Calendar No. 362
IN THE SENATE OF THE UNITED STATES
May 3, 2022
Mr. Blumenthal introduced the following bill; which was read the first time
May 4, 2022
Read the second time and placed on the calendar
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.
This Act may be cited as the
Women’s Health Protection Act of 2022.
In this Act:
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).
The term government includes each branch, department, agency, instrumentality, and official of the United States or a State.
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—
is engaged or seeks to engage in the delivery of health care services, including abortion services, and
if required by law or regulation to be licensed or certified to engage in the delivery of such services—
is so licensed or certified, or
would be so licensed or certified but for their past, present, or potential provision of abortion services permitted by section 3.
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.
The term pregnancy refers to the period of the human reproductive process beginning with the implantation of a fertilized egg.
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, including any unit of local government, such as a county, city, town, village, or other general purpose political subdivision of a State.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Other Limitations or Requirements
The statutory right specified in subsection (a) shall not be limited or otherwise infringed through, in addition to the limitations and requirements specified in paragraphs (1) through (11) of subsection (a), any limitation or requirement that—
is the same as or similar to one or more of the limitations or requirements described in subsection (a); or
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
impedes access to abortion services.
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:
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.
Whether the limitation or requirement is reasonably likely to delay or deter some patients in accessing abortion services.
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).
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.
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.
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.
The cumulative impact of the limitation or requirement combined with other new or existing limitations or requirements.
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—
the limitation or requirement significantly advances the safety of abortion services or the health of patients; and
the safety of abortion services or the health of patients cannot be advanced by a less restrictive alternative measure or action.
Applicability and preemption
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 administer, implement, 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.).
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.
The provisions of this Act shall not supersede or apply to—
laws regulating physical access to clinic entrances;
insurance or medical assistance coverage of abortion services;
the procedure described in section 1531(b)(1) of title 18, United States Code; or
generally applicable State contract law.
In any cause of action against an individual or entity who is subject to a limitation or requirement that violates this Act, in addition to the remedies specified in section 7, this Act shall also apply to, and may be raised as a defense by, such an individual or entity.
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.
Rules of construction
In interpreting the provisions of this Act, a court shall liberally construe such provisions to effectuate the purposes of the Act.
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.
Other Individuals Considered as Government Officials
Any person who, by operation of a provision of Federal or State law, is permitted to implement or enforce a limitation or requirement that violates section 3 of this Act shall be considered a government official for purposes of this Act.
The Attorney General may commence a civil action on behalf of the United States against any State that violates, or against any government official (including a person described in section 6(c)) that implements or enforces a limitation or requirement that violates, section 3. The court shall hold unlawful and set aside the limitation or requirement if it is in violation of this Act.
Private Right of Action
Any individual or entity, including any health care provider or patient, adversely affected by an alleged violation of this Act, may commence a civil action against any State that violates, or against any government official (including a person described in section 6(c)) that implements or enforces a limitation or requirement that violates, section 3. The court shall hold unlawful and set aside the limitation or requirement if it is in violation of this Act.
Health care provider
A health care provider may commence an action for relief on its own behalf, on behalf of the provider’s staff, and on behalf of the provider’s patients who are or may be adversely affected by an alleged violation of this Act.
In any action under this section, the court may award appropriate equitable relief, including temporary, preliminary, or permanent injunctive relief.
In any action under this section, the court shall award costs of litigation, as well as reasonable attorney’s fees, to any prevailing plaintiff. A plaintiff shall not be liable to a defendant for costs or attorney’s fees in any non-frivolous action under this section.
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.
Abrogation of State Immunity
Neither a State that enforces or maintains, nor a government official (including a person described in section 6(c)) who is permitted to implement or enforce any limitation or requirement that violates section 3 shall be immune under the Tenth Amendment to the Constitution of the United States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an action in a Federal or State court of competent jurisdiction challenging that limitation or requirement.
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.
May 4, 2022
Read the second time and placed on the calendar