What This Bill Does
This bill guarantees that all Americans have the right to make certain reproductive decisions without too much government interference. The bill protects the ability to obtain contraceptives and to make decisions about pregnancy before the fetus can survive outside the womb, except in cases where the doctor determines it is needed to protect the pregnant woman's life or health. The bill allows states to set some reasonable rules around these decisions, but these rules cannot be so restrictive that they create a substantial obstacle to accessing these services.
Who It Affects
Women seeking contraception or pregnancy termination services. States and their governments. Doctors and health care practitioners. The U.S. Attorney General. Any person harmed by state laws that violate this act. People who travel across state lines for contraception or abortion services.
Key Provisions
States cannot ban individuals from obtaining or using contraceptives or contraceptive care (Sec. 4(b)(1)).
States cannot place a substantial obstacle in the path of a woman trying to end a pregnancy before the fetus can survive outside the womb (Sec. 4(b)(2)).
States may set reasonable rules about ending pregnancies after the fetus can survive outside the womb, but cannot ban these procedures when a doctor determines they are medically necessary to protect the pregnant woman's life or health (Sec. 4(b)(3)).
States may enact reasonable health and safety regulations for pregnancy termination, but these rules cannot create a substantial obstacle (Sec. 4(b)(4)).
The U.S. Attorney General or any affected person can ask a federal or state court to stop enforcement of state laws that violate this act, and the court may award attorney's fees to the winning party (Sec. 5).
What Changes
If this bill becomes law, states would be prohibited from banning contraceptive use or access. States would be prohibited from blocking access to pregnancy termination before fetal viability (the point when a fetus could survive outside the womb). States could only regulate pregnancy termination after fetal viability, and only in limited circumstances. State laws that violate these requirements could be challenged in court, and violating individuals or the Attorney General could seek court orders to stop enforcement of those state laws.
Important Definitions
Fetal viability: The time when, according to a doctor's medical judgment, there is a realistic possibility of maintaining and nourishing a life outside the womb (Sec. 6(a)(1)).
Reasonable: When referring to health and safety regulations about pregnancy termination, means the regulation is consistent with certain Supreme Court cases mentioned in the bill (Sec. 6(a)(2)).
Undue burden: A law that places a substantial obstacle in the path of a woman seeking to end a pregnancy before fetal viability (Sec. 6(b)).
State: Includes the District of Columbia, Puerto Rico, and all other territories and possessions of the United States, plus any subdivisions of these areas (Sec. 6(a)(3)).
II
118TH CONGRESS
1ST SESSION
S. 317
To guarantee that Americans have the freedom to make certain reproductive
decisions without undue government interference.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 9, 2023
Mr. KAINE (for himself, Ms. MURKOWSKI, Ms. SINEMA, and Ms. COLLINS)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
A BILL
To guarantee that Americans have the freedom to make
certain reproductive decisions without undue government
interference.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Reproductive Freedom
4
for All Act’’.
5
SEC. 2. PURPOSE.
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It is the purpose of this Act to guarantee that Ameri-
7
cans have the freedom to make certain reproductive deci-
8
sions without undue government interference, consistent
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•S 317 IS
with the essential holdings of Griswold v. Connecticut (381
1
U.S. 479 (1965)), Eisenstadt v. Baird (405 U.S. 438
2
(1972)), Roe v. Wade (410 U.S. 113 (1973)), Carey v.
3
Population Services International (431 U.S. 678 (1977)),
4
Planned Parenthood of Southeastern Pennsylvania v.
5
Casey (505 U.S. 833 (1992)), and Whole Woman’s Health
6
v. Hellerstedt (579 U.S. 582 (2016)).
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SEC. 3. FINDINGS.
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Congress finds the following:
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(1) For decades, the Supreme Court of the
10
United States has held that the liberty protected by
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the Fourteenth Amendment to the Constitution of
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the United States encompasses a right to make cer-
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tain reproductive decisions without undue govern-
14
ment interference.
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(2) While these precedents have advanced
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slightly different constitutional rationales, and have
17
acknowledged that some government regulation is
18
acceptable, they have created a society whereby
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Americans expect to make certain reproductive deci-
20
sions without undue government interference. Gen-
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erations of American women have relied on the fact
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that they have the freedom to make such choices as
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a matter of fundamental personal right.
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•S 317 IS
(3) The right to make certain reproductive deci-
1
sions without undue government interference should
2
be guaranteed for all Americans, consistent with the
3
Fourteenth Amendment’s guarantee of equal protec-
4
tion and due process under the law.
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(4) The Supreme Court has reversed five dec-
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ades of jurisprudence in Dobbs v. Jackson Women’s
7
Health Organization (142 S. Ct. 2228 (2022)), con-
8
cluding that questions related to the legality of abor-
9
tion services are a matter for legislative action rath-
10
er than constitutional protection.
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(5) In light of the Dobbs ruling that the legality
12
of abortion services is now a matter of legislative ac-
13
tion, it is appropriate to enact the essential holdings
14
of the cases referred to in section 2 so that Ameri-
15
cans are guaranteed the freedom to make the repro-
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ductive decisions discussed therein. The absence of
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such a guarantee has a profound effect upon the
18
quality of Americans’ lives, particularly the lives of
19
women. As such, this action is an appropriate exer-
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cise of the Congressional power established in sec-
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tion 5 of the Fourteenth Amendment to the Con-
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stitution of the United States. By continuing to pro-
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tect their reliance on fundamental reproductive
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•S 317 IS
rights, such a guarantee will improve the general
1
welfare for generations of American women.
2
(6) Enacting this guarantee is also justified as
3
congressional regulation of interstate commerce be-
4
cause contraception and abortion services are eco-
5
nomic transactions that frequently involve the ship-
6
ment of goods, the provision of services, and the
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travel of persons across State lines.
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SEC. 4. REPRODUCTIVE FREEDOM.
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(a) IN GENERAL.—All persons shall have the right
10
to make certain reproductive decisions without undue gov-
11
ernment interference, consistent with the provisions of this
12
Act.
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(b) AUTHORITY.—A State—
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(1) shall not prohibit an individual from obtain-
15
ing or using contraceptives or contraceptive care;
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(2) shall not impose an undue burden on the
17
ability of a woman to choose whether or not to ter-
18
minate a pregnancy before fetal viability;
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(3) may regulate the termination of a preg-
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nancy after fetal viability, provided that a State
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shall not prohibit the termination of a pregnancy
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that, in the appropriate medical judgment of the at-
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tending health care practitioner or practitioners, is
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medically indicated to protect the life or health of
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the pregnant woman; and
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(4) may enact reasonable regulations to further
3
the health or safety of a woman seeking to terminate
4
a pregnancy, unless such regulations impose an
5
undue burden pursuant to paragraph (2).
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(c) RULE OF CONSTRUCTION.—Nothing in this Act
7
shall be construed to have any effect on laws regarding
8
conscience protection.
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SEC. 5. ENFORCEMENT.
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The Attorney General of the United States or any
11
person adversely affected by State laws passed in con-
12
travention of this Act may seek injunctive relief in a Fed-
13
eral district or State court. In any action or proceeding
14
under this section, the court, in its discretion, may allow
15
the prevailing party, other than the United States, a rea-
16
sonable attorney’s fee as part of the costs.
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SEC. 6. DEFINITIONS.
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(a) IN GENERAL.—In this Act:
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(1) FETAL VIABILITY.—The term ‘‘fetal viabil-
20
ity’’ means the time at which, in the appropriate
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medical judgment of the attending health care prac-
22
titioner or practitioners, there is a realistic possi-
23
bility of maintaining and nourishing a life outside
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the womb.
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(2) REASONABLE.—The term ‘‘reasonable’’
1
with respect to a regulation referred to in paragraph
2
(4) of section 4(b), means that the regulation is con-
3
sistent with the essential holdings of the cases re-
4
ferred to in section 2.
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(3) STATE.—The term ‘‘State’’ includes the
6
District of Columbia, the Commonwealth of Puerto
7
Rico, and each other territory or possession of the
8
United States, and any subdivision of any of the
9
foregoing.
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(b) UNDUE BURDEN.—For purposes of this Act, an
11
undue burden shall be deemed to exist, and the related
12
provision of law shall be invalid under section 4, if the
13
purpose or effect of such law is to place a substantial ob-
14
stacle in the path of a woman seeking to terminate a preg-
15
nancy before fetal viability.
16
SEC. 7. SEVERABILITY.
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If any provision of this Act, or the application of such
18
provision to any person or circumstance is held to be in-
19
valid, the remainder of this Act and the application of the
20
provisions of such to any person or circumstance shall not
21
be affected thereby.
22
Æ
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