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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 366
July 27, 2023 - Introduced by Representatives SUBECK, DRAKE, C. ANDERSON, J.
ANDERSON, ANDRACA, BALDEH, BARE, BILLINGS, CABRERA, CLANCY, CONLEY,
CONSIDINE, DOYLE, EMERSON, GOYKE, HAYWOOD, HONG, JACOBSON, JOERS,
MADISON, MCGUIRE, MOORE OMOKUNDE, MYERS, NEUBAUER, OHNSTAD,
ORTIZ-VELEZ, PALMERI, RATCLIFF, RIEMER, SHANKLAND, SHELTON, SINICKI,
SNODGRASS, STUBBS and VINING, cosponsored by Senators HESSELBEIN, ROYS,
PFAFF, AGARD, CARPENTER, L. JOHNSON, LARSON, SMITH, SPREITZER, TAYLOR and
WIRCH. Referred to Committee on State Affairs.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to create 253.078 of the statutes; relating to: statutory right to
contraception.
Analysis by the Legislative Reference Bureau
This bill establishes that a person has a statutory right to obtain contraceptives
and to engage in contraception and, further, that a health care provider has a
corresponding right to provide contraceptives, contraception, and
contraception-related information. Under the bill, these rights may not be limited
or otherwise infringed through any limitation or requirement that 1) expressly,
effectively, implicitly, or as implemented singles out the provision of contraceptives,
contraception, or contraception-related information; health care providers who
provide contraceptives, contraception, or contraception-related information; or
facilities in which contraceptives, contraception, or contraception-related
information is provided; and 2) impedes access to contraceptives, contraception, or
contraception-related information. The bill provides that a party may defend
against a claim that a limitation or requirement violates the rights established under
the bill by establishing, by clear and convincing evidence, both that the limitation or
requirement significantly advances the safety of contraceptives, contraception, and
contraception-related information and that the safety of contraceptives,
contraception, and contraception-related information or the health of patients
cannot be advanced by a less restrictive alternative measure or action.
The bill specifically provides that neither the state nor any political subdivision
of the 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 1)
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prohibits or restricts the sale, provision, or use of any contraceptives that have been
approved by the federal Food and Drug Administration (FDA) for contraceptive
purposes; 2) prohibits or restricts any person from aiding another person in
obtaining any contraceptives approved by the FDA or contraceptive methods; or 3)
exempts any contraceptives approved by the FDA from any other generally
applicable law in a way that would make it more difficult to sell, provide, obtain, or
use those contraceptives or contraceptive methods. The bill allows the attorney
general on behalf of the state or any individual or entity, including any health care
provider or patient, to bring a cause of action for a violation of the provisions of the
bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 253.078 of the statutes is created to read:
253.078 Right to contraception. (1) SHORT TITLE. This section shall be
known as the “Right to Contraception Act.”
(2) DEFINITIONS. In this section:
(a) “Contraception” means an action taken to prevent pregnancy, including the
use of contraceptives or fertility-awareness-based methods and sterilization
procedures.
(b) “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 legally marketed under the federal Food,
Drug, and Cosmetic Act, such as oral contraceptives, long-acting reversible
contraceptives, emergency contraceptives, internal and external condoms,
injectables, vaginal barrier methods, transdermal patches, and vaginal rings, or
other contraceptives.
(c) “Health care provider” has the meaning given in s. 146.81 (1).
(d) “Political subdivision" means a city, village, town, or county.
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(3) PERMITTED SERVICES. (a) A person has a statutory right under this section
to obtain contraceptives and to engage in contraception, and a health care provider
has a corresponding right to provide contraceptives, contraception, and
contraception-related information.
(b) The statutory rights specified in par. (a) may not be limited or otherwise
infringed through any limitation or requirement that does all of the following:
1. Expressly, effectively, implicitly, or as implemented singles out the provision
of contraceptives, contraception, or contraception-related information; health care
providers who provide contraceptives, contraception, or contraception-related
information; or facilities in which contraceptives, contraception, or
contraception-related information is provided.
2. Impedes access to contraceptives, contraception, or contraception-related
information.
(c) To defend against a claim that a limitation or requirement violates a health
care provider's or patient's statutory rights under par. (b), a party must establish, by
clear and convincing evidence, all of the following:
1. The limitation or requirement significantly advances the safety of
contraceptives, contraception, and contraception-related information.
2. The safety of contraceptives, contraception, and contraception-related
information or the health of patients cannot be advanced by a less restrictive
alternative measure or action.
(4) APPLICABILITY. (a) Neither the state nor any political subdivision of the 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 does any of the following:
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1. Prohibits or restricts the sale, provision, or use of any contraceptives that
have been approved by the federal food and drug administration for contraceptive
purposes.
2. Prohibits or restricts any person from aiding another person in obtaining any
contraceptives approved by the federal food and drug administration or
contraceptive methods.
3. Exempts any contraceptives approved by the federal food and drug
administration from any other generally applicable law in a way that would make
it more difficult to sell, provide, obtain, or use those contraceptives or contraceptive
methods.
(b) This section does not supersede or otherwise affect any provision relating
to coverage under group health plans or group or individual health insurance
coverage and may not be construed as requiring the provision of specific benefits
under these plans or coverage.
(c) An individual or entity who is subject to a limitation or requirement that
violates this section may raise this section as a defense to any cause of action against
the individual or entity.
(5) CONSTRUCTION. (a) This section shall be liberally construed to effectuate
its purposes.
(b) Nothing in this section may be construed to do any of the following:
1. Authorize any government to interfere with a health care provider's ability
to provide contraceptives or contraception-related information or a person's ability
to obtain contraceptives or to engage in contraception.
2. Permit or sanction the conduct of any sterilization procedure without the
patient's voluntary and informed consent.
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(6) ENFORCEMENT. (a) The attorney general may commence a civil action on
behalf of the state against any person that violates or enforces a limitation or
requirement that violates this section. Notwithstanding s. 165.08 (1), in any civil
action brought under this paragraph, the attorney general may compromise and
settle the action as the attorney general determines to be in the best interest of the
state.
(b) 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 person that violates or implements or enforces a limitation or
requirement that violates this section.
(c) 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.
(d) If a court finds that there has been a violation of this section, the court shall
hold unlawful and set aside the limitation or requirement. In any action under this
section, the court may award appropriate equitable relief, including temporary,
preliminary, or permanent injunctive relief.
(e) Notwithstanding the limitation under s. 814.04, in any action under this
section, the court shall award to any prevailing plaintiff costs and reasonable
attorney fees. Unless a court determines an action is frivolous, the court may not
hold a plaintiff liable to a defendant for costs and attorney fees in an action under
this section.
SECTION 2.0Nonstatutory provisions.
(1) LEGISLATIVE FINDINGS. The legislature finds all of the following:
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(a) The right to contraception is a fundamental right, central to a person's
privacy, health, well-being, dignity, liberty, equality, and ability to participate in the
social and economic life of the state.
(b) The U.S. Supreme Court has repeatedly recognized the constitutional right
to contraception.
(c) In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court
first recognized the constitutional right for married people to use contraceptives.
(d) In Eisenstadt v. Baird, 405 U.S. 438 (1972), the U.S. Supreme Court
confirmed the constitutional right of all people to legally access contraceptives
regardless of marital status.
(e) In Carey v. Population Services International, 431 U.S. 678 (1977), the U.S.
Supreme Court affirmed the constitutional right to contraceptives for minors.
(f) The right to contraceptives is protected by the Wisconsin Constitution. See
article I, section 1, of the Wisconsin Constitution; Haase v. Sawicki, 20 Wis. 2d 308,
310 n.2 (1963) (finding that article I, section 1, of the Wisconsin Constitution is
substantially the equivalent of the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment); Griswold v. Connecticut, 381 U.S. 479,
484-86 (1965) (finding that a prohibition on the use of contraceptives violates the
right to privacy created by several fundamental constitutional guarantees under the
U.S. Constitution); and Lawrence v. Texas, 539 U.S. 558, 573-74 (2003) (finding that
the Due Process Clause of the Fourteenth Amendment protects personal decisions
relating to marriage, procreation, contraception, family relationships, child rearing,
and education).
(g) The right to contraception has been repeatedly recognized internationally
as a human right. The United Nations Population Fund has published several
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reports outlining family planning as a basic human right that advances women's
health, economic empowerment, and equality.
(h) Access to contraceptives is internationally recognized by the World Health
Organization as advancing other human rights such as the right to life, liberty,
expression, health, work, and education.
(i) Contraception is safe, essential health care, and access to contraceptive
products and services is central to people's ability to participate equally in economic
and social life. Contraception allows people to make decisions about their families
and their lives.
(j) Contraception is key to sexual and reproductive health. Contraception is
critical to preventing unintended pregnancy, and many contraceptives are highly
effective in preventing and treating a wide array of often severe medical conditions
and decrease the risk of certain cancers.
(k) Family planning improves health outcomes for women, their families, and
their communities and reduces rates of maternal and infant mortality and morbidity.
(L) The United States has a long history of reproductive coercion, including the
childbearing forced upon enslaved women, as well as the forced sterilization of Black
women, Puerto Rican women, indigenous women, immigrant women, and disabled
women, and reproductive coercion continues to occur.
(m) The right to make personal decisions about contraceptive use is important
for all people, and is especially critical for historically marginalized groups,
including Black, indigenous, and other people of color; immigrants; lesbian, gay,
bisexual, transgender, and queer people; people with disabilities; people with low
incomes; and people living in rural and underserved areas. Many people who are
part of these marginalized groups already face barriers, exacerbated by social,
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political, economic, and environmental inequities, to comprehensive health care,
including reproductive health care, that reduce their ability to make decisions about
their health, families, and lives.
(n) Policies governing pharmaceutical and insurance policies affect the
accessibility of contraceptives and the settings in which contraception services are
delivered.
(o) Despite the clearly established constitutional right to contraception, access
to contraceptives, including emergency contraceptives and long-acting reversible
contraceptives, has been obstructed in various ways.
(p) As of June 2023, at least 4 states tried to ban access to some or all
contraceptives by restricting access to public funding for these products and services.
(q) Providers' refusals to offer contraceptives and contraception-related
information on the basis of their own personal beliefs impede patients from obtaining
their preferred method.
(r) States have attempted to define abortion expansively so as to include
contraceptives in state bans on abortion and have also restricted access to emergency
contraception.
(s) In June 2022, Justice Thomas, in his concurring opinion in Dobbs v. Jackson
Women's Health Organization, 142 S. Ct. 2228 (2022), stated that the U.S. Supreme
Court “should reconsider all of this Court's substantive due process precedents,
including Griswold, Lawrence, and Obergefell” and that the court has “a duty to
correct the error established in those precedents” by overruling them.
(t) In order to further public health and to combat efforts to restrict access to
reproductive health care, action is necessary to protect access to contraceptives,
contraception, and contraception-related information for everyone, regardless of
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actual or perceived race, ethnicity, sex, including gender identity and sexual
orientation, income, disability, national origin, immigration status, or geography.
(END)
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