Women’s Health Protection Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1975 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 JUNE 8, 2021 Mr. BLUMENTHAL (for himself, Ms. BALDWIN, Mrs. SHAHEEN, Mr. MARKEY, Mr. KING, Ms. WARREN, Mr. BROWN, Ms. CORTEZ MASTO, Mr. REED, Mr. SCHUMER, Ms. SMITH, Mr. SCHATZ, Mrs. MURRAY, Mr. MENENDEZ, Ms. HASSAN, Mr. WYDEN, Ms. KLOBUCHAR, Mr. MERKLEY, Mr. BOOK- ER, Ms. STABENOW, Ms. SINEMA, Mr. CARDIN, Mr. MURPHY, Mr. WHITEHOUSE, Mrs. FEINSTEIN, Ms. HIRONO, Mrs. GILLIBRAND, Ms. DUCKWORTH, Ms. CANTWELL, Ms. ROSEN, Mr. VAN HOLLEN, Mr. SANDERS, Mr. CARPER, Mr. BENNET, Mr. WARNER, Mr. PADILLA, Mr. COONS, Mr. DURBIN, Mr. KAINE, Mr. HEINRICH, Mr. LEAHY, Mr. TESTER, Mr. HICKENLOOPER, Mr. PETERS, Mr. LUJA´N, Mr. KELLY, Mr. OSSOFF, and Mr. WARNOCK) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect a person’s ability to determine whether to con- tinue 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1975 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Women’s Health Pro- 2 tection Act of 2021’’. 3 SEC. 2. FINDINGS AND PURPOSE. 4 (a) FINDINGS.—Congress finds the following: 5 (1) Abortion services are essential health care 6 and access to those services is central to people’s 7 ability to participate equally in the economic and so- 8 cial life of the United States. Abortion access allows 9 people who are pregnant to make their own decisions 10 about their pregnancies, their families, and their 11 lives. 12 (2) Since 1973, the Supreme Court repeatedly 13 has recognized the constitutional right to terminate 14 a pregnancy before fetal viability, and to terminate 15 a pregnancy after fetal viability where it is nec- 16 essary, in the good-faith medical judgment of the 17 treating health care professional, for the preserva- 18 tion of the life or health of the person who is preg- 19 nant. 20 (3) Nonetheless, access to abortion services has 21 been obstructed across the United States in various 22 ways, including blockades of health care facilities 23 and associated violence, prohibitions of, and restric- 24 tions on, insurance coverage; parental involvement 25 laws (notification and consent); restrictions that 26 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1975 IS shame and stigmatize people seeking abortion serv- 1 ices; and medically unnecessary regulations that nei- 2 ther confer any health benefit nor further the safety 3 of abortion services, but which harm people by de- 4 laying, complicating access to, and reducing the 5 availability of, abortion services. 6 (4) Reproductive Justice requires every indi- 7 vidual to have the right to make their own decisions 8 about having children regardless of their cir- 9 cumstances and without interference and discrimina- 10 tion. Reproductive Justice is a human right that can 11 and will be achieved when all people, regardless of 12 actual or perceived race, color, national origin, immi- 13 gration status, sex (including gender identity, sex 14 stereotyping, or sexual orientation), age, or disability 15 status have the economic, social, and political power 16 and resources to define and make decisions about 17 their bodies, health, sexuality, families, and commu- 18 nities in all areas of their lives, with dignity and 19 self-determination. 20 (5) Reproductive Justice seeks to address re- 21 strictions on reproductive health, including abortion, 22 that perpetuate systems of oppression, lack of bodily 23 autonomy, white supremacy, and anti-Black racism. 24 This violent legacy has manifested in policies includ- 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1975 IS ing enslavement, rape, and experimentation on Black 1 women; forced sterilizations; medical experimen- 2 tation on low-income women’s reproductive systems; 3 and the forcible removal of Indigenous children. Ac- 4 cess to equitable reproductive health care, including 5 abortion services, has always been deficient in the 6 United States for Black, Indigenous, and other Peo- 7 ple of Color (BIPOC) and their families. 8 (6) The legacy of restrictions on reproductive 9 health, rights, and justice is not a dated vestige of 10 a dark history. Presently, the harms of abortion-spe- 11 cific restrictions fall especially heavily on people with 12 low incomes, BIPOC, immigrants, young people, 13 people with disabilities, and those living in rural and 14 other medically underserved areas. Abortion-specific 15 restrictions are even more compounded by the ongo- 16 ing criminalization of people who are pregnant, in- 17 cluding those who are incarcerated, living with HIV, 18 or with substance-use disorders. These communities 19 already experience health disparities due to social, 20 political, and environmental inequities, and restric- 21 tions on abortion services exacerbate these harms. 22 Removing medically unjustified restrictions on abor- 23 tion services would constitute one important step on 24 the path toward realizing Reproductive Justice by 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1975 IS ensuring that the full range of reproductive health 1 care is accessible to all who need it. 2 (7) Abortion-specific restrictions are a tool of 3 gender oppression, as they target health care serv- 4 ices that are used primarily by women. These pater- 5 nalistic restrictions rely on and reinforce harmful 6 stereotypes about gender roles, women’s decision- 7 making, and women’s need for protection instead of 8 support, undermining their ability to control their 9 own lives and well-being. These restrictions harm the 10 basic autonomy, dignity, and equality of women, and 11 their ability to participate in the social and economic 12 life of the Nation. 13 (8) The terms ‘‘woman’’ and ‘‘women’’ are used 14 in this bill to reflect the identity of the majority of 15 people targeted and affected by restrictions on abor- 16 tion services, and to address squarely the targeted 17 restrictions on abortion, which are rooted in misog- 18 yny. However, access to abortion services is critical 19 to the health of every person capable of becoming 20 pregnant. This Act is intended to protect all people 21 with the capacity for pregnancy—cisgender women, 22 transgender men, non-binary individuals, those who 23 identify with a different gender, and others—who 24 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1975 IS are unjustly harmed by restrictions on abortion serv- 1 ices. 2 (9) Since 2011, States and local governments 3 have passed nearly 500 restrictions singling out 4 health care providers who offer abortion services, 5 interfering with their ability to provide those services 6 and the patients’ ability to obtain those services. 7 (10) Many State and local governments have 8 imposed restrictions on the provision of abortion 9 services that are neither evidence-based nor gen- 10 erally applicable to the medical profession or to 11 other medically comparable outpatient gynecological 12 procedures, such as endometrial ablations, dilation 13 and curettage for reasons other than abortion, 14 hysteroscopies, loop electrosurgical excision proce- 15 dures, or other analogous non-gynecological proce- 16 dures performed in similar outpatient settings in- 17 cluding vasectomy, sigmoidoscopy, and colonoscopy. 18 (11) Abortion is essential health care and one 19 of the safest medical procedures in the United 20 States. An independent, comprehensive review of the 21 state of science on the safety and quality of abortion 22 services, published by the National Academies of 23 Sciences, Engineering, and Medicine in 2018, found 24 that abortion in the United States is safe and effec- 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1975 IS tive and that the biggest threats to the quality of 1 abortion services in the United States are State reg- 2 ulations that create barriers to care. These abortion- 3 specific restrictions conflict with medical standards 4 and are not supported by the recommendations and 5 guidelines issued by leading reproductive health care 6 professional organizations including the American 7 College of Obstetricians and Gynecologists, the Soci- 8 ety of Family Planning, the National Abortion Fed- 9 eration, the World Health Organization, and others. 10 (12) Many abortion-specific restrictions do not 11 confer any health or safety benefits. Instead, these 12 restrictions have the purpose and effect of unduly 13 burdening people’s personal and private medical de- 14 cisions to end their pregnancies by making access to 15 abortion services more difficult, invasive, and costly, 16 often forcing people to travel significant distances 17 and make multiple unnecessary visits to the pro- 18 vider, and in some cases, foreclosing the option alto- 19 gether. For example, a 2018 report from the Univer- 20 sity of California San Francisco’s Advancing New 21 Standards in Reproductive Health research group 22 found that in 27 cities across the United States, 23 people have to travel more than 100 miles in any di- 24 rection to reach an abortion provider. 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1975 IS (13) An overwhelming majority of abortions in 1 the United States are provided in clinics, not hos- 2 pitals, but the large majority of counties throughout 3 the United States have no clinics that provide abor- 4 tion. 5 (14) These restrictions additionally harm peo- 6 ple’s health by reducing access not only to abortion 7 services but also to other essential health care serv- 8 ices offered by many of the providers targeted by the 9 restrictions, including— 10 (A) screenings and preventive services, in- 11 cluding contraceptive services; 12 (B) testing and treatment for sexually 13 transmitted infections; 14 (C) LGBTQ health services; and 15 (D) referrals for primary care, intimate 16 partner violence prevention, prenatal care and 17 adoption services. 18 (15) The cumulative effect of these numerous 19 restrictions has been to severely limit the availability 20 of abortion services in some areas, creating a patch- 21 work system where access to abortion services is 22 more available in some States than in others. A 23 2019 report from the Government Accountability Of- 24 fice examining State Medicaid compliance with abor- 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1975 IS tion coverage requirements analyzed seven key chal- 1 lenges (identified both by health care providers and 2 research literature) and their effect on abortion ac- 3 cess, and found that access to abortion services var- 4 ied across the States and even within a State. 5 (16) International human rights law recognizes 6 that access to abortion is intrinsically linked to the 7 rights to life, health, equality and non-discrimina- 8 tion, privacy, and freedom from ill-treatment. United 9 Nations (UN) human rights treaty monitoring bod- 10 ies have found that legal abortion services, like other 11 reproductive health care services, must be available, 12 accessible, affordable, acceptable, and of good qual- 13 ity. UN human rights treaty bodies have likewise 14 condemned medically unnecessary barriers to abor- 15 tion services, including mandatory waiting periods, 16 biased counseling requirements, and third-party au- 17 thorization requirements. 18 (17) Core human rights treaties ratified by the 19 United States protect access to abortion. For exam- 20 ple, in 2018, the UN Human Rights Committee, 21 which oversees implementation of the ICCPR, made 22 clear that the right to life, enshrined in Article 6 of 23 the ICCPR, at a minimum requires governments to 24 provide safe, legal, and effective access to abortion 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1975 IS where a person’s life and health is at risk, or when 1 carrying a pregnancy to term would cause substan- 2 tial pain or suffering. The Committee stated that 3 governments must not impose restrictions on abor- 4 tion which subject women and girls to physical or 5 mental pain or suffering, discriminate against them, 6 arbitrarily interfere with their privacy, or place them 7 at risk of undertaking unsafe abortions. Further- 8 more, the Committee stated that governments should 9 remove existing barriers that deny effective access to 10 safe and legal abortion, refrain from introducing 11 new barriers to abortion, and prevent the stigmatiza- 12 tion of those seeking abortion. 13 (18) UN independent human rights experts 14 have expressed particular concern about barriers to 15 abortion services in the United States. For example, 16 at the conclusion of his 2017 visit to the United 17 States, the UN Special Rapporteur on extreme pov- 18 erty and human rights noted concern that low-in- 19 come women face legal and practical obstacles to ex- 20 ercising their constitutional right to access abortion 21 services, trapping many women in cycles of poverty. 22 Similarly, in May 2020, the UN Working Group on 23 discrimination against women and girls, along with 24 other human rights experts, expressed concern that 25 VerDate Sep 11 2014 16:50 Jun 22, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1975.IS S1975 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1975 IS some states had manipulated the COVID–19 crisis 1 to restrict access to abortion, which the experts rec- 2 ognized as ‘‘the latest example illustrating a pattern 3 of restrictions and retrogressions in access to legal 4 abortion care across the country’’ and reminded 5 U.S. au [Text truncated for display. Full text available on Congress.gov.]