[Congressional Record Volume 172, Number 50 (Thursday, March 19, 2026)]
[Senate]
[Pages S1407-S1408]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4705. Mr. MARKEY submitted an amendment intended to be proposed by
him 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:
At the appropriate place, insert the following:
SEC. __. RIGHT TO CONTRACEPTION ACT.
(a) Definitions.--In this section:
(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.
(b) Permitted Services.--
(1) In general.--An individual has a statutory right under
this section 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.
(2) Limitations or requirements.--The statutory rights
specified in paragraph (1) shall not be limited or otherwise
infringed through any limitation or requirement that--
(A) expressly, effectively, implicitly, or as-implemented
singles out--
(i) the provision of contraceptives, contraception, or
contraception-related information;
(ii) health care providers who provide contraceptives,
contraception, or contraception-related information; or
(iii) facilities in which contraceptives, contraception, or
contraception-related information is provided; and
(B) impedes access to contraceptives, contraception, or
contraception-related information.
(3) Exception.--To defend against a claim that a limitation
or requirement violates a health care provider's or
individual's statutory rights under paragraph (2), a party
must establish, by clear and convincing evidence, that--
(A) the limitation or requirement significantly advances
access to contraceptives, contraception, and information
related to contraception; and
(B) 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.
(4) Rule of construction.--Nothing in this subsection 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.
(c) Applicability and Preemption.--
(1) General application.--
(A) In general.--Except as provided in paragraph (3), this
section 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.
(B) 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--
(i) prohibits or restricts the sale, provision, or use of
any contraceptives;
(ii) prohibits or restricts any individual from aiding
another individual in voluntarily obtaining or using any
contraceptives or contraceptive methods; or
(iii) 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.
(C) Relationship with other laws.--This section applies
notwithstanding any other provision of Federal law, including
the Religious Freedom Restoration Act of 1993 (42 U.S.C.
2000bb et seq.).
(2) Subsequently enacted federal legislation.--Federal law
enacted after the date of enactment of this Act is subject to
this section, unless such law explicitly excludes such
application by reference to this section.
(3) Limitations.--The provisions of this section 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).
(4) Defense.--In any cause of action against an individual
or entity who is subject to a limitation or requirement that
violates this section, in addition to the remedies specified
in subsection (e), this section shall also apply to, and may
be raised as a defense by, such an individual or entity.
(5) Effective date.--This section shall take effect
immediately upon the date of enactment of this Act.
(d) Rules of Construction.--
(1) In general.--Nothing in this section shall be
construed--
(A) 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
[[Page S1408]]
to obtain contraceptives or to engage in contraception; or
(B) to permit or sanction the conduct of any sterilization
procedure without the patient's voluntary and informed
consent.
(2) 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 subsection (b) shall be
considered a government official for purposes of this
section.
(e) Enforcement.--
(1) 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 subsection (d)(2)) that implements
or enforces a limitation or requirement that violates,
subsection (b). The court shall hold unlawful and set aside
the limitation or requirement if it is in violation of this
section.
(2) Private right of action.--
(A) In general.--Any individual or entity, including any
health care provider or patient, adversely affected by an
alleged violation of this section, may commence a civil
action against any State that violates, or against any
government official (including an individual described in
subsection (d)(2)) that implements or enforces a limitation
or requirement that violates, subsection (b). The court shall
hold unlawful and set aside the limitation or requirement if
it is in violation of this section.
(B) 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 section.
(3) Equitable relief.--In any action under this subsection,
the court may award appropriate equitable relief, including
temporary, preliminary, and permanent injunctive relief.
(4) Costs.--In any action under this subsection, 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 subsection.
(5) Jurisdiction.--The district courts of the United States
shall have jurisdiction over proceedings under this section
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.
(6) Abrogation of state immunity.--Neither a State that
enforces or maintains, nor a government official (including
an individual described in subsection (d)(2)) who is
permitted to implement or enforce any limitation or
requirement that violates subsection (b) 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.
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