Florida Senate - 2024                                    SB 1446
       
       
        
       By Senator Osgood
       
       
       
       
       
       32-01390-24                                           20241446__
    1                        A bill to be entitled                      
    2         An act relating to access to contraception; creating
    3         s. 381.998, F.S.; providing a short title; providing
    4         definitions; authorizing a person to obtain
    5         contraceptives and engage in contraception;
    6         authorizing a health care provider to provide
    7         contraceptives, contraception, and contraception
    8         related information; providing requirements for a
    9         defense to certain violations; authorizing the
   10         Attorney General, a person, or an entity to bring
   11         enforcement actions under certain circumstances;
   12         authorizing civil penalties; providing applicability
   13         and construction; providing an effective date.
   14  
   15         WHEREAS, the right to contraception is a fundamental right,
   16  central to a person’s privacy, health, well-being, dignity,
   17  liberty, equality, and ability to participate in the social and
   18  economic life of this state, and
   19         WHEREAS, the United States Supreme Court has repeatedly
   20  recognized the constitutional right to contraception, and
   21         WHEREAS, in Griswold v. Connecticut, 381 U.S. 479 (1965),
   22  the United States Supreme Court first recognized the
   23  constitutional right of married people to use contraceptives,
   24  and
   25         WHEREAS, in Eisenstadt v. Baird, 405 U.S. 438 (1972), the
   26  United States Supreme Court confirmed the constitutional right
   27  of all people to legally access contraceptives regardless of
   28  marital status, and
   29         WHEREAS, in Carey v. Population Services International, 431
   30  U.S. 678 (1977), the United States Supreme Court affirmed the
   31  constitutional right to contraceptives for minors, and
   32         WHEREAS, the right to contraception has been repeatedly
   33  recognized internationally as a human right, and
   34         WHEREAS, the United Nations Population Fund has published
   35  several reports outlining family planning as a basic human right
   36  that advances women’s health, economic empowerment, and
   37  equality, and
   38         WHEREAS, access to contraceptives is internationally
   39  recognized by the World Health Organization as advancing other
   40  human rights, such as the rights to life, liberty, expression,
   41  health, work, and education, and
   42         WHEREAS, contraception is safe, essential health care, and
   43  access to contraceptive products and services is central to
   44  people’s ability to participate equally in economic and social
   45  life, allowing people to make decisions about their families and
   46  their lives, and
   47         WHEREAS, contraception is key to sexual and reproductive
   48  health and is critical to preventing unintended pregnancy, and
   49  many contraceptives are highly effective in preventing and
   50  treating a wide array of often severe medical conditions and
   51  decrease the risk of certain cancers, and
   52         WHEREAS, family planning improves health outcomes for
   53  women, their families, and their communities and reduces rates
   54  of maternal and infant mortality and morbidity, and
   55         WHEREAS, the United States has a long history of
   56  reproductive coercion, including the childbearing forced upon
   57  enslaved women, as well as the forced sterilization of Black
   58  women, Puerto Rican women, indigenous women, immigrant women,
   59  and disabled women, and reproductive coercion continues to
   60  occur, and
   61         WHEREAS, the right to make personal decisions about
   62  contraceptive use is important for all people, and is especially
   63  critical for historically marginalized groups, including Black,
   64  indigenous, and other people of color; immigrants; lesbian, gay,
   65  bisexual, transgender, and queer people; people with
   66  disabilities; people with low incomes; and people living in
   67  rural and underserved areas, and
   68         WHEREAS, many people who are part of these marginalized
   69  groups already face barriers, exacerbated by social, political,
   70  economic, and environmental inequities, to comprehensive health
   71  care, including reproductive health care, which reduce their
   72  ability to make decisions about their health, families, and
   73  lives, and
   74         WHEREAS, policies governing pharmaceutical and insurance
   75  policies affect the accessibility of contraceptives and the
   76  settings in which contraception services are delivered, and
   77         WHEREAS, despite the clearly established constitutional
   78  right to contraception, access to contraceptives, including
   79  emergency contraceptives and long-acting reversible
   80  contraceptives, has been obstructed in various ways, and
   81         WHEREAS, as of June 2023, at least four states had tried to
   82  ban access to some or all contraceptives by restricting access
   83  to public funding for these products and services, and
   84         WHEREAS, health care providers’ refusals to offer
   85  contraceptives and contraception-related information on the
   86  basis of their own personal beliefs impede patients from
   87  obtaining their preferred method of contraception, and
   88         WHEREAS, states have attempted to define abortion
   89  expansively so as to include contraceptives in state bans on
   90  abortion and have also restricted access to emergency
   91  contraception, and
   92         WHEREAS, in June 2022, Justice Thomas, in his concurring
   93  opinion in Dobbs v. Jackson Women’s Health Organization, 142 S.
   94  Ct. 2228 (2022), stated that the United States Supreme Court
   95  “should reconsider all of this Court’s substantive due process
   96  precedents, including Griswold, Lawrence, and Obergefell” and
   97  that the court has “a duty to correct the error established in
   98  those precedents” by overruling them, and
   99         WHEREAS, in order to further public health and to combat
  100  efforts to restrict access to reproductive health care, action
  101  is necessary to protect access to contraceptives, contraception,
  102  and contraception-related information for everyone, regardless
  103  of actual or perceived race, ethnicity, sex, including gender
  104  identity and sexual orientation, income, disability, national
  105  origin, immigration status, or geography, NOW, THEREFORE,
  106  
  107  Be It Enacted by the Legislature of the State of Florida:
  108  
  109         Section 1. Section 381.998, Florida Statutes, is created to
  110  read:
  111         381.998Right to contraception.—
  112         (1)This section may be cited as the “Right to
  113  Contraception Act.”
  114         (2)As used in this section, the term:
  115         (a)“Contraception” means an action taken to prevent
  116  pregnancy, including the use of contraceptives or fertility
  117  awareness-based methods and sterilization procedures.
  118         (b)“Contraceptive” means any drug, device, or biological
  119  product intended for use in the prevention of pregnancy, whether
  120  specifically intended to prevent pregnancy or for other health
  121  needs, which is legally marketed under the Federal Food, Drug,
  122  and Cosmetic Act, such as oral contraceptives, long-acting
  123  reversible contraceptives, emergency contraceptives, internal
  124  and external condoms, injectables, vaginal barrier methods,
  125  transdermal patches, and vaginal rings or other contraceptives.
  126         (c)“Health care provider” has the same meaning as in s.
  127  381.00321(1).
  128         (d)“Political subdivision” has the same meaning as in s.
  129  1.01(8).
  130         (3)(a)A person may obtain contraceptives and engage in
  131  contraception, and a health care provider may provide
  132  contraceptives, contraception, and contraception-related
  133  information.
  134         (b)This subsection does not limit any of the following:
  135         1.Expressly, effectively, implicitly, or as implemented,
  136  the provision of contraceptives, contraception, or
  137  contraception-related information; health care providers who
  138  provide contraceptives, contraception, or contraception-related
  139  information; or facilities in which contraceptives,
  140  contraception, or contraception-related information is provided.
  141         2.Access to contraceptives, contraception, or
  142  contraception-related information.
  143         (c)For a defense against a claim that a limitation or
  144  requirement violates a health care provider’s or patient’s
  145  rights under paragraph (b), a party must establish, by clear and
  146  convincing evidence, all of the following:
  147         1.The limitation or requirement significantly advances the
  148  safety of contraceptives, contraception, and contraception
  149  related information.
  150         2.The safety of contraceptives, contraception, and
  151  contraception-related information or the health of patients
  152  cannot be advanced by a less restrictive alternative measure or
  153  action.
  154         (4)(a)The state or any political subdivision may not
  155  administer, implement, or enforce any law, rule, regulation,
  156  standard, or other provision having the force and effect of law
  157  in a manner that:
  158         1.Prohibits or restricts the sale, provision, or use of
  159  any contraceptives that have been approved by the federal Food
  160  and Drug Administration for contraceptive purposes.
  161         2.Prohibits or restricts any person from obtaining or
  162  aiding another person in obtaining any contraceptives approved
  163  by the federal Food and Drug Administration or using any
  164  contraceptive method.
  165         3.Exempts any contraceptives approved by the federal Food
  166  and Drug Administration from any other general law in a way that
  167  would make it more difficult to sell, provide, obtain, or use
  168  those contraceptives or contraceptive methods.
  169         (b)This section does not supersede or otherwise affect any
  170  provision relating to coverage under group health plans or group
  171  or individual health insurance coverage and may not be construed
  172  as requiring the provision of specific benefits under these
  173  plans or coverage.
  174         (c)An individual or entity who is subject to a limitation
  175  or requirement that violates this section has an affirmative
  176  defense to any cause of action brought under this section
  177  against the individual or entity.
  178         (5)(a)This section must be liberally construed to
  179  effectuate its purposes.
  180         (b)This section does not:
  181         1.Authorize the state or a political subdivision to
  182  interfere with a health care provider’s ability to provide
  183  contraceptives or contraception-related information or a
  184  person’s ability to obtain contraceptives or to engage in
  185  contraception.
  186         2.Authorize or sanction the conduct of any sterilization
  187  procedure without the patient’s voluntary and informed consent.
  188         (6)(a)The Attorney General may commence a civil action on
  189  behalf of the state against any person that violates or enforces
  190  a limitation or requirement that violates this section. In any
  191  civil action brought under this paragraph, the Attorney General
  192  may compromise and settle the action as he or she determines is
  193  in the best interest of the state.
  194         (b)Any person or entity, including a health care provider
  195  or patient, adversely affected by an alleged violation of this
  196  section may commence a civil action against any person that
  197  violates, implements, or enforces a limitation or a requirement
  198  that violates this section.
  199         (c)A health care provider may commence an action for
  200  relief on its own behalf, on behalf of the health care
  201  provider’s staff, and on behalf of the health care provider’s
  202  patients who are or may be adversely affected by an alleged
  203  violation of this section.
  204         (d)If a court finds that there has been a violation of
  205  this section, the court must hold unlawful and set aside the
  206  limitation or requirement. In any action under this section, the
  207  court may award appropriate equitable relief, including
  208  temporary, preliminary, or permanent injunctive relief.
  209         (e)The court shall award to any prevailing plaintiff
  210  attorney fees and costs. Unless a court determines an action is
  211  frivolous, the court may not hold a plaintiff liable to a
  212  defendant for attorney fees and costs in an action under this
  213  section.
  214         Section 2. This act shall take effect July 1, 2024.