Right to Contraception Act

I 118TH CONGRESS 1ST SESSION H. R. 4121 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 HOUSE OF REPRESENTATIVES JUNE 14, 2023 Ms. MANNING (for herself, Ms. JACOBS, Ms. WILLIAMS of Georgia, Ms. CRAIG, Ms. BLUNT ROCHESTER, Mr. CONNOLLY, Mr. DOGGETT, Mr. CARTWRIGHT, Mr. LANDSMAN, Mr. MULLIN, Ms. CHU, Mrs. FLETCHER, Mr. SMITH of Washington, Mr. CLEAVER, Ms. NORTON, Mrs. MCBATH, Ms. SCANLON, Mr. QUIGLEY, Mr. SHERMAN, Ms. STEVENS, Ms. WILSON of Florida, Mr. GARAMENDI, Ms. PLASKETT, Mr. TAKANO, Ms. WASSERMAN SCHULTZ, Mr. CASTEN, Mr. CARTER of Louisiana, Mr. BOWMAN, Mr. BEYER, Mr. GRIJALVA, Ms. MCCOLLUM, Ms. CROCKETT, Ms. SCHAKOWSKY, Mr. MCGOVERN, Mr. PANETTA, Ms. VELA´ZQUEZ, Ms. LEE of California, Ms. BARRAGA´N, Mr. SOTO, Ms. BONAMICI, Mr. GOMEZ, Mr. TRONE, Mr. POCAN, Ms. JACKSON LEE, Ms. TITUS, Mr. ALLRED, Mr. CARBAJAL, Ms. MATSUI, Ms. DELAURO, Mr. PAYNE, Mrs. WATSON COLEMAN, Mr. MENENDEZ, Ms. DELBENE, Ms. KELLY of Illi- nois, Mr. EVANS, Mr. VARGAS, Ms. MOORE of Wisconsin, Ms. BALINT, Ms. TLAIB, Mr. BERA, Mr. NEGUSE, Ms. CLARKE of New York, Mr. TONKO, Mr. FOSTER, Mr. MOULTON, Mr. GOTTHEIMER, Ms. STANSBURY, Mr. PETERS, Mr. DELUZIO, Ms. MENG, Mr. MORELLE, Ms. GARCIA of Texas, Ms. ROSS, Mr. NICKEL, Ms. WILD, Ms. CASTOR of Florida, Mr. CA´RDENAS, Ms. ADAMS, Mr. GREEN of Texas, Ms. SPANBERGER, Ms. PRESSLEY, Mr. SORENSEN, Mrs. NAPOLITANO, Ms. LOIS FRANKEL of Florida, Mrs. FOUSHEE, Mrs. BEATTY, Ms. SCHRIER, Mrs. HAYES, Mrs. MCCLELLAN, Ms. OMAR, Mr. GALLEGO, Mr. KIM of New Jersey, Mr. LIEU, Mr. BLUMENAUER, Ms. PORTER, Mr. CORREA, Ms. SALINAS, Ms. BROWN, Mr. KILMER, Mr. LARSEN of Washington, Ms. ESCOBAR, Ms. CLARK of Massachusetts, Mr. NADLER, Mr. KHANNA, Ms. TOKUDA, Mr. IVEY, Mrs. TRAHAN, Ms. CARAVEO, Mr. RASKIN, Mr. MFUME, Mr. KILDEE, Mr. CASE, Ms. SHERRILL, Mr. SARBANES, Mr. JOHNSON of Georgia, Mr. AUCHINCLOSS, Ms. KAMLAGER-DOVE, and Ms. PINGREE) introduced the following bill; which was referred to the Com- mittee on Energy and Commerce VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 4121 IH 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Right to Contraception 4 Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) CONTRACEPTION.—The term ‘‘contracep- 8 tion’’ means an action taken to prevent pregnancy, 9 including the use of contraceptives or fertility-aware- 10 ness-based methods and sterilization procedures. 11 (2) CONTRACEPTIVE.—The term ‘‘contracep- 12 tive’’ means any drug, device, or biological product 13 intended for use in the prevention of pregnancy, 14 whether specifically intended to prevent pregnancy 15 or for other health needs, that is approved, cleared, 16 authorized, or licensed under section 505, 510(k), 17 513(f)(2), 515, or 564 of the Federal Food, Drug, 18 and Cosmetic Act (21 U.S.C. 355, 360(k), 19 360c(f)(2), 360e, 360bbb–3) or section 351 of the 20 Public Health Service Act (42 U.S.C. 262). 21 VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 4121 IH (3) GOVERNMENT.—The term ‘‘government’’ 1 includes each branch, department, agency, instru- 2 mentality, and official of the United States or a 3 State. 4 (4) HEALTH CARE PROVIDER.—The term 5 ‘‘health care provider’’ means any entity or indi- 6 vidual (including any physician, certified nurse-mid- 7 wife, nurse, nurse practitioner, physician assistant, 8 and pharmacist) that is licensed or otherwise author- 9 ized by a State to provide health care services. 10 (5) STATE.—The term ‘‘State’’ includes each of 11 the 50 States, the District of Columbia, the Com- 12 monwealth of Puerto Rico, and each territory and 13 possession of the United States, and any political 14 subdivision of any of the foregoing, including any 15 unit of local government, such as a county, city, 16 town, village, or other general purpose political sub- 17 division of a State. 18 SEC. 3. FINDINGS. 19 Congress finds the following: 20 (1) The right to contraception is a fundamental 21 right, central to an individual’s privacy, health, well- 22 being, dignity, liberty, equality, and ability to par- 23 ticipate in the social and economic life of the Nation. 24 VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 4121 IH (2) The Supreme Court has repeatedly recog- 1 nized the constitutional right to contraception. 2 (3) In Griswold v. Connecticut (381 U.S. 479 3 (1965)), the Supreme Court first recognized the con- 4 stitutional right for married people to use contracep- 5 tives. 6 (4) In Eisenstadt v. Baird (405 U.S. 438 7 (1972)), the Supreme Court confirmed the constitu- 8 tional right of all people to legally access contracep- 9 tives regardless of marital status. 10 (5) In Carey v. Population Services Inter- 11 national (431 U.S. 678 (1977)), the Supreme Court 12 affirmed the constitutional right to contraceptives 13 for minors. 14 (6) The right to contraception has been repeat- 15 edly recognized internationally as a human right. 16 The United Nations Population Fund has published 17 several reports outlining family planning as a basic 18 human right that advances women’s health, eco- 19 nomic empowerment, and equality. 20 (7) Access to contraceptives is internationally 21 recognized by the World Health Organization as ad- 22 vancing other human rights such as the right to life, 23 liberty, expression, health, work, and education. 24 VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 4121 IH (8) Contraception is safe, essential health care, 1 and access to contraceptive products and services is 2 central to people’s ability to participate equally in 3 economic and social life in the United States and 4 globally. Contraception allows people to make deci- 5 sions about their families and their lives. 6 (9) Contraception is key to sexual and repro- 7 ductive health. Contraception is critical to pre- 8 venting unintended pregnancy, and many contracep- 9 tives are highly effective in preventing and treating 10 a wide array of medical conditions and decrease the 11 risk of certain cancers. 12 (10) Contraception has been associated with 13 improved health outcomes for women, their families, 14 and their communities and reduces rates of maternal 15 and infant mortality and morbidity. 16 (11) The United States has a long history of 17 reproductive coercion, including the childbearing 18 forced upon enslaved women, as well as the forced 19 sterilization of Black women, Puerto Rican women, 20 indigenous women, immigrant women, and disabled 21 women, and reproductive coercion continues to 22 occur. This history also includes the coercive testing 23 of contraceptive pills on women and girls in Puerto 24 Rico. 25 VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 4121 IH (12) The right to make personal decisions about 1 contraceptive use is important for all Americans, 2 and is especially critical for historically marginalized 3 groups, including Black, indigenous, and other peo- 4 ple of color; immigrants; LGBTQ+ people; people 5 with disabilities; people paid low wages; and people 6 living in rural and underserved areas. 7 (13) Many people who are part of the 8 marginalized groups described in paragraph (12) al- 9 ready face barriers, exacerbated by social, political, 10 economic, and environmental inequities, to com- 11 prehensive health care, including reproductive health 12 care, that reduce their ability to make decisions 13 about their health, families, and lives. 14 (14) State and Federal policies governing phar- 15 maceutical and insurance policies affect the accessi- 16 bility of contraceptives and the settings in which 17 contraception services are delivered. 18 (15) People engage in interstate commerce to 19 access contraception services. 20 (16) To provide contraception services, health 21 care providers employ and obtain commercial serv- 22 ices from doctors, nurses, and other personnel who 23 engage in interstate commerce and travel across 24 State lines. 25 VerDate Sep 11 2014 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 4121 IH (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 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 4121 IH 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 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 4121 IH (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 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 4121 IH (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 01:06 Jul 08, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4121.IH H4121 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 4121 IH (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. 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