[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 510 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                 S. 510

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 SENATE OF THE UNITED STATES

                             March 2, 2017

 Mr. Blumenthal (for himself, Ms. Baldwin, Mr. Markey, Mr. Wyden, Mr. 
 Brown, Mr. Whitehouse, Ms. Hirono, Mr. Coons, Ms. Warren, Mr. Schatz, 
   Mrs. Feinstein, Mrs. Gillibrand, Mr. Sanders, Mr. Van Hollen, Mr. 
Cardin, Mr. Kaine, Mr. Bennet, Mr. Tester, Mr. Durbin, Ms. Hassan, Mrs. 
  McCaskill, Ms. Klobuchar, Mr. Franken, Ms. Duckworth, Mrs. Shaheen, 
   Mrs. Murray, Mr. Booker, Mr. Merkley, Mr. Murphy, Mr. Peters, Mr. 
Udall, Ms. Harris, Mr. Heinrich, Ms. Cantwell, Mr. Schumer, Ms. Cortez 
Masto, Mr. King, Ms. Stabenow, Mr. Menendez, Mr. Leahy, and Mr. Warner) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 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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