H.R. 999 — Right to Contraception Act

This section establishes definitions for terms used in the Act, including (1) contraception as any action to prevent pregnancy, such as using contraceptives, fertility-awareness-based methods, or sterilization procedures; (2) contraceptive as any drug, device, or biological product intended to prevent pregnancy that is approved, cleared, authorized, or licensed under specified FDA authorities (i.e., 21 U.S.C. 355, 360(k), 360c(f)(2), 360e, or 360bbb–3) or 42 U.S.C. 262; (3) government; (4) health care provider; and (5) state.

This section declares congressional findings recognizing the right to contraception as fundamental to privacy, health, and equality; its affirmation in Supreme Court cases including Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Carey v. Population Services International (1977); its status as an international human right; its health benefits in preventing unintended pregnancies and certain cancers; the history of reproductive coercion in the United States; barriers to access for marginalized groups; state restrictions and provider refusals in 12 states; and Congress's authority under the Commerce Clause, Section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause to protect access, including through prior laws such as title X of the Public Health Service Act (established 1970), Medicaid family planning coverage (required 1972, now 75% of federal family planning funds), and the Affordable Care Act (2010).

This section states the purposes of the Act as (1) providing a clear and comprehensive right to contraception; (2) permitting individuals to seek and obtain contraceptives and engage in contraception, and permitting health care providers to facilitate that care; and (3) protecting an individual’s ability to make decisions about their body, medical care, family, and life’s course, thereby protecting the individual’s ability to participate equally in the economic and social life of the United States.

This section establishes a statutory right for individuals to obtain contraceptives and voluntarily engage in contraception free from coercion, and a corresponding right for health care providers to provide contraceptives, contraception, and related information, referrals, and services. It prohibits any limitation or requirement that singles out such provision, providers, or facilities and impedes access to them. To defend against a violation claim, a party must prove by clear and convincing evidence that the limitation or requirement significantly advances access to contraceptives and related information or patient health with no less restrictive alternative. The section includes a rule of construction preserving the authority of the Secretary of Health and Human Services, through the Food and Drug Administration, to approve, clear, authorize, or license contraceptives under specified provisions of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355, 360(k), 360c(f)(2), 360e, 360bbb-3) or section 351 of the Public Health Service Act (42 U.S.C. 262), and for the federal government to enforce such actions.

This section establishes the Act's applicability and preemptive effect over federal and state laws. It supersedes such laws—whether statutory, common law, or otherwise, and whether adopted before or after enactment—to prohibit the federal government or any state from administering or enforcing any provision that (1) prohibits or restricts the sale, provision, or use of contraceptives (as defined in section 2(2)); (2) prohibits or restricts aiding another individual in voluntarily obtaining or using contraceptives or methods; or (3) exempts contraceptives from generally applicable laws in a manner that hinders their sale, provision, use, or obtainment. The Act applies notwithstanding other federal laws, including the Religious Freedom Restoration Act (42 U.S.C. 2000bb et seq.), and subsequent federal laws are subject unless they explicitly exclude application by reference to this Act. This section specifies that the Act does not supersede or affect federal laws relating to coverage under group health plans, group or individual health insurance, or federal health care programs (as defined in section 1128B(f) of the Social Security Act (42 U.S.C. 1320a-7b(f))), including coverage under section 1905(a)(4)(C) of the Social Security Act (42 U.S.C. 1396d(a)(4)(C)) (Medicaid family planning services) and section 2713 of the Public Health Service Act (42 U.S.C. 300gg-13) (preventive services). It authorizes individuals or entities subject to a violating limitation or requirement to raise the Act as a defense, in addition to remedies under section 8, and takes effect immediately upon enactment.

This section establishes rules of construction for interpreting the Act. Specifically, it (1) directs courts to liberally construe the Act's provisions to effectuate the purposes described in section 4; (2) clarifies that the Act does not authorize government interference with health care providers' ability to provide contraceptives or related information, or patients' ability to obtain or engage in contraception, and does not permit sterilization procedures without a patient's voluntary and informed consent; and (3) deems any individual authorized by federal or state law to implement or enforce a limitation or requirement violating section 5 as a government official for purposes of the Act.

This section establishes civil enforcement mechanisms for violations of section 5. Specifically, it (1) authorizes the Attorney General to commence civil actions against violating states or government officials (including those described in section 7(c)), with courts required to hold unlawful and set aside any violating limitation or requirement; (2) provides a private right of action for any adversely affected individual or entity, including health care providers (who may sue on behalf of their staff and patients) and patients; (3) authorizes courts to award equitable relief, including temporary, preliminary, and permanent injunctive relief; (4) requires courts to award costs of litigation and reasonable attorney's fees to prevailing plaintiffs and shields nonfrivolous plaintiffs from liability for defendants' fees; (5) grants federal district courts jurisdiction over such actions without requiring exhaustion of administrative remedies; and (6) abrogates state sovereign immunity under the Tenth and Eleventh Amendments or other law for challenges to violating limitations or requirements.

This section includes a severability clause stating that if any provision of this Act, or its application to any individual, entity, government, or circumstance, is held unconstitutional, the remainder of the Act and the application of such provision to other individuals, entities, governments, or circumstances shall not be affected.