[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3612 Introduced in Senate (IS)]

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118th CONGRESS
  2d Session
                                S. 3612

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 18, 2024

    Ms. Duckworth (for herself, Ms. Baldwin, Mrs. Murray, and Mrs. 
  Gillibrand) 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 medical 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 ``Access to Family Building Act''.

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, 
        health care support personnel, and any other individual, 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, including through 
                the provision of evidence-based information, 
                counseling, referrals, or items and services that 
                relate to, aid in, or provide 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 4.
            (3) Patient.--The term ``patient'' means any individual who 
        receives or seeks to receive assisted reproductive technology 
        services and evidence-based information, counseling, referrals, 
        or items and services that relate to, aid in, or provide 
        fertility treatment.
            (4) 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 thereof.

SEC. 3. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Congress has the authority to enact this Act to protect 
        access to fertility treatments 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.
            (2) Congress has used its authority in the past to protect 
        and expand access to fertility treatment, information, 
        products, and services.
    (b) Purpose.--It is the purpose of this Act to permit health care 
providers to provide, and for patients to receive, assisted 
reproductive technology services without limitations or requirements 
that--
            (1) are more burdensome than limitations or requirements 
        imposed on medically comparable procedures;
            (2) do not significantly advance reproductive health or the 
        safety of such services; or
            (3) unduly restrict access to such services.

SEC. 4. ACCESS TO ASSISTED REPRODUCTIVE TECHNOLOGY.

    (a) General Rule.--
            (1) Individual rights.--An individual has a statutory right 
        under this Act, including without prohibition or unreasonable 
        limitation or interference (such as due to financial cost or 
        detriment to the individual's health, including mental health), 
        to--
                    (A) access assisted reproductive technology;
                    (B) continue or complete an ongoing assisted 
                reproductive technology treatment or procedure pursuant 
                to a written plan or agreement with a health care 
                provider; and
                    (C) retain all rights regarding the use or 
                disposition of reproductive genetic materials, 
                including gametes, subject to subsection (c).
            (2) Health care provider rights.--A health care provider 
        has a statutory right under this Act to--
                    (A) perform or assist with the performance of 
                assisted reproductive technology treatments or 
                procedures; and
                    (B) provide or assist with the provision of 
                evidence-based information related to assisted 
                reproductive technology.
            (3) Insurance provider rights.--A health insurance provider 
        has a statutory right under this Act to cover 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, local municipality, or against any government 
        official, individual, or entity that enacts, implements, or 
        enforces a limitation or requirement that prohibits, 
        unreasonably limits, or interferes with 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 or local 
        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, or 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) 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 is 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 or local municipality requires of medical facilities or 
providers, if such regulations--
            (1) advance the safety of health care services or the 
        health of patients; and
            (2) that safety objective 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 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. 5. APPLICABILITY AND PREEMPTION.

    (a) In General.--
            (1) General application.--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) Subsequently enacted federal legislation.--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) 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 4(b), this Act 
shall also apply to, and may be raised as a defense by, such an 
individual or entity.

SEC. 6. 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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