[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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