[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 701 Placed on Calendar Senate (PCS)]

<DOC>





                                                        Calendar No. 26
118th CONGRESS
  1st Session
                                 S. 701

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

                             March 8, 2023

Ms. Baldwin (for herself, Mr. Blumenthal, Mrs. Murray, Mr. Schumer, Ms. 
Warren, Ms. Cortez Masto, Ms. Klobuchar, Ms. Stabenow, Mrs. Gillibrand, 
   Mr. Murphy, Mr. Bennet, Mr. Booker, Mr. Brown, Ms. Cantwell, Mr. 
    Cardin, Mr. Carper, Mr. Coons, Ms. Duckworth, Mr. Durbin, Mrs. 
 Feinstein, Mr. Fetterman, Ms. Hassan, Mr. Heinrich, Mr. Hickenlooper, 
Ms. Hirono, Mr. Kaine, Mr. Kelly, Mr. King, Mr. Lujan, Mr. Markey, Mr. 
 Menendez, Mr. Merkley, Mr. Ossoff, Mr. Padilla, Mr. Peters, Mr. Reed, 
   Ms. Rosen, Mr. Sanders, Mr. Schatz, Mrs. Shaheen, Ms. Sinema, Ms. 
Smith, Mr. Tester, Mr. Van Hollen, Mr. Warner, Mr. Warnock, Mr. Welch, 
Mr. Whitehouse, and Mr. Wyden) introduced the following bill; which was 
                          read the first time

                             March 9, 2023

            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 
2023''.

SEC. 2. PURPOSE.

    The purposes of this Act are as follows:
            (1) To permit people to seek and obtain abortion services, 
        and to permit health care providers to provide abortion 
        services, without harmful or unwarranted 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 reproductive health or the safety of 
        abortion services, or make abortion services more difficult to 
        access.
            (2) To promote access to abortion services and thereby 
        protect women's ability to participate equally in the economic 
        and social life of the United States.
            (3) To protect people's ability to make decisions about 
        their bodies, medical care, family, and life's course.
            (4) To eliminate unwarranted burdens on commerce and the 
        right to travel. Abortion bans and restrictions invariably 
        affect commerce over which the United States has jurisdiction. 
        Health care providers engage in economic and commercial 
        activity when they provide abortion services. Moreover, there 
        is an interstate market for abortion services and, in order to 
        provide such services, health care providers engage in 
        interstate commerce to purchase medicine, medical equipment, 
        and other necessary goods and services; to obtain and provide 
        training; and to employ and obtain commercial services from 
        health care personnel, many of whom themselves engage in 
        interstate commerce, including by traveling across State lines. 
        Congress has the authority to enact this Act to protect access 
        to 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.

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) 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 (including any hospital, clinic, or 
        pharmacy) or individual (including any physician, certified 
        nurse-midwife, nurse practitioner, pharmacist, or 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 protected by section 4.
            (4) 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.
            (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, and 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. PROTECTED ACTIVITIES AND SERVICES.

    (a) General Rules.--
            (1) Pre-viability.--A health care provider has a right 
        under this Act to provide abortion services, and a patient has 
        a corresponding right under this Act to terminate a pregnancy 
        prior to viability without being subject to any of the 
        following limitations or requirements:
                    (A) A prohibition on abortion prior to viability, 
                including a prohibition or restriction on a particular 
                abortion procedure or method, or a prohibition on 
                providing or obtaining such abortions.
                    (B) A limitation on a health care provider's 
                ability to prescribe or dispense drugs that could be 
                used for reproductive health purposes based on current 
                evidence-based regimens or the provider's good-faith 
                medical judgment, or a limitation on a patient's 
                ability to receive or use such drugs, other than a 
                limitation generally applicable to the prescription, 
                dispensing, or distribution of drugs.
                    (C) A limitation on a health care provider's 
                ability to provide, or a patient's ability to receive, 
                abortion services via telemedicine, other than a 
                limitation generally applicable to the provision of 
                medically comparable services via telemedicine.
                    (D) A limitation or prohibition on a patient's 
                ability to receive, or a provider's ability to provide, 
                abortion services in a State based on the State of 
                residency of the patient, or a prohibition or 
                limitation on the ability of any individual to assist 
                or support a patient seeking abortion.
                    (E) A requirement that a health care provider 
                perform specific tests or medical procedures in 
                connection with the provision of abortion services 
                (including prior to or subsequent to the abortion), 
                unless generally required for the provision of 
                medically comparable procedures.
                    (F) A requirement that a health care provider offer 
                or provide a patient seeking abortion services 
                medically inaccurate information.
                    (G) A limitation or requirement 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.
                    (H) 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.
                    (I) 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 life or health.
                    (J) A requirement that a patient seeking abortion 
                services at any point or points in time prior to 
                viability disclose the patient's reason or reasons for 
                seeking abortion services, or a limitation on providing 
                or obtaining abortion services at any point or points 
                in time prior to 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 actual or constructive knowledge of such 
                reason or reasons.
            (2) Post-viability.--
                    (A) In general.--A health care provider has a right 
                under this Act to provide abortion services and a 
                patient has a corresponding right under this Act to 
                terminate a pregnancy after viability when, in the 
                good-faith medical judgement of the treating health 
                care provider, it is necessary to protect the life or 
                health of the patient. This subparagraph shall not 
                otherwise apply after viability.
                    (B) Additional circumstances.--A State may provide 
                additional circumstances under which post viability 
                abortions are permitted under this paragraph.
                    (C) Limitation.--In the case where a termination of 
                a pregnancy after viability, in the good-faith medical 
                judgement of the treating health care provider, is 
                necessary to protect the life or health of the patient, 
                a State shall not impose any of the limitations or 
                requirements described in paragraph (1)
    (b) Other Limitations or Requirements.--The rights described in 
subsection (a) shall not be limited or otherwise infringed through any 
other limitation or requirement that--
            (1) expressly, effectively, implicitly, or as implemented, 
        singles out abortion, the provision of abortion services, 
        individuals who seek abortion services or who provide 
        assistance and support to those seeking abortion services, 
        health care providers who provide abortion services, or 
        facilities in which abortion services are provided; and
            (2) impedes access to abortion services.
    (c) Factors for Consideration.--A court may consider the following 
factors, among others, in determining whether a limitation or 
requirement impedes access to abortion services for purposes of 
subsection (b)(2):
            (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 a patient 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 
        such as costs associated with travel, childcare, or time off 
        work.
            (4) Whether the limitation or requirement is reasonably 
        likely to have the effect of necessitating patient travel that 
        would not otherwise have been required, including by making it 
        necessary for a patient to travel out of State to obtain 
        services.
            (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 limitations or requirements.
    (d) Exception.--To defend against a claim that a limitation or 
requirement violates a health care provider's or patient's rights under 
subsection (b) a party must establish, by clear and convincing 
evidence, that the limitation or requirement is essential to 
significantly advance the safety of abortion services or the health of 
the patients and that the safety or health objective cannot be 
accomplished by a different means that does not interfere with the 
right protected under subsection (b)).

SEC. 5. PROTECTION OF THE RIGHT TO TRAVEL.

    A person has a fundamental right under the Constitution of the 
United States and this Act to travel to a State other than the person's 
State of residence, including to obtain reproductive health services 
such as prenatal, childbirth, fertility, and abortion services, and a 
person has a right under this Act to assist another person to obtain 
such services or otherwise exercise the right described in this 
section.

SEC. 6. APPLICABILITY AND PREEMPTION.

    (a) In General.--
            (1) Superseding inconsistent laws.--Except as provided 
        under subsection (b), this Act shall supersede any inconsistent 
        Federal or State law, and the implementation of such law, 
        whether statutory, common law, or otherwise, and whether 
        adopted prior to or after the date of enactment of this Act. A 
        Federal or State government official shall not 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) Laws after date of enactment.--Federal law enacted 
        after the date of the enactment of this Act shall be 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) laws regulating 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) Preemption Defense.--In any legal or administrative action 
against a person or entity who has exercised or attempted to exercise a 
right protected by section 4 or section 5 or against any person or 
entity who has taken any step to assist any such person or entity in 
exercising such right, this Act shall also apply to, and may be raised 
as a defense by, such person or entity, in addition to the remedies 
specified in section 8.

SEC. 7. RULES OF CONSTRUCTION.

    (a) Liberal Construction by Courts.--In any action before a court 
under this Act, the court shall liberally construe the provisions of 
this Act to effectuate the purposes of the Act.
    (b) Protection of Life and Health.--Nothing in this Act shall be 
construed to authorize any government official to interfere with, 
diminish, or negatively affect a person's ability to obtain or provide 
abortion services prior to viability or after 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.
    (c) 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 4 or 5 shall be 
considered a government official for purposes of this Act.

SEC. 8. ENFORCEMENT.

    (a) Attorney General.--The Attorney General may commence a civil 
action on behalf of the United States in any district court of the 
United States against any State that violates, or against any 
government official (including a person described in section 7(c)) who 
implements or enforces a limitation or requirement that violates, 
section 4 or 5. The court shall declare unlawful the limitation or 
requirement if it is determined to be in violation of this Act.
    (b) Private Right of Action.--
            (1) In general.--Any individual or entity adversely 
        affected by an alleged violation of this Act, including any 
        person or health care provider, may commence a civil action 
        against any government official (including a person described 
        in section 7(c)) that implements or enforces a limitation or 
        requirement that violates, section 4 or 5. The court shall 
        declare unlawful 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) Pre-enforcement Challenges.--A suit under subsection (a) or (b) 
may be brought to prevent enforcement or implementation by any 
government of a State limitation or requirement that is inconsistent 
with section 4 or 5.
    (d) Declaratory and Equitable Relief.--In any action under this 
section, the court may award appropriate declaratory and equitable 
relief, including temporary, preliminary, or permanent injunctive 
relief.
    (e) 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.
    (f) 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.
    (g) Abrogation of State Immunity.--Neither a State that enforces or 
maintains, nor a government official (including a person described in 
section 7(c)) who is permitted to implement or enforce any limitation 
or requirement that violates section 4 or 5 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, unless such 
immunity is required by clearly established Federal law, as determined 
by the Supreme Court of the United States.

SEC. 9. EFFECTIVE DATE.

    This Act shall take effect upon the date of enactment of this Act.

SEC. 10. 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. 26

118th CONGRESS

  1st Session

                                 S. 701

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             March 9, 2023

            Read the second time and placed on the calendar