S. 422 — Right to Contraception Act

This section defines key terms for purposes of the Act, including: (1) contraception, as an action taken to prevent pregnancy, including the use of contraceptives or fertility-awareness-based methods and sterilization procedures; (2) contraceptive, as any drug, device, or biological product intended for use in preventing pregnancy that is approved, cleared, authorized, or licensed under specified FDA pathways (i.e., sections 505, 510(k), 513(f)(2), 515, or 564 of the Federal Food, Drug, and Cosmetic Act or section 351 of the Public Health Service Act); (3) government, as each branch, department, agency, instrumentality, and official of the United States or a State; (4) health care provider, as any entity or individual (e.g., physician, certified nurse-midwife, nurse practitioner, physician assistant, or pharmacist) licensed or authorized by a State to provide health care services; and (5) State, to include the 50 states, the District of Columbia, Puerto Rico, U.S. territories and possessions, Indian tribes, and their political subdivisions.

This section states 24 congressional findings recognizing the constitutional right to contraception (citing Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International), its status as essential health care that prevents unintended pregnancies and certain cancers while improving maternal and infant outcomes, the history of reproductive coercion against marginalized groups (e.g., Black, Indigenous, Puerto Rican, immigrant, and disabled women), barriers to access exacerbated by inequities, Congress's authority under the Commerce Clause, Section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause, past federal actions including title X family planning grants and Medicaid coverage (accounting for 75% of federal family planning funds), and certain state restrictions on public funding, provider refusals (authorized in 12 states), and expansive abortion definitions that include contraceptives.

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 enabling equal participation 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 expressly, effectively, implicitly, or as-implemented singles out such provision, providers, or facilities and impedes access, unless the defendant proves by clear and convincing evidence that the measure significantly advances access to contraceptives, contraception, or related information with no less restrictive alternative. It clarifies that nothing in the section limits the FDA Commissioner's authority to approve, clear, authorize, or license contraceptives under specified statutes, including section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355).

This section establishes the applicability of the Act, superseding and preempting federal and state laws—including those adopted before or after enactment—that prohibit or restrict (1) the sale, provision, or use of contraceptives; (2) aiding individuals in voluntarily obtaining or using contraceptives; or (3) exempting contraceptives from generally applicable laws in ways that hinder their sale, provision, obtainment, or use. The section applies notwithstanding other federal laws, including the Religious Freedom Restoration Act (42 U.S.C. 2000bb et seq.), and preempts subsequently enacted federal laws unless they explicitly exclude application of this Act; it does not affect federal laws on coverage under group health plans, group or individual health insurance, or federal health care programs (as defined in 42 U.S.C. 1320a-7b(f)), including under 42 U.S.C. 1396d(a)(4)(C) and 42 U.S.C. 300gg-13. The section authorizes its provisions as a defense in relevant actions and takes effect immediately upon enactment.

This section establishes rules of construction for interpreting the Act. Specifically, it (1) requires 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 contraceptives or engage in contraception, and does not permit sterilization procedures without a patient's voluntary and informed consent; and (3) deems any individual permitted by federal or state law to implement or enforce a limitation or requirement violating section 5 to be a government official for purposes of this Act.

This section establishes enforcement mechanisms for any state or government official (including individuals described in section 7(c)) that violates, implements, or enforces a limitation or requirement prohibited by section 5. Specifically, it (1) authorizes the Attorney General to commence a civil action on behalf of the United States, with courts required to hold unlawful and set aside any violating limitation or requirement; (2) creates a private right of action for any adversely affected individual, entity, health care provider, or patient (with providers able to sue on behalf of staff and patients); (3) authorizes courts to award equitable relief, including temporary, preliminary, and permanent injunctive relief; (4) requires courts to award costs and reasonable attorney's fees to prevailing plaintiffs (with no liability for plaintiffs in nonfrivolous actions); (5) grants U.S. district courts jurisdiction without requiring exhaustion of administrative remedies; and (6) abrogates state sovereign immunity under the Tenth and Eleventh Amendments or any other source of law for suits challenging violations. (Thus, federal or state courts must adjudicate such claims against states and officials.)

This section provides a severability clause, stating that if any provision of the Act, or its application to any person, entity, government, or circumstance, is held unconstitutional, the remainder of the Act and the application of that provision to others is unaffected.