118 S4381 PCS: Right to Contraception Act
U.S. Senate
2024-05-22
text/xml
EN
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II
Calendar No. 400
118th CONGRESS
2d Session
S. 4381
IN THE SENATE OF THE UNITED STATES
May 21, 2024
Mr. Markey (for himself, Ms. Baldwin, Mr. Bennet, Mr. Blumenthal, Mr. Booker, Mr. Brown, Ms. Butler, Ms. Cantwell, Mr. Cardin, Mr. Carper, Mr. Casey, Mr. Coons, Ms. Cortez Masto, Ms. Duckworth, Mr. Durbin, Mr. Fetterman, Mrs. Gillibrand, Ms. Hassan, Mr. Heinrich, Mr. Hickenlooper, Ms. Hirono, Mr. Kaine, Mr. Kelly, Mr. King, Ms. Klobuchar, Mr. Luján, Mr. Menendez, Mr. Merkley, Mr. Murphy, Mrs. Murray, Mr. Ossoff, Mr. Padilla, Mr. Peters, Mr. Reed, Ms. Rosen, Mr. Sanders, Mr. Schatz, Mr. Schumer, Mrs. Shaheen, Ms. Sinema, Ms. Smith, Ms. Stabenow, Mr. Tester, Mr. Van Hollen, Mr. Warner, Mr. Warnock, Ms. Warren, Mr. Welch, Mr. Whitehouse, and Mr. Wyden) introduced the following bill; which was read the first time
May 22, 2024
Read the second time and placed on the calendar
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.
1.

Short title
This Act may be cited as the “Right to Contraception Act” .
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.
3.

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.
4.

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.
5.

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 7, 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.
6.

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 3.
(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 4 shall be considered a government official for purposes of this Act.
7.

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 6(c)) that implements or enforces a limitation or requirement that violates, section 4. 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 6(c)) that implements or enforces a limitation or requirement that violates, section 4. 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 6(c)) who is permitted to implement or enforce any limitation or requirement that violates section 4 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.
8.

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.
May 22, 2024
Read the second time and placed on the calendar