Access to Birth Control Act

I 116TH CONGRESS 1ST SESSION H. R. 2182 To establish certain duties for pharmacies to ensure provision of Food and Drug Administration-approved contraception, medication related to con- traception, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 9, 2019 Mrs. CAROLYN B. MALONEY of New York (for herself, Ms. NORTON, Ms. SPEIER, Mr. GRIJALVA, Ms. MOORE, Mr. CONNOLLY, Mr. DEFAZIO, and Ms. BONAMICI) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To establish certain duties for pharmacies to ensure provision of Food and Drug Administration-approved contracep- tion, medication related to contraception, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Access to Birth Control 4 Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds as follows: 7 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2182 IH (1) Family planning is basic health care. Access 1 to contraception helps prevent unintended pregnancy 2 and control the timing and spacing of planned 3 births. 4 (2) As a result of the enactment of the Patient 5 Protection and Affordable Care Act (Public Law 6 111–148), nearly 62,800,000 women now have cov- 7 erage of the full range of Food and Drug Adminis- 8 tration-approved contraceptive methods without cost 9 sharing. 10 (3) The Patient Protection and Affordable Care 11 Act saved women $1,400,000,000 on birth control 12 pills alone in 2013. 13 (4) Nearly 2⁄3 of women of reproductive age are 14 currently using a contraceptive method. 15 (5) Although the Centers for Disease Control 16 and Prevention included family planning in its pub- 17 lished list of the Ten Great Public Health Achieve- 18 ments in the 20th Century, the United States still 19 has one of the highest rates of unintended preg- 20 nancies among industrialized nations. 21 (6) Each year, 2,800,000 pregnancies, nearly 22 half of all pregnancies, in the United States are un- 23 intended, and nearly half of unintended pregnancies 24 end in abortion. 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2182 IH (7) Access to contraceptives at no cost has been 1 found to contribute to significantly lower rates of 2 unintended pregnancy and abortion. 3 (8) Women who do not use contraception, 4 women who have gaps in contraception, and women 5 who use contraception inconsistently or incorrectly 6 account for 95 percent of unintended pregnancies in 7 the United States. 8 (9) Prescription contraceptives are used for a 9 range of medical purposes in addition to birth con- 10 trol, such as regulation of cycles and endometriosis. 11 (10) The Food and Drug Administration has 12 approved emergency contraception as safe and effec- 13 tive in preventing unintended pregnancy and has ap- 14 proved over-the-counter access to some forms of 15 emergency contraception for all individuals, regard- 16 less of age. If taken soon after unprotected sex or 17 primary contraceptive failure, emergency contracep- 18 tion can significantly reduce a woman’s chance of 19 unintended pregnancy. 20 (11) Legal contraception is a protected funda- 21 mental right in the United States and should not be 22 impeded by one individual’s personal beliefs. 23 (12) Reports of pharmacists refusing to fill pre- 24 scriptions for contraceptives or provide emergency 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2182 IH contraception over-the-counter, including emergency 1 contraceptives, have surfaced in States across the 2 Nation, including Alabama, Arizona, California, the 3 District of Columbia, Georgia, Illinois, Louisiana, 4 Massachusetts, Michigan, Minnesota, Missouri, Mon- 5 tana, New Hampshire, New Mexico, New York, 6 North Carolina, Ohio, Oklahoma, Oregon, Rhode Is- 7 land, Tennessee, Texas, Washington, West Virginia, 8 and Wisconsin. 9 SEC. 3. DUTIES OF PHARMACIES TO ENSURE PROVISION OF 10 FDA-APPROVED CONTRACEPTION AND MEDI- 11 CATION RELATED TO CONTRACEPTION. 12 Part B of title II of the Public Health Service Act 13 (42 U.S.C. 238 et seq.) is amended by adding at the end 14 the following: 15 ‘‘SEC. 249. DUTIES OF PHARMACIES TO ENSURE PROVISION 16 OF FDA-APPROVED CONTRACEPTION AND 17 MEDICATION RELATED TO CONTRACEPTION. 18 ‘‘(a) IN GENERAL.—Subject to subsection (c), a 19 pharmacy that receives Food and Drug Administration- 20 approved drugs or devices in interstate commerce shall 21 maintain compliance with the following: 22 ‘‘(1) If a customer requests a contraceptive or 23 a medication related to a contraceptive that is in 24 stock, the pharmacy shall ensure that the contracep- 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2182 IH tive or the medication related to a contraceptive is 1 provided to the customer without delay. 2 ‘‘(2) If a customer requests a contraceptive or 3 a medication related to a contraceptive that is not 4 in stock and the pharmacy in the normal course of 5 business stocks contraception or the medication re- 6 lated to contraception, the pharmacy shall imme- 7 diately inform the customer that the contraceptive or 8 the medication related to a contraceptive is not in 9 stock and without delay offer the customer the fol- 10 lowing options: 11 ‘‘(A) If the customer prefers to obtain the 12 contraceptive or the medication related to a 13 contraceptive through a referral or transfer, the 14 pharmacy shall— 15 ‘‘(i) locate a pharmacy of the cus- 16 tomer’s choice or the closest pharmacy 17 confirmed to have the contraceptive or the 18 medication related to a contraceptive in 19 stock; and 20 ‘‘(ii) refer the customer or transfer 21 the prescription to that pharmacy. 22 ‘‘(B) If the customer prefers for the phar- 23 macy to order the contraceptive or the medica- 24 tion related to a contraceptive, the pharmacy 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2182 IH shall obtain the contraceptive or the medication 1 related to a contraceptive under the pharmacy’s 2 standard procedure for expedited ordering of 3 medication and notify the customer when the 4 contraceptive or the medication related to a 5 contraceptive arrives. 6 ‘‘(3) The pharmacy shall ensure that— 7 ‘‘(A) it does not operate an environment in 8 which customers are intimidated, threatened, or 9 harassed in the delivery of services relating to 10 a request for contraception or a medication re- 11 lated to contraception; 12 ‘‘(B) its employees do not interfere with or 13 obstruct the delivery of services relating to a re- 14 quest for contraception or a medication related 15 to contraception; 16 ‘‘(C) its employees do not intentionally 17 misrepresent or deceive customers about the 18 availability of contraception or a medication re- 19 lated to contraception or its mechanism of ac- 20 tion; 21 ‘‘(D) its employees do not breach medical 22 confidentiality with respect to a request for a 23 contraception or a medication related to contra- 24 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2182 IH ception or threaten to breach such confiden- 1 tiality; or 2 ‘‘(E) its employees do not refuse to return 3 a valid, lawful prescription for a contraception 4 or a medication related to contraception upon 5 customer request. 6 ‘‘(b) CONTRACEPTIVES OR MEDICATION RELATED TO 7 A CONTRACEPTIVE NOT ORDINARILY STOCKED.—Noth- 8 ing in subsection (a)(2) shall be construed to require any 9 pharmacy to comply with such subsection if the pharmacy 10 does not ordinarily stock contraceptives or medication re- 11 lated to a contraceptive in the normal course of business. 12 ‘‘(c) REFUSALS PURSUANT TO STANDARD PHAR- 13 MACY PRACTICE.—This section does not prohibit a phar- 14 macy from refusing to provide a contraceptive or a medi- 15 cation related to a contraceptive to a customer in accord- 16 ance with any of the following: 17 ‘‘(1) If it is unlawful to dispense the contracep- 18 tive or the medication related to a contraceptive to 19 the customer without a valid, lawful prescription and 20 no such prescription is presented. 21 ‘‘(2) If the customer is unable to pay for the 22 contraceptive or the medication related to a contra- 23 ceptive. 24 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2182 IH ‘‘(3) If the employee of the pharmacy refuses to 1 provide the contraceptive or the medication related 2 to a contraceptive on the basis of a professional clin- 3 ical judgment. 4 ‘‘(d) RELATION TO OTHER LAWS.— 5 ‘‘(1) RULE OF CONSTRUCTION.—Nothing in 6 this section shall be construed to invalidate or limit 7 rights, remedies, procedures, or legal standards 8 under title VII of the Civil Rights Act of 1964. 9 ‘‘(2) CERTAIN CLAIMS.—The Religious Free- 10 dom Restoration Act of 1993 (42 U.S.C. 2000bb et 11 seq.) shall not provide a claim concerning, or a de- 12 fense to a claim under, a covered title, or provide a 13 basis for challenging the application or enforcement 14 of a covered title. 15 ‘‘(e) PREEMPTION.—This section does not preempt 16 any provision of State law or any professional obligation 17 made applicable by a State board or other entity respon- 18 sible for licensing or discipline of pharmacies or phar- 19 macists, to the extent that such State law or professional 20 obligation provides protections for customers that are 21 greater than the protections provided by this section. 22 ‘‘(f) ENFORCEMENT.— 23 ‘‘(1) CIVIL PENALTY.—A pharmacy that vio- 24 lates a requirement of subsection (a) is liable to the 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2182 IH United States for a civil penalty in an amount not 1 exceeding $1,000 per day of violation, not to exceed 2 $100,000 for all violations adjudicated in a single 3 proceeding. 4 ‘‘(2) PRIVATE CAUSE OF ACTION.—Any person 5 aggrieved as a result of a violation of a requirement 6 of subsection (a) may, in any court of competent ju- 7 risdiction, commence a civil action against the phar- 8 macy involved to obtain appropriate relief, including 9 actual and punitive damages, injunctive relief, and a 10 reasonable attorney’s fee and cost. 11 ‘‘(3) LIMITATIONS.—A civil action under para- 12 graph (1) or (2) may not be commenced against a 13 pharmacy after the expiration of the 5-year period 14 beginning on the date on which the pharmacy alleg- 15 edly engaged in the violation involved. 16 ‘‘(g) DEFINITIONS.—In this section: 17 ‘‘(1) The term ‘contraception’ or ‘contraceptive’ 18 means any drug or device approved by the Food and 19 Drug Administration to prevent pregnancy. 20 ‘‘(2) The term ‘employee’ means a person hired, 21 by contract or any other form of an agreement, by 22 a pharmacy. 23 ‘‘(3) The term ‘medication related to contracep- 24 tion’ or ‘medication related to a contraceptive’ 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2182 IH means any drug or device approved by the Food and 1 Drug Administration that a medical professional de- 2 termines necessary to use before or in conjunction 3 with contraception or a contraceptive. 4 ‘‘(4) The term ‘pharmacy’ means an entity 5 that— 6 ‘‘(A) is authorized by a State to engage in 7 the business of selling prescription drugs at re- 8 tail; and 9 ‘‘(B) employs one or more employees. 10 ‘‘(5) The term ‘product’ means a Food and 11 Drug Administration-approved drug or device. 12 ‘‘(6) The term ‘professional clinical judgment’ 13 means the use of professional knowledge and skills 14 to form a clinical judgment, in accordance with pre- 15 vailing medical standards. 16 ‘‘(7) The term ‘without delay’, with respect to 17 a pharmacy providing, providing a referral for, or 18 ordering contraception or a medication related to 19 contraception, or transferring the prescription for 20 contraception or a medication related to contracep- 21 tion, means within the usual and customary time- 22 frame at the pharmacy for providing, providing a re- 23 ferral for, or ordering other products, or transferring 24 the prescription for other products, respectively. 25 VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2182 IH ‘‘(h) EFFECTIVE DATE.—This section shall take ef- 1 fect on the 31st day after the date of the enactment of 2 this section, without regard to whether the Secretary has 3 issued any guidance or final rule regarding this section.’’. 4 Æ VerDate Sep 11 2014 21:20 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H2182.IH H2182 pamtmann on DSKBFK8HB2PROD with BILLS