[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