Bill Summary
The Women's Health Protection Act of 2019 is a comprehensive legislation that aims to protect women's right to choose and receive reproductive health care services, including abortion services. It recognizes the constitutional right of women to terminate a pregnancy and acknowledges the disproportionate impact of restrictions on low-income women, women of color, and other marginalized groups. The Act outlines the permitted services and prohibits limitations and requirements that hinder access to safe and legal abortion services. It also asserts the authority of Congress to protect these services and reaffirms the Act's relationship to federal law. The legislation also includes a severability provision to ensure that the Act remains effective if any provision is deemed unconstitutional.
Possible Impacts
1. Low-income women, women of color, and other marginalized groups will be positively impacted by this legislation as it recognizes the disproportionate impact of abortion restrictions on these communities and aims to protect their access to reproductive health care services.
2. Women seeking abortion services will benefit from this legislation as it outlines their right to receive these services without any limitations or requirements, and prohibits the use of medically inaccurate information.
3. The legislation will have a widespread impact as it prohibits any state or government entity from enacting or enforcing laws that conflict with the Act, ensuring that women's constitutional right to terminate a pregnancy is protected across the United States.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1645 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1645
To protect a woman's ability to determine whether and when to bear a
child or end a pregnancy, and to protect a health care provider's
ability to provide reproductive health care services, including
abortion services.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 23 (legislative day, May 22), 2019
Mr. Blumenthal (for himself, Ms. Baldwin, Mr. Menendez, Mr. Brown, Ms.
Harris, Mr. Merkley, Mr. Whitehouse, Mr. Bennet, Mr. Markey, Ms.
Warren, Mr. Cardin, Mr. Heinrich, Ms. Stabenow, Ms. Klobuchar, Mr.
Tester, Ms. Rosen, Mr. Coons, Ms. Cortez Masto, Mrs. Shaheen, Mr.
Sanders, Ms. Hirono, Ms. Hassan, Mr. Schatz, Mr. King, Ms. Smith, Mrs.
Murray, Mr. Peters, Mr. Wyden, Mrs. Feinstein, Mrs. Gillibrand, Mr.
Murphy, Mr. Leahy, Ms. Duckworth, Mr. Van Hollen, Mr. Carper, Ms.
Cantwell, Mr. Booker, Mr. Warner, Mr. Udall, Mr. Schumer, Mr. Kaine,
Mr. Durbin, and Ms. Sinema) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To protect a woman's ability to determine whether and when to bear a
child or end a pregnancy, and to protect a health care provider's
ability to provide reproductive health care services, including
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
2019''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Access to safe, legal abortion services is essential to
women's health and central to women's ability to participate
equally in the economic and social life of the United States.
(2) Since 1973, the Supreme Court repeatedly has recognized
the constitutional right of a woman to decide to terminate her
pregnancy before fetal viability, and to terminate her
pregnancy after fetal viability where it is necessary, in the
good-faith medical judgment of the treating health care
professional, for the preservation of her life or health.
(3) Nonetheless, access to safe, legal abortion services
has been hindered across the United States in various ways,
including blockades of health care facilities and associated
violence, prohibitions of and restrictions on insurance
coverage, restrictions which shame and stigmatize women seeking
abortion services, and medically unnecessary regulations which
neither confer any health benefit nor further the safety of
abortion services, but which harm women by delaying access to,
and reducing the availability of, services. Since 2010, States
and local governments have passed more than 400 such
restrictions singling out health care providers who offer
abortion services and interfering with health care providers'
ability to provide reproductive health care services and the
ability of patients to obtain those services.
(4) Many State and local governments have imposed
restrictions on the provision of abortion that are neither
evidence-based nor generally applicable to the medical
profession or to other medically comparable outpatient
gynecological procedures, such as endometrial ablations,
dilation and curettage for reasons other than abortion,
hysteroscopies, loop electrosurgical excision procedures, or
other analogous non-gynecological procedures performed in
similar outpatient settings including vasectomy, sigmoidoscopy,
and colonoscopy.
(5) Legal abortion is one of the safest medical procedures
in the United States. An independent review of research on the
safety and quality of abortion services in the United States,
published by the National Academies of Sciences, Engineering,
and Medicine in 2018, found that abortion in all forms is safe
and effective and that the biggest threats to the quality of
abortion services in the United States are State regulations
that create barriers to care. These abortion-specific
restrictions conflict with medical standards and are not
supported by the recommendations and guidelines issued by
leading reproductive health care professional organizations
including the American College of Obstetricians and
Gynecologists, the Society of Family Planning, the National
Abortion Federation, the World Health Organization, and others.
(6) Many abortion-specific restrictions do not confer any
health or safety benefits on the patient. Instead, these
restrictions have the purpose and effect of unduly burdening
women's personal and private medical decisions to end their
pregnancies by making access to abortion services more
difficult, invasive, and costly, forcing women to travel
significant distances and make multiple unnecessary visits to
the provider, and in some cases, foreclosing the option
altogether. For example, a 2018 report from the University of
California San Francisco's Advancing New Standards in
Reproductive Health research group found that in 27 cities
across the United States, people have to travel more than 100
miles in any direction to reach an abortion provider.
(7) These restrictions additionally harm women's health by
reducing access not only to abortion services but also to the
other essential health care services offered by the providers
targeted by the restrictions, including--
(A) contraceptive services, which advance women's
health and provide a range of benefits, including
preventing unintended pregnancies and reducing the need
for abortion; and
(B) screenings for cervical cancer and sexually
transmitted infections.
(8) The cumulative effect of these numerous restrictions
has been to severely limit the availability of abortion
services in some areas, creating a patchwork system where
access to abortion services is more available in some States
than in others. A 2019 report from the Government
Accountability Office examining State Medicaid compliance with
abortion coverage requirements analyzed 7 key challenges
(identified both by health care providers and research
literature) and their effect on abortion access, and found that
access to abortion services varied across the States and even
within a State.
(9) The harms of these abortion-specific restrictions fall
especially heavily on low-income women, women of color,
immigrants, young people, and women living in rural and other
medically underserved areas.
(10) Abortion-specific restrictions single out health
services used by women, and rely on and reinforce stereotypes
about women's roles, women's decisionmaking, and women's need
for protection. These restrictions harm the basic autonomy,
dignity, equality, and ability of women to participate in the
social and economic life of the Nation.
(11) Not all people who become pregnant or need abortion
services identify as women. Access to abortion services is
critical to the health of every person regardless of actual or
perceived race, color, national origin, immigration status, sex
(including gender identity, sex stereotyping, or sexual
orientation), age, or disability status. This Act's protection
is inclusive of all pregnant people.
(12) These restrictions affect the cost and availability of
abortion services, and the settings in which abortion services
are delivered. Women travel across State lines and otherwise
engage in interstate commerce to access this important medical
care, and more would be forced to do so absent this Act.
Likewise, health care providers travel across State lines and
otherwise engage in interstate commerce in order to provide
reproductive health services to patients, and more would be
forced to do so absent this Act.
(13) Health care providers, including those who provide
abortion services, engage in a form of economic and commercial
activity when they provide abortion services, and there is an
interstate market for abortion services.
(14) To provide abortion services, health care providers
engage in interstate commerce to purchase medicine, medical
equipment, and other necessary goods and services. To provide
and assist others in providing abortion services, health care
providers engage in interstate commerce to obtain and provide
training. To provide abortion services, health care providers
employ and obtain commercial services from doctors, nurses, and
other personnel who engage in interstate commerce and travel
across State lines. Abortion restrictions substantially affect
interstate commerce in numerous ways.
(15) It is difficult and time consuming for clinics to
challenge State laws that burden or impede abortion services.
Litigation that blocks one abortion restriction may not prevent
a State from adopting other abortion restrictions or using
different methods to burden or impede abortion services. There
is a history and pattern of States passing successive and
different laws that impede and unduly burden abortion services.
(16) When a health care provider ceases providing abortion
services as a result of burdensome and medically unnecessary
regulations, it is often difficult or impossible for that
health care provider to recommence providing those abortion
services, and difficult or impossible for other health care
providers to provide abortion services that restore or replace
the ceased abortion services.
(17) An overwhelming majority of abortions in the United
States are provided in clinics, not hospitals. The large
majority of United States counties have no clinics that provide
abortion.
(18) Congress has the authority to enact this Act to
protect 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.
(19) Congress has used its authority in the past to protect
women's ability to access abortion services and health care
providers' ability to provide abortion services. In the early
1990s, protests and blockades at health care facilities where
abortion services were provided, and associated violence,
increased dramatically and reached crisis level, requiring
congressional action. Congress passed the Freedom of Access to
Clinic Entrances Act (Public Law 103-259; 108 Stat. 694) to
address that situation and protect physical access to abortion
services.
(20) Congressional action is necessary to put an end to
harmful restrictions, to federally protect access to abortion
services for all women regardless of where they live, and to
protect the ability of reproductive health care providers to
provide these services in a safe and accessible manner.
(b) Purpose.--It is the purpose of this Act--
(1) to permit health care providers to provide abortion
services without 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 women's
health or the safety of abortion services, and make abortion
services more difficult to access;
(2) to promote women's health and women's ability to
participate equally in the economic and social life of the
United States; and
(3) to invoke congressional authority, including the powers
of Congress under the commerce clause of section 8 of article I
of the Constitution of the United States, 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 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) 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 is--
(A) engaged 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, is so licensed or certified.
(3) 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.
(4) Pregnancy.--The term ``pregnancy'' refers to the period
of the human reproductive process beginning with the
implantation of a fertilized egg.
(5) 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. 4. 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 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
prior to fetal viability state the patient's reasons for
seeking abortion services, or a limitation on the provision of
abortion services prior to fetal viability based on the
patient's reasons or perceived reasons for obtaining abortion
services.
(b) Other Limitations or Requirements.--A health care provider has
a statutory right to provide abortion services, and may provide
abortion services, and that provider's patient has a corresponding
right to receive such services, without a 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) 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 based on
one or more of the factors described in subsection (c).
(c) Factors for Consideration.--Factors for a court to 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 interferes with a
health care provider's ability to provide care and render
services in accordance with the provider's good-faith medical
judgment.
(2) Whether the limitation or requirement is reasonably
likely to delay 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.
(e) Applicability.--
(1) General relationship to federal law.--Except as stated
in paragraph (2), this Act supersedes and applies to all
Federal law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or after the
date of enactment 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) Limitations.--The provisions of this Act shall not
supersede or apply to--
(A) laws regulating physical access to clinic
entrances;
(B) insurance or medical assistance coverage of
abortion services;
(C) the procedure described in section 1531(b)(1)
of title 18, United States Code; or
(D) generally applicable State contract law.
SEC. 5. RELATIONSHIP TO STATE LAW AND PREEMPTION.
No State, territory, or possession of the United States, or the
District of Columbia, or the Commonwealth of Puerto Rico, or
subdivision, branch, department, agency, instrumentality, or official
(or other person acting under color of law) of any of the forgoing,
shall enact 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.
SEC. 6. 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. 7. LIBERAL CONSTRUCTION.
(a) Liberal Construction.--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 woman's ability to
terminate her pregnancy, to diminish or in any way negatively affect a
woman's constitutional right to terminate her pregnancy, or to displace
any other remedy for violations of the constitutional right to
terminate a pregnancy.
SEC. 8. ENFORCEMENT.
(a) Attorney General.--The Attorney General may commence a civil
action for prospective injunctive relief on behalf of the United States
against any government official that is charged with implementing or
enforcing any limitation or requirement that is challenged as a
violation of a statutory right under this Act. 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, aggrieved by an alleged violation of this
Act may commence a civil action for prospective injunctive
relief against the government official that is charged with
implementing or enforcing the limitation or requirement that is
challenged as a violation of a statutory right under this Act.
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 prospective injunctive relief on its own
behalf and/or 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 fees, to any
prevailing plaintiff. A plaintiff shall not be liable to a defendant
for costs 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.--A State shall not be immune
under the Eleventh Amendment to the Constitution of the United States
from an action in Federal or State court of competent jurisdiction for
a violation of this Act. In any action against a State for a violation
of the requirements of this Act, remedies (including remedies both at
law and in equity) are available for such a violation to the same
extent as such remedies are available for such a violation in an action
against any public or private entity other than a State.
SEC. 9. 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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