[Congressional Record Volume 172, Number 49 (Wednesday, March 18, 2026)]
[Senate]
[Pages S1278-S1279]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4630. Ms. HIRONO submitted an amendment intended to be proposed by
her to the bill S. 1383, to establish the Veterans Advisory Committee
on Equal Access, and for other purposes; which was ordered to lie on
the table; as follows:
Strike all after the enacting clause and insert the
following:
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) States have 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,
[[Page S1279]]
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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