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S. 1975: Women’s Health Protection Act of 2021


The text of the bill below is as of Jun 8, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 1975

IN THE SENATE OF THE UNITED STATES

June 8, 2021

(for himself, Ms. Baldwin, Mrs. Shaheen, Mr. Markey, Mr. King, Ms. Warren, Mr. Brown, Ms. Cortez Masto, Mr. Reed, Mr. Schumer, Ms. Smith, Mr. Schatz, Mrs. Murray, Mr. Menendez, Ms. Hassan, Mr. Wyden, Ms. Klobuchar, Mr. Merkley, Mr. Booker, Ms. Stabenow, Ms. Sinema, Mr. Cardin, Mr. Murphy, Mr. Whitehouse, Mrs. Feinstein, Ms. Hirono, Mrs. Gillibrand, Ms. Duckworth, Ms. Cantwell, Ms. Rosen, Mr. Van Hollen, Mr. Sanders, Mr. Carper, Mr. Bennet, Mr. Warner, Mr. Padilla, Mr. Coons, Mr. Durbin, Mr. Kaine, Mr. Heinrich, Mr. Leahy, Mr. Tester, Mr. Hickenlooper, Mr. Peters, Mr. Luján, Mr. Kelly, Mr. Ossoff, and Mr. Warnock) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.

1.

Short title

This Act may be cited as the Women’s Health Protection Act of 2021.

2.

Findings and purpose

(a)

Findings

Congress finds the following:

(1)

Abortion services are essential health care and access to those services is central to people’s ability to participate equally in the economic and social life of the United States. Abortion access allows people who are pregnant to make their own decisions about their pregnancies, their families, and their lives.

(2)

Since 1973, the Supreme Court repeatedly has recognized the constitutional right to terminate a pregnancy before fetal viability, and to terminate a pregnancy after fetal viability where it is necessary, in the good-faith medical judgment of the treating health care professional, for the preservation of the life or health of the person who is pregnant.

(3)

Nonetheless, access to abortion services has been obstructed across the United States in various ways, including blockades of health care facilities and associated violence, prohibitions of, and restrictions on, insurance coverage; parental involvement laws (notification and consent); restrictions that shame and stigmatize people seeking abortion services; and medically unnecessary regulations that neither confer any health benefit nor further the safety of abortion services, but which harm people by delaying, complicating access to, and reducing the availability of, abortion services.

(4)

Reproductive Justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. Reproductive Justice is a human right that can and will be achieved when all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.

(5)

Reproductive Justice seeks to address restrictions on reproductive health, including abortion, that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. This violent legacy has manifested in policies including enslavement, rape, and experimentation on Black women; forced sterilizations; medical experimentation on low-income women’s reproductive systems; and the forcible removal of Indigenous children. Access to equitable reproductive health care, including abortion services, has always been deficient in the United States for Black, Indigenous, and other People of Color (BIPOC) and their families.

(6)

The legacy of restrictions on reproductive health, rights, and justice is not a dated vestige of a dark history. Presently, the harms of abortion-specific restrictions fall especially heavily on people with low incomes, BIPOC, immigrants, young people, people with disabilities, and those living in rural and other medically underserved areas. Abortion-specific restrictions are even more compounded by the ongoing criminalization of people who are pregnant, including those who are incarcerated, living with HIV, or with substance-use disorders. These communities already experience health disparities due to social, political, and environmental inequities, and restrictions on abortion services exacerbate these harms. Removing medically unjustified restrictions on abortion services would constitute one important step on the path toward realizing Reproductive Justice by ensuring that the full range of reproductive health care is accessible to all who need it.

(7)

Abortion-specific restrictions are a tool of gender oppression, as they target health care services that are used primarily by women. These paternalistic restrictions rely on and reinforce harmful stereotypes about gender roles, women’s decision-making, and women’s need for protection instead of support, undermining their ability to control their own lives and well-being. These restrictions harm the basic autonomy, dignity, and equality of women, and their ability to participate in the social and economic life of the Nation.

(8)

The terms “woman” and “women” are used in this bill to reflect the identity of the majority of people targeted and affected by restrictions on abortion services, and to address squarely the targeted restrictions on abortion, which are rooted in misogyny. However, access to abortion services is critical to the health of every person capable of becoming pregnant. This Act is intended to protect all people with the capacity for pregnancy—cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others—who are unjustly harmed by restrictions on abortion services.

(9)

Since 2011, States and local governments have passed nearly 500 restrictions singling out health care providers who offer abortion services, interfering with their ability to provide those services and the patients’ ability to obtain those services.

(10)

Many State and local governments have imposed restrictions on the provision of abortion services that are neither evidence-based nor generally applicable to the medical profession or to other medically comparable outpatient gynecological procedures, such as endometrial ablations, dilation and curettage for reasons other than abortion, hysteroscopies, loop electrosurgical excision procedures, or other analogous non-gynecological procedures performed in similar outpatient settings including vasectomy, sigmoidoscopy, and colonoscopy.

(11)

Abortion is essential health care and one of the safest medical procedures in the United States. An independent, comprehensive review of the state of science on the safety and quality of abortion services, published by the National Academies of Sciences, Engineering, and Medicine in 2018, found that abortion in the United States is safe and effective and that the biggest threats to the quality of abortion services in the United States are State regulations that create barriers to care. These abortion-specific restrictions conflict with medical standards and are not supported by the recommendations and guidelines issued by leading reproductive health care professional organizations including the American College of Obstetricians and Gynecologists, the Society of Family Planning, the National Abortion Federation, the World Health Organization, and others.

(12)

Many abortion-specific restrictions do not confer any health or safety benefits. Instead, these restrictions have the purpose and effect of unduly burdening people’s personal and private medical decisions to end their pregnancies by making access to abortion services more difficult, invasive, and costly, often forcing people to travel significant distances and make multiple unnecessary visits to the provider, and in some cases, foreclosing the option altogether. For example, a 2018 report from the University of California San Francisco’s Advancing New Standards in Reproductive Health research group found that in 27 cities across the United States, people have to travel more than 100 miles in any direction to reach an abortion provider.

(13)

An overwhelming majority of abortions in the United States are provided in clinics, not hospitals, but the large majority of counties throughout the United States have no clinics that provide abortion.

(14)

These restrictions additionally harm people’s health by reducing access not only to abortion services but also to other essential health care services offered by many of the providers targeted by the restrictions, including—

(A)

screenings and preventive services, including contraceptive services;

(B)

testing and treatment for sexually transmitted infections;

(C)

LGBTQ health services; and

(D)

referrals for primary care, intimate partner violence prevention, prenatal care and adoption services.

(15)

The cumulative effect of these numerous restrictions has been to severely limit the availability of abortion services in some areas, creating a patchwork system where access to abortion services is more available in some States than in others. A 2019 report from the Government Accountability Office examining State Medicaid compliance with abortion coverage requirements analyzed seven key challenges (identified both by health care providers and research literature) and their effect on abortion access, and found that access to abortion services varied across the States and even within a State.

(16)

International human rights law recognizes that access to abortion is intrinsically linked to the rights to life, health, equality and non-discrimination, privacy, and freedom from ill-treatment. United Nations (UN) human rights treaty monitoring bodies have found that legal abortion services, like other reproductive health care services, must be available, accessible, affordable, acceptable, and of good quality. UN human rights treaty bodies have likewise condemned medically unnecessary barriers to abortion services, including mandatory waiting periods, biased counseling requirements, and third-party authorization requirements.

(17)

Core human rights treaties ratified by the United States protect access to abortion. For example, in 2018, the UN Human Rights Committee, which oversees implementation of the ICCPR, made clear that the right to life, enshrined in Article 6 of the ICCPR, at a minimum requires governments to provide safe, legal, and effective access to abortion where a person’s life and health is at risk, or when carrying a pregnancy to term would cause substantial pain or suffering. The Committee stated that governments must not impose restrictions on abortion which subject women and girls to physical or mental pain or suffering, discriminate against them, arbitrarily interfere with their privacy, or place them at risk of undertaking unsafe abortions. Furthermore, the Committee stated that governments should remove existing barriers that deny effective access to safe and legal abortion, refrain from introducing new barriers to abortion, and prevent the stigmatization of those seeking abortion.

(18)

UN independent human rights experts have expressed particular concern about barriers to abortion services in the United States. For example, at the conclusion of his 2017 visit to the United States, the UN Special Rapporteur on extreme poverty and human rights noted concern that low-income women face legal and practical obstacles to exercising their constitutional right to access abortion services, trapping many women in cycles of poverty. Similarly, in May 2020, the UN Working Group on discrimination against women and girls, along with other human rights experts, expressed concern that some states had manipulated the COVID–19 crisis to restrict access to abortion, which the experts recognized as “the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country” and reminded U.S. authorities that abortion care constitutes essential health care that must remain available during and after the pandemic. They noted that barriers to abortion access exacerbate systemic inequalities and cause particular harm to marginalized communities, including low-income people, people of color, immigrants, people with disabilities, and LGBTQ people.

(19)

Abortion-specific restrictions affect the cost and availability of abortion services, and the settings in which abortion services are delivered. People travel across State lines and otherwise engage in interstate commerce to access this essential medical care, and more would be forced to do so absent this Act. Likewise, health care providers travel across State lines and otherwise engage in interstate commerce in order to provide abortion services to patients, and more would be forced to do so absent this Act.

(20)

Health care providers engage in a form of economic and commercial activity when they provide abortion services, and there is an interstate market for abortion services.

(21)

Abortion restrictions substantially affect interstate commerce in numerous ways. For example, to provide abortion services, health care providers engage in interstate commerce to purchase medicine, medical equipment, and other necessary goods and services. To provide and assist others in providing abortion services, health care providers engage in interstate commerce to obtain and provide training. To provide abortion services, health care providers employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.

(22)

It is difficult and time and resource-consuming for clinics to challenge State laws that burden or impede abortion services. Litigation that blocks one abortion restriction may not prevent a State from adopting other similarly burdensome abortion restrictions or using different methods to burden or impede abortion services. There is a history and pattern of States passing successive and different laws that unduly burden abortion services.

(23)

When a health care provider ceases providing abortion services as a result of burdensome and medically unnecessary regulations, it is often difficult or impossible for that health care provider to recommence providing those abortion services, and difficult or impossible for other health care providers to provide abortion services that restore or replace the ceased abortion services.

(24)

Health care providers are subject to license laws in various jurisdictions, which are not affected by this Act except as provided in this Act.

(25)

Congress has the authority to enact this Act to protect abortion services pursuant to—

(A)

its powers under the commerce clause of section 8 of article I of the Constitution of the United States;

(B)

its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and

(C)

its powers under the necessary and proper clause of section 8 of Article I of the Constitution of the United States.

(26)

Congress has used its authority in the past to protect access to abortion services and health care providers’ ability to provide abortion services. In the early 1990s, protests and blockades at health care facilities where abortion services were provided, and associated violence, increased dramatically and reached crisis level, requiring Congressional action. Congress passed the Freedom of Access to Clinic Entrances Act (Public Law 103–259; 108 Stat. 694) to address that situation and protect physical access to abortion services.

(27)

Congressional action is necessary to put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.

(b)

Purpose

It is the purpose of this Act—

(1)

to permit health care providers to provide abortion services without limitations or requirements that single out the provision of abortion services for restrictions that are more burdensome than those restrictions imposed on medically comparable procedures, do not significantly advance reproductive health or the safety of abortion services, and make abortion services more difficult to access;

(2)

to promote access to abortion services and women’s ability to participate equally in the economic and social life of the United States; and

(3)

to invoke Congressional authority, including the powers of Congress under the commerce clause of section 8 of article I of the Constitution of the United States, its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment, and its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.

3.

Definitions

In this Act:

(1)

Abortion services

The term abortion services means an abortion and any medical or non-medical services related to and provided in conjunction with an abortion (whether or not provided at the same time or on the same day as the abortion).

(2)

Government

The term government includes each branch, department, agency, instrumentality, and official (and other person acting under color of law) of the United States or a State.

(3)

Health care provider

The term health care provider means any entity or individual (including any physician, certified nurse-midwife, nurse practitioner, and physician assistant) that—

(A)

is engaged or seeks to engage in the delivery of health care services, including abortion services, and

(B)

if required by law or regulation to be licensed or certified to engage in the delivery of such services—

(i)

is so licensed or certified, or

(ii)

would be so licensed or certified but for their past, present, or potential provision of abortion services permitted by section 4.

(4)

Medically comparable procedure

The term medically comparable procedures means medical procedures that are similar in terms of health and safety risks to the patient, complexity, or the clinical setting that is indicated.

(5)

Pregnancy

The term pregnancy refers to the period of the human reproductive process beginning with the implantation of a fertilized egg.

(6)

State

The term State includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States, and any subdivision of any of the foregoing.

(7)

Viability

The term viability means the point in a pregnancy at which, in the good-faith medical judgment of the treating health care provider, based on the particular facts of the case before the health care provider, there is a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support.

4.

Permitted services

(a)

General Rule

A health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services, without any of the following limitations or requirements:

(1)

A requirement that a health care provider perform specific tests or medical procedures in connection with the provision of abortion services, unless generally required for the provision of medically comparable procedures.

(2)

A requirement that the same health care provider who provides abortion services also perform specified tests, services, or procedures prior to or subsequent to the abortion.

(3)

A requirement that a health care provider offer or provide the patient seeking abortion services medically inaccurate information in advance of or during abortion services.

(4)

A limitation on a health care provider’s ability to prescribe or dispense drugs based on current evidence-based regimens or the provider’s good-faith medical judgment, other than a limitation generally applicable to the medical profession.

(5)

A limitation on a health care provider’s ability to provide abortion services via telemedicine, other than a limitation generally applicable to the provision of medical services via telemedicine.

(6)

A requirement or limitation concerning the physical plant, equipment, staffing, or hospital transfer arrangements of facilities where abortion services are provided, or the credentials or hospital privileges or status of personnel at such facilities, that is not imposed on facilities or the personnel of facilities where medically comparable procedures are performed.

(7)

A requirement that, prior to obtaining an abortion, a patient make one or more medically unnecessary in-person visits to the provider of abortion services or to any individual or entity that does not provide abortion services.

(8)

A prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.

(9)

A prohibition on abortion after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.

(10)

A limitation on a health care provider’s ability to provide immediate abortion services when that health care provider believes, based on the good-faith medical judgment of the provider, that delay would pose a risk to the patient’s health.

(11)

A requirement that a patient seeking abortion services at any point or points in time prior to fetal viability disclose the patient’s reason or reasons for seeking abortion services, or a limitation on the provision or obtaining of abortion services at any point or points in time prior to fetal viability based on any actual, perceived, or potential reason or reasons of the patient for obtaining abortion services, regardless of whether the limitation is based on a health care provider’s degree of actual or constructive knowledge of such reason or reasons.

(b)

Other Limitations or Requirements

A health care provider has a statutory right to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services, without a limitation or requirement that—

(1)

is the same as or similar to one or more of the limitations or requirements described in subsection (a); or

(2)

both—

(A)

expressly, effectively, implicitly, or as implemented singles out the provision of abortion services, health care providers who provide abortion services, or facilities in which abortion services are provided; and

(B)

impedes access to abortion services.

(c)

Factors for Consideration

Factors a court may consider in determining whether a limitation or requirement impedes access to abortion services for purposes of subsection (b)(2)(B) include the following:

(1)

Whether the limitation or requirement, in a provider’s good-faith medical judgment, interferes with a health care provider’s ability to provide care and render services, or poses a risk to the patient’s health or safety.

(2)

Whether the limitation or requirement is reasonably likely to delay or deter some patients in accessing abortion services.

(3)

Whether the limitation or requirement is reasonably likely to directly or indirectly increase the cost of providing abortion services or the cost for obtaining abortion services (including costs associated with travel, childcare, or time off work).

(4)

Whether the limitation or requirement is reasonably likely to have the effect of necessitating a trip to the offices of a health care provider that would not otherwise be required.

(5)

Whether the limitation or requirement is reasonably likely to result in a decrease in the availability of abortion services in a given State or geographic region.

(6)

Whether the limitation or requirement imposes penalties that are not imposed on other health care providers for comparable conduct or failure to act, or that are more severe than penalties imposed on other health care providers for comparable conduct or failure to act.

(7)

The cumulative impact of the limitation or requirement combined with other new or existing limitations or requirements.

(d)

Exception

To defend against a claim that a limitation or requirement violates a health care provider’s or patient’s statutory rights under subsection (b), a party must establish, by clear and convincing evidence, that—

(1)

the limitation or requirement significantly advances the safety of abortion services or the health of patients; and

(2)

the safety of abortion services or the health of patients cannot be advanced by a less restrictive alternative measure or action.

5.

Applicability and preemption

(a)

In general

(1)

Except as stated under subsection (b), this Act supersedes and applies to the law of the Federal Government and each State government, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted before or after the date of enactment of this Act, and neither the Federal Government nor any State government shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts with any provision of this Act, notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).

(2)

Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.

(b)

Limitations

The provisions of this Act shall not supersede or apply to—

(1)

laws regulating physical access to clinic entrances;

(2)

insurance or medical assistance coverage of abortion services;

(3)

the procedure described in section 1531(b)(1) of title 18, United States Code; or

(4)

generally applicable State contract law.

6.

Effective date

This Act shall take effect immediately upon the date of enactment of this Act. This Act shall apply to all restrictions on the provision of, or access to, abortion services whether the restrictions are enacted or imposed prior to or after the date of enactment of this Act, except as otherwise provided in this Act.

7.

Liberal construction

(a)

Liberal Construction

In interpreting the provisions of this Act, a court shall liberally construe such provisions to effectuate the purposes of the Act.

(b)

Rule of Construction

Nothing in this Act shall be construed to authorize any government to interfere with a person’s ability to terminate a pregnancy, to diminish or in any way negatively affect a person’s constitutional right to terminate a pregnancy, or to displace any other remedy for violations of the constitutional right to terminate a pregnancy.

8.

Enforcement

(a)

Attorney General

The Attorney General may commence a civil action for prospective injunctive relief on behalf of the United States against any government official that is charged with implementing or enforcing any limitation or requirement that is challenged as a violation of a statutory right under this Act. The court shall hold unlawful and set aside the limitation or requirement if it is in violation of this Act.

(b)

Private Right of Action

(1)

In general

Any individual or entity, including any health care provider, aggrieved by an alleged violation of this Act may commence a civil action for prospective injunctive relief against the government official that is charged with implementing or enforcing the limitation or requirement that is challenged as a violation of a statutory right under this Act. The court shall hold unlawful and set aside the limitation or requirement if it is in violation of this Act.

(2)

Health care provider

A health care provider may commence an action for prospective injunctive relief on its own behalf and/or on behalf of the provider’s patients who are or may be adversely affected by an alleged violation of this Act.

(c)

Equitable Relief

In any action under this section, the court may award appropriate equitable relief, including temporary, preliminary, or permanent injunctive relief.

(d)

Costs

In any action under this section, the court shall award costs of litigation, as well as reasonable attorney fees, to any prevailing plaintiff. A plaintiff shall not be liable to a defendant for costs in any non-frivolous action under this section.

(e)

Jurisdiction

The district courts of the United States shall have jurisdiction over proceedings under this Act and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided for by law.

(f)

Abrogation of State Immunity

A State shall not be immune under the Eleventh Amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

9.

Severability

If any provision of this Act, or the application of such provision to any person, entity, government, or circumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to all other persons, entities, governments, or circumstances, shall not be affected thereby.