[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5276 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 5276

     To prohibit the limitation of access to assisted reproductive 
     technology, and all medically necessary care surrounding such 
                              technology.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 15, 2022

   Ms. Duckworth (for herself, Mrs. Murray, Mrs. Gillibrand, and Ms. 
   Baldwin) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
     To prohibit the limitation of access to assisted reproductive 
     technology, and all medically necessary care surrounding such 
                              technology.

    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 ``Right to Build Families Act of 
2022''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Assisted reproductive technology.--The term ``assisted 
        reproductive technology'' has the meaning given such term in 
        section 8 of the Fertility Clinic Success Rate and 
        Certification Act of 1992 (42 U.S.C. 263a-7(1)).
            (2) Health care provider.--The term ``health care 
        provider'' means any entity or individual (including any 
        physician, nurse practitioner, physician assistant, pharmacist, 
        and other individuals, as determined by the Secretary of Health 
        and Human Services) that--
                    (A) is engaged or seeks to engage in the delivery 
                of assisted reproductive technology, such as through 
                the provision of evidence-based information, 
                counseling, or items and services related to fertility 
                treatment; and
                    (B) if required by State law to be licensed, 
                certified, or otherwise authorized to engage in the 
                delivery of such services--
                            (i) is so licensed, certified, or otherwise 
                        authorized; or
                            (ii) would be so licensed, certified, or 
                        otherwise authorized but for the individual's 
                        or entity's past, present, or potential 
                        provision of assisted reproductive technology 
                        in accordance with section 3.
            (3) State.--The term ``State'' includes each of the 50 
        States, the District of Columbia, Puerto Rico, each territory 
        and possession of the United States, and any political 
        subdivision of a State.

SEC. 3. RIGHT TO ASSISTED REPRODUCTIVE TECHNOLOGY.

    (a) Prohibition.--No State, or official or employee of a State 
acting in the scope of such appointment or employment, may prohibit or 
unreasonably limit, for reasons other than to enforce regulations 
described in subsection (c)--
            (1) any individual from--
                    (A) accessing assisted reproductive technology;
                    (B) continuing or completing an ongoing assisted 
                reproductive technology treatment or procedure pursuant 
                to a written plan or agreement with a health care 
                provider; or
                    (C) retaining all rights regarding the use of 
                reproductive genetic materials, including gametes;
            (2) any health care provider from--
                    (A) performing assisted reproductive technology 
                treatments or procedures; or
                    (B) providing evidence-based information related to 
                assisted reproductive technology; or
            (3) any insurance provider from covering assisted 
        reproductive technology treatments or procedures.
    (b) Enforcement.--
            (1) The attorney general.--The Attorney General may 
        commence a civil action on behalf of the United States against 
        any State, or against any government official, individual, or 
        entity that enacts, implements or enforces a limitation or 
        requirement that violates subsection (a). The court shall hold 
        unlawful and set aside the limitation or requirement if it is 
        in violation of subsection (a).
            (2) Private right of action.--Any individual or entity 
        adversely affected by an alleged violation of subsection (a) 
        may commence a civil action against any State that violates 
        this section or against any government official that enacts, 
        implements, or enforces a limitation or requirement that 
        violates subsection (a). The court shall hold unlawful and 
        enjoin the limitation or requirement if it is in violation of 
        subsection (a).
            (3) 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 
        subsection (a).
            (4) Equitable relief.--In any action under this section, 
        the court may award appropriate equitable relief, including 
        temporary, preliminary, or permanent injunctive relief.
            (5) 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.
            (6) Jurisdiction.--The district courts of the United States 
        shall have jurisdiction over proceedings under 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.
            (7) Abrogation of state immunity.--Neither a State that 
        enforces or maintains, nor a government official who is 
        permitted to implement or enforce, any limitation or 
        requirement that violates subsection (a) 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.
            (8) Right to remove.--Any party shall have a right to 
        remove an action brought under this subsection to the district 
        court of the United States for the district and division 
        embracing the place where such action is pending. An order 
        remanding the case to the State court from which it was removed 
        under this paragraph may be immediately reviewable by appeal or 
        otherwise.
    (c) State Regulation of Medicine.--Nothing in this Act shall be 
construed to prohibit enforcement of health and safety regulations a 
State requires of medical facilities or providers, if such 
regulations--
            (1) advance the safety of health care services or the 
        health of patients; and
            (2) cannot be advanced by a less restrictive alternative 
        measure or action.
    (d) Insurance.--Nothing in this Act shall be construed to modify, 
supersede, or otherwise affect any Federal or State law regarding 
insurance coverage of assisted reproductive technologies and 
treatments.
    (e) Regulations.--Not later than 1 year after the date of enactment 
of this Act, the Secretary of Health and Human Services shall 
promulgate regulations to carry out this section.

SEC. 4. 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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