuses to provide 
        the contraceptive on the basis of a professional clinical 
        judgment.
    ``(d) 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.
    ``(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 `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.
            ``(4) The term `product' means a Food and Drug 
        Administration-approved drug or device.
            ``(5) The term `professional clinical judgment' means the 
        use of professional knowledge and skills to form a clinical 
        judgment, in accordance with prevailing medical standards.
            ``(6) The term `without delay', with respect to a pharmacy 
        providing, providing a referral for, or ordering contraception, 
        or transferring the prescription for 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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