[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4132 Placed on Calendar Senate (PCS)]
<DOC>
Calendar No. 362
117th CONGRESS
2d Session
S. 4132
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.
_______________________________________________________________________
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
_______________________________________________________________________
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.
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
2022''.
SEC. 2. 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 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 3.
(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, including any unit of local government, such
as a county, city, town, village, or other general purpose
political subdivision of a State.
(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.
SEC. 3. 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.--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--
(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.
SEC. 4. 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
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.).
(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.
(c) Defense.--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.
SEC. 5. 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. 6. RULES OF CONSTRUCTION.
(a) In General.--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.
(c) 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.
SEC. 7. ENFORCEMENT.
(a) Attorney General.--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.
(b) Private Right of Action.--
(1) In general.--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.
(2) 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.
(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'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.
(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.--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.
SEC. 8. 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.
Calendar No. 362
117th CONGRESS
2d Session
S. 4132
_______________________________________________________________________
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.
_______________________________________________________________________
May 4, 2022
Read the second time and placed on the calendar