Women’s Health Protection Act of 2021

II Calendar No. 139 117TH CONGRESS 1ST SESSION H. R. 3755 IN THE SENATE OF THE UNITED STATES SEPTEMBER 27, 2021 Received SEPTEMBER 28, 2021 Read the first time SEPTEMBER 29, 2021 Read the second time and placed on the calendar AN ACT 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Women’s Health Pro- 4 tection Act of 2021’’. 5 SEC. 2. FINDINGS AND PURPOSE. 6 (a) FINDINGS.—Congress finds the following: 7 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 2 HR 3755 PCS (1) Abortion services are essential to health 1 care and access to those services is central to peo- 2 ple’s ability to participate equally in the economic 3 and social life of the United States. Abortion access 4 allows people who are pregnant to make their own 5 decisions about their pregnancies, their families, and 6 their lives. 7 (2) Since 1973, the Supreme Court repeatedly 8 has recognized the constitutional right to terminate 9 a pregnancy before fetal viability, and to terminate 10 a pregnancy after fetal viability where it is nec- 11 essary, in the good-faith medical judgment of the 12 treating health care professional, for the preserva- 13 tion of the life or health of the person who is preg- 14 nant. 15 (3) Nonetheless, access to abortion services has 16 been obstructed across the United States in various 17 ways, including blockades of health care facilities 18 and associated violence, prohibitions of, and restric- 19 tions on, insurance coverage; parental involvement 20 laws (notification and consent); restrictions that 21 shame and stigmatize people seeking abortion serv- 22 ices; and medically unnecessary regulations that nei- 23 ther confer any health benefit nor further the safety 24 of abortion services, but which harm people by de- 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 3 HR 3755 PCS laying, complicating access to, and reducing the 1 availability of, abortion services. 2 (4) Reproductive justice requires every indi- 3 vidual to have the right to make their own decisions 4 about having children regardless of their cir- 5 cumstances and without interference and discrimina- 6 tion. Reproductive Justice is a human right that can 7 and will be achieved when all people, regardless of 8 actual or perceived race, color, national origin, immi- 9 gration status, sex (including gender identity, sex 10 stereotyping, or sexual orientation), age, or disability 11 status have the economic, social, and political power 12 and resources to define and make decisions about 13 their bodies, health, sexuality, families, and commu- 14 nities in all areas of their lives, with dignity and 15 self-determination. 16 (5) Reproductive justice seeks to address re- 17 strictions on reproductive health, including abortion, 18 that perpetuate systems of oppression, lack of bodily 19 autonomy, white supremacy, and anti-Black racism. 20 This violent legacy has manifested in policies includ- 21 ing enslavement, rape, and experimentation on Black 22 women; forced sterilizations; medical experimen- 23 tation on low-income women’s reproductive systems; 24 and the forcible removal of Indigenous children. Ac- 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 4 HR 3755 PCS cess to equitable reproductive health care, including 1 abortion services, has always been deficient in the 2 United States for Black, Indigenous, and other Peo- 3 ple of Color (BIPOC) and their families. 4 (6) The legacy of restrictions on reproductive 5 health, rights, and justice is not a dated vestige of 6 a dark history. Presently, the harms of abortion-spe- 7 cific restrictions fall especially heavily on people with 8 low incomes, BIPOC, immigrants, young people, 9 people with disabilities, and those living in rural and 10 other medically underserved areas. Abortion-specific 11 restrictions are even more compounded by the ongo- 12 ing criminalization of people who are pregnant, in- 13 cluding those who are incarcerated, living with HIV, 14 or with substance-use disorders. These communities 15 already experience health disparities due to social, 16 political, and environmental inequities, and restric- 17 tions on abortion services exacerbate these harms. 18 Removing medically unjustified restrictions on abor- 19 tion services would constitute one important step on 20 the path toward realizing Reproductive Justice by 21 ensuring that the full range of reproductive health 22 care is accessible to all who need it. 23 (7) Abortion-specific restrictions are a tool of 24 gender oppression, as they target health care serv- 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 5 HR 3755 PCS ices that are used primarily by women. These pater- 1 nalistic restrictions rely on and reinforce harmful 2 stereotypes about gender roles, women’s decision- 3 making, and women’s need for protection instead of 4 support, undermining their ability to control their 5 own lives and well-being. These restrictions harm the 6 basic autonomy, dignity, and equality of women, and 7 their ability to participate in the social and economic 8 life of the Nation. 9 (8) The terms ‘‘woman’’ and ‘‘women’’ are used 10 in this bill to reflect the identity of the majority of 11 people targeted and affected by restrictions on abor- 12 tion services, and to address squarely the targeted 13 restrictions on abortion, which are rooted in misog- 14 yny. However, access to abortion services is critical 15 to the health of every person capable of becoming 16 pregnant. This Act is intended to protect all people 17 with the capacity for pregnancy—cisgender women, 18 transgender men, non-binary individuals, those who 19 identify with a different gender, and others—who 20 are unjustly harmed by restrictions on abortion serv- 21 ices. 22 (9) Since 2011, States and local governments 23 have passed nearly 500 restrictions singling out 24 health care providers who offer abortion services, 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 6 HR 3755 PCS interfering with their ability to provide those services 1 and the patients’ ability to obtain those services. 2 (10) Many State and local governments have 3 imposed restrictions on the provision of abortion 4 services that are neither evidence-based nor gen- 5 erally applicable to the medical profession or to 6 other medically comparable outpatient gynecological 7 procedures, such as endometrial ablations, dilation 8 and curettage for reasons other than abortion, 9 hysteroscopies, loop electrosurgical excision proce- 10 dures, or other analogous non-gynecological proce- 11 dures performed in similar outpatient settings in- 12 cluding vasectomy, sigmoidoscopy, and colonoscopy. 13 (11) Abortion is essential health care and one 14 of the safest medical procedures in the United 15 States. An independent, comprehensive review of the 16 state of science on the safety and quality of abortion 17 services, published by the National Academies of 18 Sciences, Engineering, and Medicine in 2018, found 19 that abortion in the United States is safe and effec- 20 tive and that the biggest threats to the quality of 21 abortion services in the United States are State reg- 22 ulations that create barriers to care. These abortion- 23 specific restrictions conflict with medical standards 24 and are not supported by the recommendations and 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 7 HR 3755 PCS guidelines issued by leading reproductive health care 1 professional organizations including the American 2 College of Obstetricians and Gynecologists, the Soci- 3 ety of Family Planning, the National Abortion Fed- 4 eration, the World Health Organization, and others. 5 (12) Many abortion-specific restrictions do not 6 confer any health or safety benefits on the patient. 7 Instead, these restrictions have the purpose and ef- 8 fect of unduly burdening people’s personal and pri- 9 vate medical decisions to end their pregnancies by 10 making access to abortion services more difficult, 11 invasive, and costly, often forcing people to travel 12 significant distances and make multiple unnecessary 13 visits to the provider, and in some cases, foreclosing 14 the option altogether. For example, a 2018 report 15 from the University of California San Francisco’s 16 Advancing New Standards in Reproductive Health 17 research group found that in 27 cities across the 18 United States, people have to travel more than 100 19 miles in any direction to reach an abortion provider. 20 (13) An overwhelming majority of abortions in 21 the United States are provided in clinics, not hos- 22 pitals, but the large majority of counties throughout 23 the United States have no clinics that provide abor- 24 tion. 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 8 HR 3755 PCS (14) These restrictions additionally harm peo- 1 ple’s health by reducing access not only to abortion 2 services but also to other essential health care serv- 3 ices offered by many of the providers targeted by the 4 restrictions, including— 5 (A) screenings and preventive services, in- 6 cluding contraceptive services; 7 (B) testing and treatment for sexually 8 transmitted infections; 9 (C) LGBTQ health services; and 10 (D) referrals for primary care, intimate 11 partner violence prevention, prenatal care and 12 adoption services. 13 (15) The cumulative effect of these numerous 14 restrictions has been to severely limit the availability 15 of abortion services in some areas, creating a patch- 16 work system where access to abortion services is 17 more available in some States than in others. A 18 2019 report from the Government Accountability Of- 19 fice examining State Medicaid compliance with abor- 20 tion coverage requirements analyzed seven key chal- 21 lenges (identified both by health care providers and 22 research literature) and their effect on abortion ac- 23 cess, and found that access to abortion services var- 24 ied across the States and even within a State. 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 9 HR 3755 PCS (16) International human rights law recognizes 1 that access to abortion is intrinsically linked to the 2 rights to life, health, equality and non-discrimina- 3 tion, privacy, and freedom from ill-treatment. United 4 Nations (UN) human rights treaty monitoring bod- 5 ies have found that legal abortion services, like other 6 reproductive health care services, must be available, 7 accessible, affordable, acceptable, and of good qual- 8 ity. UN human rights treaty bodies have likewise 9 condemned medically unnecessary barriers to abor- 10 tion services, including mandatory waiting periods, 11 biased counseling requirements, and third-party au- 12 thorization requirements. 13 (17) Core human rights treaties ratified by the 14 United States protect access to abortion. For exam- 15 ple, in 2018, the UN Human Rights Committee, 16 which oversees implementation of the ICCPR, made 17 clear that the right to life, enshrined in Article 6 of 18 the ICCPR, at a minimum requires governments to 19 provide safe, legal, and effective access to abortion 20 where a person’s life and health is at risk, or when 21 carrying a pregnancy to term would cause substan- 22 tial pain or suffering. The Committee stated that 23 governments must not impose restrictions on abor- 24 tion which subject women and girls to physical or 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 10 HR 3755 PCS mental pain or suffering, discriminate against them, 1 arbitrarily interfere with their privacy, or place them 2 at risk of undertaking unsafe abortions. Further- 3 more, the Committee stated that governments should 4 remove existing barriers that deny effective access to 5 safe and legal abortion, refrain from introducing 6 new barriers to abortion, and prevent the stigmatiza- 7 tion of those seeking abortion. 8 (18) UN independent human rights experts 9 have expressed particular concern about barriers to 10 abortion services in the United States. For example, 11 at the conclusion of his 2017 visit to the United 12 States, the UN Special Rapporteur on extreme pov- 13 erty and human rights noted concern that low-in- 14 come women face legal and practical obstacles to ex- 15 ercising their constitutional right to access abortion 16 services, trapping many women in cycles of poverty. 17 Similarly, in May 2020, the UN Working Group on 18 discrimination against women and girls, along with 19 other human rights experts, expressed concern that 20 some states had manipulated the COVID–19 crisis 21 to restrict access to abortion, which the experts rec- 22 ognized as ‘‘the latest example illustrating a pattern 23 of restrictions and retrogressions in access to legal 24 abortion care across the country’’ and reminded 25 VerDate Sep 11 2014 00:57 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3755.PCS H3755 pbinns on DSKJLVW7X2PROD with BILLS 11 HR 3755 PCS U.S. authorities that abortion care constitutes essen- 1 tial health care that must remain available during 2 and after the pandemic. They noted that barriers to 3 abortion access exacerbate systemic inequalities and 4 cause particular harm to marginalized communities, 5 including low-income people, people of color, immi- 6 grants, people with disabilities, and LGBTQ people. 7 (19) Abortion-specific restrictions affect the 8 cost and availability of abortion services, and the 9 settings in which abortion services are delivered. 10 People travel across State lines and otherwise en- 11 gage in interstate commerce to access this essential 12 medical care, and more would be forced to do so ab- 13 sent this Act. Likewise, health care providers t [Text truncated for display. Full text available on Congress.gov.]