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: 111 381.998 Right 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.