Right to Contraception Act

II 118TH CONGRESS 1ST SESSION S. 1999 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. IN THE SENATE OF THE UNITED STATES JUNE 14, 2023 Mr. MARKEY (for himself, Ms. HIRONO, Ms. DUCKWORTH, Mr. MERKLEY, Ms. WARREN, Mr. PADILLA, Mr. BLUMENTHAL, Mr. VAN HOLLEN, Mr. SCHATZ, Ms. CANTWELL, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Mr. WHITEHOUSE, Mr. WELCH, Ms. STABENOW, Mrs. MURRAY, Ms. BALD- WIN, Mr. HEINRICH, Mr. SANDERS, Mr. CARPER, Mr. REED, Ms. COR- TEZ MASTO, Mr. MENENDEZ, Mr. KAINE, Mr. WYDEN, Mr. HICKENLOOPER, Mr. CARDIN, Mr. WARNOCK, Mr. BROWN, Mr. FETTERMAN, Mrs. SHAHEEN, Mr. BENNET, Ms. SMITH, Mr. BOOKER, Mr. LUJA´N, Mr. WARNER, and Ms. ROSEN) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions 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, contra- ception, and information related to contraception. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1999 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Right to Contraception 2 Act’’. 3 SEC. 2. DEFINITIONS. 4 In this Act: 5 (1) CONTRACEPTION.—The term ‘‘contracep- 6 tion’’ means an action taken to prevent pregnancy, 7 including the use of contraceptives or fertility-aware- 8 ness-based methods and sterilization procedures. 9 (2) CONTRACEPTIVE.—The term ‘‘contracep- 10 tive’’ means any drug, device, or biological product 11 intended for use in the prevention of pregnancy, 12 whether specifically intended to prevent pregnancy 13 or for other health needs, that is approved, cleared, 14 authorized, or licensed under section 505, 510(k), 15 513(f)(2), 515, or 564 of the Federal Food, Drug, 16 and Cosmetic Act (21 U.S.C. 355, 360(k), 17 360c(f)(2), 360e, 360bbb–3) or section 351 of the 18 Public Health Service Act (42 U.S.C. 262). 19 (3) GOVERNMENT.—The term ‘‘government’’ 20 includes each branch, department, agency, instru- 21 mentality, and official of the United States or a 22 State. 23 (4) HEALTH CARE PROVIDER.—The term 24 ‘‘health care provider’’ means any entity or indi- 25 vidual (including any physician, certified nurse-mid- 26 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1999 IS wife, nurse, nurse practitioner, physician assistant, 1 and pharmacist) that is licensed or otherwise author- 2 ized by a State to provide health care services. 3 (5) STATE.—The term ‘‘State’’ includes each of 4 the 50 States, the District of Columbia, the Com- 5 monwealth of Puerto Rico, each territory and pos- 6 session of the United States, and each Indian Tribe 7 (as defined in section 4 of the Indian Self-Deter- 8 mination and Education Assistance Act (25 U.S.C. 9 5304)), and any political subdivision of any of the 10 foregoing, including any unit of local government, 11 such as a county, city, town, village, or other general 12 purpose political subdivision of a State. 13 SEC. 3. FINDINGS. 14 Congress finds the following: 15 (1) The right to contraception is a fundamental 16 right, central to an individual’s privacy, health, well- 17 being, dignity, liberty, equality, and ability to par- 18 ticipate in the social and economic life of the Nation. 19 (2) The Supreme Court has repeatedly recog- 20 nized the constitutional right to contraception. 21 (3) In Griswold v. Connecticut (381 U.S. 479 22 (1965)), the Supreme Court first recognized the con- 23 stitutional right for married people to use contracep- 24 tives. 25 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1999 IS (4) In Eisenstadt v. Baird (405 U.S. 438 1 (1972)), the Supreme Court confirmed the constitu- 2 tional right of all people to legally access contracep- 3 tives regardless of marital status. 4 (5) In Carey v. Population Services Inter- 5 national (431 U.S. 678 (1977)), the Supreme Court 6 affirmed the constitutional right to contraceptives 7 for minors. 8 (6) The right to contraception has been repeat- 9 edly recognized internationally as a human right. 10 The United Nations Population Fund has published 11 several reports outlining family planning as a basic 12 human right that advances women’s health, eco- 13 nomic empowerment, and equality. 14 (7) Access to contraceptives is internationally 15 recognized by the World Health Organization as ad- 16 vancing other human rights such as the right to life, 17 liberty, expression, health, work, and education. 18 (8) Contraception is safe, essential health care, 19 and access to contraceptive products and services is 20 central to people’s ability to participate equally in 21 economic and social life in the United States and 22 globally. Contraception allows people to make deci- 23 sions about their families and their lives. 24 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1999 IS (9) Contraception is key to sexual and repro- 1 ductive health. Contraception is critical to pre- 2 venting unintended pregnancy, and many contracep- 3 tives are highly effective in preventing and treating 4 a wide array of medical conditions and decrease the 5 risk of certain cancers. 6 (10) Contraception has been associated with 7 improved health outcomes for women, their families, 8 and their communities and reduces rates of maternal 9 and infant mortality and morbidity. 10 (11) The United States has a long history of 11 reproductive coercion, including the childbearing 12 forced upon enslaved women, as well as the forced 13 sterilization of Black women, Puerto Rican women, 14 indigenous women, immigrant women, and disabled 15 women, and reproductive coercion continues to 16 occur. This history also includes the coercive testing 17 of contraceptive pills on women and girls in Puerto 18 Rico. 19 (12) The right to make personal decisions about 20 contraceptive use is important for all Americans, 21 and is especially critical for historically marginalized 22 groups, including— 23 (A) Black, indigenous, and other people of 24 color; 25 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1999 IS (B) immigrants; 1 (C) LGBTQ+ people; 2 (D) people with disabilities; 3 (E) people paid low wages; and 4 (F) people living in rural and underserved 5 areas. 6 (13) Many people who are part of the 7 marginalized groups described in paragraph (12) al- 8 ready face barriers, exacerbated by social, political, 9 economic, and environmental inequities, to com- 10 prehensive health care, including reproductive health 11 care, that reduce their ability to make decisions 12 about their health, families, and lives. 13 (14) State and Federal policies governing phar- 14 maceutical and insurance policies affect the accessi- 15 bility of contraceptives and the settings in which 16 contraception services are delivered. 17 (15) People engage in interstate commerce to 18 access contraception services. 19 (16) To provide contraception services, health 20 care providers employ and obtain commercial serv- 21 ices from doctors, nurses, and other personnel who 22 engage in interstate commerce and travel across 23 State lines. 24 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1999 IS (17) Congress has the authority to enact this 1 Act to protect access to contraception pursuant to— 2 (A) its powers under the Commerce Clause 3 of section 8 of article I of the Constitution of 4 the United States; 5 (B) its powers under section 5 of the Four- 6 teenth Amendment to the Constitution of the 7 United States to enforce the provisions of sec- 8 tion 1 of the Fourteenth Amendment; and 9 (C) its powers under the necessary and 10 proper clause of section 8 of article I of the 11 Constitution of the United States. 12 (18) Congress has used its authority in the past 13 to protect and expand access to contraception infor- 14 mation, products, and services. 15 (19) In 1970, Congress established the family 16 planning program under title X of the Public Health 17 Service Act (42 U.S.C. 300 et seq.), the only Fed- 18 eral grant program dedicated to family planning and 19 related services, providing access to information, 20 products, and services for contraception. 21 (20) In 1972, Congress required the Medicaid 22 program to cover family planning services and sup- 23 plies and the Medicaid program currently accounts 24 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1999 IS for 75 percent of Federal funds spent on family 1 planning. 2 (21) In 2010, Congress enacted the Patient 3 Protection and Affordable Care Act (Public Law 4 111–148) (referred to in this section as the ‘‘ACA’’). 5 Among other provisions, the ACA included provi- 6 sions to expand the affordability and accessibility of 7 contraception by requiring health insurance plans to 8 provide coverage for preventive services with no pa- 9 tient cost-sharing. 10 (22) As of June 2023, at least 4 States tried 11 to ban access to some or all contraceptives by re- 12 stricting access to public funding for these products 13 and services. Furthermore, Arkansas, Mississippi, 14 Missouri, and Texas have infringed on people’s abil- 15 ity to access their contraceptive care by violating the 16 free choice of provider requirement under the Med- 17 icaid program. 18 (23) Providers’ refusals to offer contraceptives 19 and information related to contraception based on 20 their own personal beliefs impede patients from ob- 21 taining their preferred method of contraception, with 22 laws in 12 States as of the date of introduction of 23 this Act specifically allowing health care providers to 24 refuse to provide services related to contraception. 25 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1999 IS (24) States have attempted to define abortion 1 expansively so as to include contraceptives in State 2 bans on abortion and have also restricted access to 3 emergency contraception. 4 (25) Justice Thomas, in his concurring opinion 5 in Dobbs v. Jackson Women’s Health Organization 6 (142 S. Ct. 2228 (2022)), stated that the Supreme 7 Court ‘‘should reconsider all of this Court’s sub- 8 stantive due process precedents, including Griswold, 9 Lawrence, and Obergefell’’ and that the Court has 10 ‘‘a duty to correct the error established in those 11 precedents’’ by overruling them. 12 (26) In order to further public health and to 13 combat efforts to restrict access to reproductive 14 health care, congressional action is necessary to pro- 15 tect access to contraceptives, contraception, and in- 16 formation related to contraception for everyone, re- 17 gardless of actual or perceived race, ethnicity, sex 18 (including gender identity and sexual orientation), 19 income, disability, national origin, immigration sta- 20 tus, or geography. 21 SEC. 4. PURPOSES. 22 The purposes of this Act are— 23 (1) to provide a clear and comprehensive right 24 to contraception; 25 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1999 IS (2) to permit individuals to seek and obtain 1 contraceptives and engage in contraception, and to 2 permit health care providers to facilitate that care; 3 and 4 (3) to protect an individual’s ability to make de- 5 cisions about their body, medical care, family, and 6 life’s course, and thereby protect the individual’s 7 ability to participate equally in the economic and so- 8 cial life of the United States. 9 SEC. 5. PERMITTED SERVICES. 10 (a) IN GENERAL.—An individual has a statutory 11 right under this Act to obtain contraceptives and to volun- 12 tarily engage in contraception, free from coercion, and a 13 health care provider has a corresponding right to provide 14 contraceptives, contraception, and information, referrals, 15 and services related to contraception. 16 (b) LIMITATIONS OR REQUIREMENTS.—The statu- 17 tory rights specified in subsection (a) shall not be limited 18 or otherwise infringed through any limitation or require- 19 ment that— 20 (1) expressly, effectively, implicitly, or as-imple- 21 mented singles out— 22 (A) the provision of contraceptives, contra- 23 ception, or contraception-related information; 24 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1999 IS (B) health care providers who provide con- 1 traceptives, contraception, or contraception-re- 2 lated information; or 3 (C) facilities in which contraceptives, con- 4 traception, or contraception-related information 5 is provided; and 6 (2) impedes access to contraceptives, contracep- 7 tion, or contraception-related information. 8 (c) EXCEPTION.—To defend against a claim that a 9 limitation or requirement violates a health care provider’s 10 or individual’s statutory rights under subsection (b), a 11 party must establish, by clear and convincing evidence, 12 that— 13 (1) the limitation or requirement significantly 14 advances access to contraceptives, contraception, and 15 information related to contraception; and 16 (2) access to contraceptives, contraception, and 17 information related to contraception or the health of 18 patients cannot be advanced by a less restrictive al- 19 ternative measure or action. 20 (d) RULE OF CONSTRUCTION.—Nothing in this sec- 21 tion shall be construed to limit the authority of the Sec- 22 retary of Health and Human Services, acting through the 23 Commissioner of Food and Drugs, to approve, clear, au- 24 thorize, or license contraceptives under section 505, 25 VerDate Sep 11 2014 01:03 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1999.IS S1999 kjohnson on DSK79L0C42PROD with BILLS 12 [Text truncated for display. Full text available on Congress.gov.]