[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1645 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 1645

 To protect a woman's ability to determine whether and when to bear a 
   child or end a pregnancy, and to protect a health care provider's 
    ability to provide reproductive health care services, including 
                           abortion services.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                 May 23 (legislative day, May 22), 2019

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

_______________________________________________________________________

                                 A BILL


 
 To protect a woman's ability to determine whether and when to bear a 
   child or end a pregnancy, and to protect a health care provider's 
    ability to provide reproductive health care services, including 
                           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 
2019''.

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) Since 1973, the Supreme Court repeatedly has recognized 
        the constitutional right of a woman to decide to terminate her 
        pregnancy before fetal viability, and to terminate her 
        pregnancy after fetal viability where it is necessary, in the 
        good-faith medical judgment of the treating health care 
        professional, for the preservation of her life or health.
            (3) Nonetheless, access to safe, legal abortion services 
        has been hindered across the United States in various ways, 
        including blockades of health care facilities and associated 
        violence, prohibitions of and restrictions on insurance 
        coverage, restrictions which shame and stigmatize women seeking 
        abortion services, and medically unnecessary regulations which 
        neither confer any health benefit nor further the safety of 
        abortion services, but which harm women by delaying access to, 
        and reducing the availability of, services. Since 2010, States 
        and local governments have passed more than 400 such 
        restrictions singling out health care providers who offer 
        abortion services and interfering with health care providers' 
        ability to provide reproductive health care services and the 
        ability of patients to obtain those services.
            (4) Many State and local governments have imposed 
        restrictions on the provision of abortion 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.
            (5) Legal abortion is one of the safest medical procedures 
        in the United States. An independent review of research on the 
        safety and quality of abortion services in the United States, 
        published by the National Academies of Sciences, Engineering, 
        and Medicine in 2018, found that abortion in all forms 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.
            (6) Many abortion-specific restrictions do not confer any 
        health or safety benefits on the patient. Instead, these 
        restrictions have the purpose and effect of unduly burdening 
        women's personal and private medical decisions to end their 
        pregnancies by making access to abortion services more 
        difficult, invasive, and costly, forcing women 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.
            (7) These restrictions additionally 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--
                    (A) contraceptive services, which advance women's 
                health and provide a range of benefits, including 
                preventing unintended pregnancies and reducing the need 
                for abortion; and
                    (B) screenings for cervical cancer and sexually 
                transmitted infections.
            (8) 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 7 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.
            (9) The harms of these abortion-specific restrictions fall 
        especially heavily on low-income women, women of color, 
        immigrants, young people, and women living in rural and other 
        medically underserved areas.
            (10) Abortion-specific restrictions single out health 
        services used by women, and rely on and reinforce stereotypes 
        about women's roles, women's decisionmaking, and women's need 
        for protection. These restrictions harm the basic autonomy, 
        dignity, equality, and ability of women to participate in the 
        social and economic life of the Nation.
            (11) Not all people who become pregnant or need abortion 
        services identify as women. Access to abortion services is 
        critical to the health of every person regardless of actual or 
        perceived race, color, national origin, immigration status, sex 
        (including gender identity, sex stereotyping, or sexual 
        orientation), age, or disability status. This Act's protection 
        is inclusive of all pregnant people.
            (12) These restrictions affect the cost and availability of 
        abortion services, and the settings in which abortion services 
        are delivered. Women travel across State lines and otherwise 
        engage in interstate commerce to access this important 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 
        reproductive health services to patients, and more would be 
        forced to do so absent this Act.
            (13) Health care providers, including those who provide 
        abortion services, engage in a form of economic and commercial 
        activity when they provide abortion services, and there is an 
        interstate market for abortion services.
            (14) 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. Abortion restrictions substantially affect 
        interstate commerce in numerous ways.
            (15) It is difficult and time 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 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 impede and unduly burden abortion services.
            (16) 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.
            (17) An overwhelming majority of abortions in the United 
        States are provided in clinics, not hospitals. The large 
        majority of United States counties have no clinics that provide 
        abortion.
            (18) 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.
            (19) Congress has used its authority in the past to protect 
        women's ability to access 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.
            (20) Congressional action is necessary to put an end to 
        harmful restrictions, to federally protect access to abortion 
        services for all women regardless of where they live, and to 
        protect the ability of reproductive 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 women's 
        health or the safety of abortion services, and make abortion 
        services more difficult to access;
            (2) to promote women's health 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.

SEC. 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) 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--
                    (A) engaged 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, is so licensed or certified.
            (3) Medically comparable procedures.--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.
            (4) Pregnancy.--The term ``pregnancy'' refers to the period 
        of the human reproductive process beginning with the 
        implantation of a fertilized egg.
            (5) 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.

SEC. 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 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 
        prior to fetal viability state the patient's reasons for 
        seeking abortion services, or a limitation on the provision of 
        abortion services prior to fetal viability based on the 
        patient's reasons or perceived reasons for obtaining abortion 
        services.
    (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) 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 based on 
                one or more of the factors described in subsection (c).
    (c) Factors for Consideration.--Factors for a court to 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 interferes with a 
        health care provider's ability to provide care and render 
        services in accordance with the provider's good-faith medical 
        judgment.
            (2) Whether the limitation or requirement is reasonably 
        likely to delay 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.
    (e) Applicability.--
            (1) General relationship to federal law.--Except as stated 
        in paragraph (2), this Act supersedes and applies to all 
        Federal law, and the implementation of that law, whether 
        statutory or otherwise, and whether adopted before or after the 
        date of enactment 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) Limitations.--The provisions of this Act shall not 
        supersede or apply to--
                    (A) laws regulating physical access to clinic 
                entrances;
                    (B) insurance or medical assistance coverage of 
                abortion services;
                    (C) the procedure described in section 1531(b)(1) 
                of title 18, United States Code; or
                    (D) generally applicable State contract law.

SEC. 5. RELATIONSHIP TO STATE LAW AND PREEMPTION.

    No State, territory, or possession of the United States, or the 
District of Columbia, or the Commonwealth of Puerto Rico, or 
subdivision, branch, department, agency, instrumentality, or official 
(or other person acting under color of law) of any of the forgoing, 
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. 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.

SEC. 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 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. 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.

SEC. 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.
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