[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1322 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 1322
To protect a woman's right and ability to determine whether and when to
bear a child or end a pregnancy by limiting restrictions on the
provision of abortion services.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 2, 2017
Ms. Judy Chu of California (for herself, Ms. Adams, Mr. Aguilar, Mrs.
Beatty, Mr. Bera, Mr. Beyer, Mr. Blumenauer, Ms. Bonamici, Mr. Brady of
Pennsylvania, Ms. Brownley of California, Mrs. Bustos, Mr. Carbajal,
Mr. Cardenas, Mr. Cicilline, Ms. Clark of Massachusetts, Ms. Clarke of
New York, Mr. Cohen, Mr. Danny K. Davis of Illinois, Mr. DeFazio, Ms.
DeGette, Ms. DeLauro, Mr. Deutch, Mr. Doggett, Mr. Ellison, Mr. Engel,
Mr. Evans, Mr. Foster, Ms. Frankel of Florida, Ms. Fudge, Mr. Gallego,
Mr. Garamendi, Mr. Grijalva, Mr. Gutierrez, Ms. Hanabusa, Mr. Hastings,
Mr. Heck, Mr. Higgins of New York, Mr. Himes, Ms. Norton, Mr. Huffman,
Ms. Jackson Lee, Ms. Jayapal, Mr. Keating, Ms. Kelly of Illinois, Mr.
Kennedy, Mr. Kihuen, Mr. Kildee, Mr. Krishnamoorthi, Mr. Larsen of
Washington, Mrs. Lawrence, Ms. Lee, Mr. Levin, Mr. Ted Lieu of
California, Mr. Lowenthal, Ms. Michelle Lujan Grisham of New Mexico,
Mr. Sean Patrick Maloney of New York, Ms. McCollum, Ms. Kuster of New
Hampshire, Mr. McNerney, Mr. Meeks, Mr. Moulton, Mr. Nadler, Mrs.
Napolitano, Mr. Norcross, Mr. O'Rourke, Mr. Payne, Mr. Peters, Ms.
Pingree, Mr. Pocan, Mr. Price of North Carolina, Mr. Quigley, Miss Rice
of New York, Mr. Richmond, Ms. Rosen, Mr. Rush, Mr. Ryan of Ohio, Ms.
Sanchez, Ms. Schakowsky, Mr. Schiff, Mr. David Scott of Georgia, Mr.
Serrano, Ms. Sinema, Ms. Slaughter, Mr. Smith of Washington, Mr. Soto,
Ms. Speier, Mr. Takano, Ms. Titus, Mr. Tonko, Mrs. Torres, Ms. Tsongas,
Mr. Vargas, Mr. Veasey, Ms. Velazquez, Mr. Walz, Ms. Wasserman Schultz,
Mrs. Watson Coleman, Mr. Welch, Mr. Yarmuth, Ms. DelBene, Mr. Connolly,
and Mrs. Davis of California) introduced the following bill; which was
referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To protect a woman's right and ability to determine whether and when to
bear a child or end a pregnancy by limiting restrictions on the
provision of abortion services.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Women's Health Protection Act of
2017''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Access to safe, legal abortion services is essential to
women's health and central to women's ability to participate
equally in the economic and social life of the United States.
(2) Access to safe, legal abortion services has been
hindered in the United States in various ways, including
blockades of health care facilities and associated violence;
restrictions on insurance coverage; restrictions on minors'
ability to obtain services; and unnecessary health regulations
that single out abortion providers and those seeking their
services, and which do not confer any health benefit or further
the safety of abortion, but harm women by reducing the
availability of services.
(3) In the early 1990s, protests and blockades at health
care facilities where abortions were performed, 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) to address
that situation and ensure that women could physically access
abortion services.
(4) Since 2010, there has been an equally dramatic increase
in the number of laws and regulations singling out abortion
that threaten women's health and burden their access to safe
abortion services by interfering with health care
professionals' ability to provide such services. The Supreme
Court's decision in Whole Woman's Health v. Hellerstedt (579
U.S. ___ (2016)), reaffirmed the constitutional right to
abortion and struck down two unnecessary health regulations
that created undue burdens upon access to abortion.
Congressional action is necessary to put an end to these types
of harmful restrictions. In addition, there has been a dramatic
increase in the passage of laws that blatantly violate the
constitutional protections afforded women, such as bans on
abortion prior to viability.
(5) Legal abortion is one of the safest medical procedures
in the United States, safer than numerous procedures that take
place outside of hospitals, as noted by the Supreme Court in
Whole Woman's Health. That safety is furthered by regulations
that are based on medical science and are generally applicable
to the medical profession or to medically comparable
procedures.
(6) Many State and local governments are imposing
restrictions on the provision of abortion that are neither
evidence-based nor generally applicable to the medical
profession or to medically comparable procedures. Though
described by their proponents as health and safety regulations,
many of these abortion-specific restrictions do not confer any
health benefit. Also, these restrictions interfere with women's
personal and private medical decisions, make access to abortion
more difficult and costly, and even make it impossible for some
women to obtain those services.
(7) These restrictions harm women's health by reducing
access not only to abortion services but also to the other
essential health care services offered by the providers
targeted by the restrictions, including contraceptive services,
which reduce unintended pregnancies and thus abortions, and
screenings for cervical cancer and sexually transmitted
infections. These harms fall especially heavily on low-income
women, women of color, immigrants, and women living in rural
and other medically underserved areas.
(8) The cumulative effect of these numerous restrictions
has been to make a woman's ability to exercise her
constitutional rights dependent on the State in which she
lives. Federal legislation putting a stop to harmful
restrictions throughout the United States is necessary to
ensure that women in all States have meaningful access to safe
abortion services, a constitutional right repeatedly affirmed
by the United States Supreme Court, most recently in 2016.
(9) Congress has the authority to protect women's ability
to access abortion services pursuant to its powers under the
Commerce Clause and its powers under section 5 of the
Fourteenth Amendment to the Constitution to enforce the
provisions of section 1 of the Fourteenth Amendment.
(b) Purpose.--It is the purpose of this Act to protect women's
health by ensuring that abortion services will continue to be available
and that abortion providers are not singled out for medically
unnecessary restrictions that burden women by preventing them from
accessing safe abortion services. It is not the purpose of this Act to
address all obstacles in the path of women who seek access to abortion
(for example, this Act does not apply to clinic violence, restrictions
on insurance or medical assistance coverage of abortion, or
requirements for parental consent or notification before a minor may
obtain an abortion) which Congress should address through separate
legislation as appropriate.
SEC. 3. DEFINITIONS.
In this Act:
(1) Abortion.--The term ``abortion'' means any medical
treatment, including the prescription of medication, intended
to cause the termination of a pregnancy except for the purpose
of increasing the probability of a live birth, to remove an
ectopic pregnancy, or to remove a dead fetus.
(2) Abortion provider.--The term ``abortion provider''
means a health care professional who performs abortions.
(3) Government.--The term ``government'' includes a branch,
department, agency, instrumentality, or individual acting under
color of law of the United States, a State, or a subdivision of
a State.
(4) Health care professional.--The term ``health care
professional'' means a licensed medical professional (including
physicians, certified nurse-midwives, nurse practitioners, and
physician assistants) who is competent to perform abortions
based on clinical training.
(5) Medically comparable procedures.--The term ``medically
comparable procedures'' means medical procedures that are
similar in terms of risk, complexity, duration, or the degree
of sterile precaution that is indicated.
(6) Pregnancy.--The term ``pregnancy'' refers to the period
of the human reproductive process beginning with the
implantation of a fertilized egg.
(7) State.--The term ``State'' includes each of the 50
States, the District of Columbia, the Commonwealth of Puerto
Rico, and each territory or possession of the United States.
(8) Viability.--The term ``viability'' means the point in a
pregnancy at which, in the good-faith medical judgment of the
treating health care professional, based on the particular
facts of the case before her or him, there is a reasonable
likelihood of sustained fetal survival outside the uterus with
or without artificial support.
SEC. 4. PROHIBITED MEASURES AND ACTIONS.
(a) General Prohibitions.--The following limitations or
requirements are unlawful and shall not be imposed or applied by any
government because they single out the provision of abortion services
for restrictions that are more burdensome than those restrictions
imposed on medically comparable procedures, they do not significantly
advance women's health or the safety of abortion services, and they
make abortion services more difficult to access:
(1) A requirement that a medical professional perform
specific tests or medical procedures in connection with the
provision of an abortion, unless generally required for the
provision of medically comparable procedures.
(2) A requirement that the same clinician who performs a
patient's abortion also perform specified tests, services or
procedures prior to or subsequent to the abortion.
(3) A limitation on an abortion provider's ability to
prescribe or dispense drugs based on current evidence-based
regimens or her or his good-faith medical judgment, other than
a limitation generally applicable to the medical profession.
(4) A limitation on an abortion provider's ability to
provide abortion services via telemedicine, other than a
limitation generally applicable to the provision of medical
services via telemedicine.
(5) A requirement or limitation concerning the physical
plant, equipment, staffing, or hospital transfer arrangements
of facilities where abortions are performed, 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.
(6) 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.
(7) A requirement or limitation that prohibits or restricts
medical training for abortion procedures, other than a
requirement or limitation generally applicable to medical
training for medically comparable procedures.
(b) Other Prohibited Measures or Actions.--
(1) In general.--A measure or action that applies to and
restricts the provision of abortion services or the facilities
that provide abortion services that is similar to any of the
prohibited limitations or requirements described in subsection
(a) shall be unlawful if such measure or action singles out
abortion services or make abortion services more difficult to
access and does not significantly advance women's health or the
safety of abortion services.
(2) Prima facie case.--To make a prima facie showing that a
measure or action is unlawful under paragraph (1) a plaintiff
shall demonstrate that the measure or action involved--
(A) singles out the provision of abortion services
or facilities in which abortion services are performed;
or
(B) impedes women's access to abortion services
based on one or more of the factors described in
paragraph (3).
(3) Factors.--Factors for a court to consider in
determining whether a measure or action impedes access to
abortion services for purposes of paragraph (2)(B) include the
following:
(A) Whether the measure or action interferes with
an abortion provider's ability to provide care and
render services in accordance with her or his good-
faith medical judgment.
(B) Whether the measure or action is reasonably
likely to delay some women in accessing abortion
services.
(C) Whether the measure or action 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).
(D) Whether the measure or action requires, or is
reasonably likely to have the effect of necessitating,
a trip to the offices of the abortion provider that
would not otherwise be required.
(E) Whether the measure or action is reasonably
likely to result in a decrease in the availability of
abortion services in the State.
(F) Whether the measure or action imposes criminal
or civil penalties that are not imposed on other health
care professionals for comparable conduct or failure to
act or that are harsher than penalties imposed on other
health care professionals for comparable conduct or
failure to act.
(G) The cumulative impact of the measure or action
combined with other new or existing requirements or
restrictions.
(4) Defense.--A measure or action shall be unlawful under
this subsection upon making a prima facie case (as provided for
under paragraph (2)), unless the defendant establishes, by
clear and convincing evidence, that--
(A) the measure or action significantly advances
the safety of abortion services or the health of women;
and
(B) the safety of abortion services or the health
of women cannot be advanced by a less restrictive
alternative measure or action.
(c) Other Prohibitions.--The following restrictions on the
performance of abortion are unlawful and shall not be imposed or
applied by any government:
(1) A prohibition or ban on abortion prior to fetal
viability, including a prohibition, ban, or restriction on a
particular abortion procedure, subject to subsection (d).
(2) A prohibition on abortion after fetal viability when,
in the good-faith medical judgment of the treating physician,
continuation of the pregnancy would pose a risk to the pregnant
woman's life or health.
(3) A restriction that limits a pregnant woman's ability to
obtain an immediate abortion when a health care professional
believes, based on her or his good-faith medical judgment, that
delay would pose a risk to the woman's health.
(4) A measure or action that prohibits or restricts a woman
from obtaining an abortion prior to fetal viability based on
her reasons or perceived reasons or that requires a woman to
state her reasons before obtaining an abortion prior to fetal
viability.
(d) Limitation.--The provisions of this Act shall not apply to laws
regulating physical access to clinic entrances, requirements for
parental consent or notification before a minor may obtain an abortion,
insurance or medical assistance coverage of abortion, or the procedure
described in section 1531(b)(1) of title 18, United States Code.
(e) Effective Date.--This Act shall apply to government
restrictions on the provision of abortion services, whether statutory
or otherwise, whether they are enacted or imposed prior to or after the
date of enactment of this Act.
SEC. 5. 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 woman's ability to
terminate her pregnancy, to diminish or in any way negatively affect a
woman's constitutional right to terminate her pregnancy, or to displace
any other remedy for violations of the constitutional right to
terminate a pregnancy.
SEC. 6. 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 restriction that is challenged as unlawful under this
Act.
(b) Private Right of Action.--
(1) In general.--Any individual or entity 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 restriction
that is challenged as unlawful under this Act.
(2) Facility or professional.--A health care facility or
medical professional may commence an action for prospective
injunctive relief on behalf of the facility's or professional'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 an action under this section.
(e) Jurisdiction.--The district courts of the United States shall
have jurisdiction over proceedings commenced pursuant to this section
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.
SEC. 7. PREEMPTION.
No State or subdivision thereof 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.
SEC. 8. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, or the application of such provision to all
other persons or circumstances, shall not be affected thereby.
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