[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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