II
119THCONGRESS
1
STSESSION S. 422
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
FEBRUARY5, 2025
Mr. M
ARKEY(for himself, Ms. DUCKWORTH, Ms. HIRONO, Ms. BALDWIN, Mr.
B
ENNET, Mr. BLUMENTHAL, Mr. BOOKER, Ms. BLUNTROCHESTER, Ms.
C
ANTWELL, Mr. COONS, Ms. CORTEZMASTO, Mr. DURBIN, Mr.
G
ALLEGO, Mrs. GILLIBRAND, Mr. HEINRICH, Mr. HICKENLOOPER, Mr.
K
AINE, Mr. KIM, Ms. KLOBUCHAR, Mr. MERKLEY, Mr. MURPHY, Mrs.
M
URRAY, Mr. OSSOFF, Mr. PADILLA, Mr. PETERS, Mr. REED, Ms.
R
OSEN, Mr. SANDERS, Mr. SCHATZ, Mrs. SHAHEEN, Ms. SLOTKIN, Ms.
S
MITH, Mr. VANHOLLEN, Mr. WARNER, Mr. WARNOCK, Ms. WARREN,
Mr. W
ELCH, Mr. WHITEHOUSE, Mr. WYDEN, and Mr. FETTERMAN) in-
troduced the following bill; which was read twice and referred to the Com-
mittee on Health, Education, 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
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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) C
ONTRACEPTION.—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) C
ONTRACEPTIVE.—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) G
OVERNMENT.—The term ‘‘government’’ 20
includes each branch, department, agency, instru-21
mentality, and official of the United States or a 22
State. 23
(4) H
EALTH CARE PROVIDER .—The term 24
‘‘health care provider’’ means any entity or indi-25
vidual (including any physician, certified nurse-mid-26
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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) S
TATE.—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
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(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
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(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
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(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
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(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
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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) States have tried to ban access to some or 11
all contraceptives by restricting access to public 12
funding for these products and services. Further-13
more, Arkansas, Mississippi, Missouri, and Texas 14
have infringed on people’s ability to access their con-15
traceptive care by violating the free choice of pro-16
vider requirement under the Medicaid program. 17
(23) Providers’ refusals to offer contraceptives 18
and information related to contraception based on 19
their own personal beliefs impede patients from ob-20
taining their preferred method of contraception, with 21
laws in 12 States as of the date of introduction of 22
this Act specifically allowing health care providers to 23
refuse to provide services related to contraception. 24
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(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
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(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) I
NGENERAL.—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) L
IMITATIONS ORREQUIREMENTS.—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
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(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) E
XCEPTION.—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) R
ULE OFCONSTRUCTION.—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
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510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, 1
and Cosmetic Act (21 U.S.C. 355, 360(k), 360c(f)(2), 2
360e, 360bbb–3) or section 351 of the Public Health Serv-3
ice Act (42 U.S.C. 262), or for the Federal Government 4
to enforce such approval, clearance, authorization, or li-5
censure. 6
SEC. 6. APPLICABILITY AND PREEMPTION. 7
(a) G
ENERALAPPLICATION.— 8
(1) I
N GENERAL.—Except as provided in sub-9
section (c), this Act supersedes and applies to the 10
law of the Federal Government and each State, and 11
the implementation of such law, whether statutory, 12
common law, or otherwise, and whether adopted be-13
fore or after the date of enactment of this Act. 14
(2) P
ROHIBITION.—Neither the Federal Gov-15
ernment nor any State may administer, implement, 16
or enforce any law, rule, regulation, standard, or 17
other provision having the force and effect of law in 18
a manner that— 19
(A) prohibits or restricts the sale, provi-20
sion, or use of any contraceptives; 21
(B) prohibits or restricts any individual 22
from aiding another individual in voluntarily 23
obtaining or using any contraceptives or contra-24
ceptive methods; or 25
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(C) exempts any contraceptives or contra-1
ceptive methods from any other generally appli-2
cable law in a way that would make it more dif-3
ficult to sell, provide, obtain, or use such con-4
traceptives or contraceptive methods. 5
(3) R
ELATIONSHIP WITH OTHER LAWS .—This 6
Act applies notwithstanding any other provision of 7
Federal law, including the Religious Freedom Res-8
toration Act of 1993 (42 U.S.C. 2000bb et seq.). 9
(b) S
UBSEQUENTLY ENACTEDFEDERALLEGISLA-10
TION.—Federal law enacted after the date of enactment 11
of this Act is subject to this Act, unless such law explicitly 12
excludes such application by reference to this Act. 13
(c) L
IMITATIONS.—The provisions of this Act shall 14
not supersede or otherwise affect any provision of Federal 15
law relating to coverage under (and shall not be construed 16
as requiring the provision of specific benefits under) group 17
health plans or group or individual health insurance cov-18
erage or coverage under a Federal health care program 19
(as defined in section 1128B(f) of the Social Security Act 20
(42 U.S.C. 1320a–7b(f))), including coverage provided 21
under section 1905(a)(4)(C) of the Social Security Act (42 22
U.S.C. 1396d(a)(4)(C)) and section 2713 of the Public 23
Health Service Act (42 U.S.C. 300gg–13). 24
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(d) DEFENSE.—In any cause of action against an in-1
dividual or entity who is subject to a limitation or require-2
ment that violates this Act, in addition to the remedies 3
specified in section 8, this Act shall also apply to, and 4
may be raised as a defense by, such an individual or entity. 5
(e) E
FFECTIVEDATE.—This Act shall take effect im-6
mediately upon the date of enactment of this Act. 7
SEC. 7. RULES OF CONSTRUCTION. 8
(a) I
NGENERAL.—In interpreting the provisions of 9
this Act, a court shall liberally construe such provisions 10
to effectuate the purposes described in section 4. 11
(b) R
ULE OFCONSTRUCTION.—Nothing in this Act 12
shall be construed— 13
(1) to authorize any government to interfere 14
with a health care provider’s ability to provide con-15
traceptives or information related to contraception 16
or a patient’s ability to obtain contraceptives or to 17
engage in contraception; or 18
(2) to permit or sanction the conduct of any 19
sterilization procedure without the patient’s vol-20
untary and informed consent. 21
(c) O
THERINDIVIDUALSCONSIDERED ASGOVERN-22
MENTOFFICIALS.—Any individual who, by operation of 23
a provision of Federal or State law, is permitted to imple-24
ment or enforce a limitation or requirement that violates 25
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section 5 shall be considered a government official for pur-1
poses of this Act. 2
SEC. 8. ENFORCEMENT. 3
(a) A
TTORNEYGENERAL.—The Attorney General 4
may commence a civil action on behalf of the United 5
States against any State that violates, or against any gov-6
ernment official (including an individual described in sec-7
tion 7(c)) that implements or enforces a limitation or re-8
quirement that violates, section 5. The court shall hold 9
unlawful and set aside the limitation or requirement if it 10
is in violation of this Act. 11
(b) P
RIVATERIGHT OFACTION.— 12
(1) I
N GENERAL.—Any individual or entity, in-13
cluding any health care provider or patient, ad-14
versely affected by an alleged violation of this Act, 15
may commence a civil action against any State that 16
violates, or against any government official (includ-17
ing an individual described in section 7(c)) that im-18
plements or enforces a limitation or requirement 19
that violates, section 5. The court shall hold unlaw-20
ful and set aside the limitation or requirement if it 21
is in violation of this Act. 22
(2) H
EALTH CARE PROVIDER .—A health care 23
provider may commence an action for relief on its 24
own behalf, on behalf of the provider’s staff, and on 25
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behalf of the provider’s patients who are or may be 1
adversely affected by an alleged violation of this Act. 2
(c) E
QUITABLERELIEF.—In any action under this 3
section, the court may award appropriate equitable relief, 4
including temporary, preliminary, and permanent injunc-5
tive relief. 6
(d) C
OSTS.—In any action under this section, the 7
court shall award costs of litigation, as well as reasonable 8
attorney’s fees, to any prevailing plaintiff. A plaintiff shall 9
not be liable to a defendant for costs or attorney’s fees 10
in any nonfrivolous action under this section. 11
(e) J
URISDICTION.—The district courts of the United 12
States shall have jurisdiction over proceedings under this 13
Act and shall exercise the same without regard to whether 14
the party aggrieved shall have exhausted any administra-15
tive or other remedies that may be provided for by law. 16
(f) A
BROGATION OF STATEIMMUNITY.—Neither a 17
State that enforces or maintains, nor a government official 18
(including an individual described in section 7(c)) who is 19
permitted to implement or enforce any limitation or re-20
quirement that violates section 5 shall be immune under 21
the Tenth Amendment to the Constitution of the United 22
States, the Eleventh Amendment to the Constitution of 23
the United States, or any other source of law, from an 24
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action in a Federal or State court of competent jurisdic-1
tion challenging that limitation or requirement. 2
SEC. 9. SEVERABILITY. 3
If any provision of this Act, or the application of such 4
provision to any individual, entity, government, or cir-5
cumstance, is held to be unconstitutional, the remainder 6
of this Act, or the application of such provision to all other 7
individuals, entities, governments, or circumstances, shall 8
not be affected thereby. 9
Æ
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