What This Bill Does
This bill protects people's right to get an abortion and protects doctors' right to provide abortion services. The bill says the government cannot put limits on abortion services that are stricter than limits placed on similar medical procedures, unless those limits are truly necessary for patient safety.
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Who It Affects
• People who want to have an abortion
• Doctors, nurses, nurse practitioners, pharmacists and physician assistants who provide abortion services
• Hospitals, clinics and pharmacies that provide abortion services
• State and federal government agencies and officials
• People who help or support others seeking abortion services
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Key Provisions
• Before a fetus can survive outside the womb (called "viability"), patients have the right to end their pregnancy and doctors have the right to provide abortion services without government restrictions on the procedure, the drugs used, or who can provide the service (Sec. 4(a)(1))
• After viability, abortion is allowed only when a doctor believes in good faith that continuing the pregnancy would threaten the pregnant person's life or health (Sec. 4(a)(2)(A))
• Doctors can provide abortion services through telemedicine (video or phone visits) using the same rules that apply to other similar medical services (Sec. 4(a)(1)(C))
• Doctors cannot be required to give patients medically false information before providing an abortion (Sec. 4(a)(1)(F))
• People have a fundamental right to travel to another state to get abortion services, and people can help others travel for these services (Sec. 5)
• The federal government can sue states that break these rules, and patients and doctors can also sue in court (Sec. 8(a) and (b))
• Courts must award attorney's fees and court costs to anyone who wins a case under this law (Sec. 8(e))
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What Changes
If this law passes, states cannot enforce laws that restrict abortion before viability or that are stricter than rules applied to similar medical procedures. Any state or federal law that conflicts with this bill becomes unenforceable. Doctors could not face penalties for providing abortion services that comply with this bill, even if a state law says otherwise. People could sue in federal court if a state tries to enforce restrictions that violate this bill.
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Important Definitions
**Abortion Services**: An abortion plus any medical or non-medical services connected to the abortion, whether provided at the same time or different times (Sec. 3(1))
**Viability**: The point in pregnancy when, based on a doctor's medical judgment, there is a reasonable chance the fetus could survive outside the uterus with or without machines to help (Sec. 3(7))
**Pregnancy**: The period beginning when a fertilized egg implants (Sec. 3(5))
**Health Care Provider**: Doctors, nurses, pharmacists, physician assistants, hospitals, clinics or pharmacies that provide or want to provide health services including abortion (Sec. 3(3))
**Medically Comparable Procedures**: Medical procedures that have similar health and safety risks, complexity or clinical setting needs (Sec. 3(4))
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Effective Date
This law takes effect immediately upon being signed into law (Sec. 9)
II
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. HAS-
SAN, Mr. HEINRICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, Mr.
KELLY, Mr. KING, Mr. LUJA´N, 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 fol-
lowing 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 con-
tinue or end a pregnancy, and to protect a health care
provider’s ability to provide abortion services.
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•S 701 PCS
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 2023’’.
5
SEC. 2. PURPOSE.
6
The purposes of this Act are as follows:
7
(1) To permit people to seek and obtain abor-
8
tion services, and to permit health care providers to
9
provide abortion services, without harmful or unwar-
10
ranted limitations or requirements that single out
11
the provision of abortion services for restrictions
12
that are more burdensome than those restrictions
13
imposed on medically comparable procedures, do not
14
significantly advance reproductive health or the safe-
15
ty of abortion services, or make abortion services
16
more difficult to access.
17
(2) To promote access to abortion services and
18
thereby protect women’s ability to participate equally
19
in the economic and social life of the United States.
20
(3) To protect people’s ability to make decisions
21
about their bodies, medical care, family, and life’s
22
course.
23
(4) To eliminate unwarranted burdens on com-
24
merce and the right to travel. Abortion bans and re-
25
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•S 701 PCS
strictions invariably affect commerce over which the
1
United States has jurisdiction. Health care providers
2
engage in economic and commercial activity when
3
they provide abortion services. Moreover, there is an
4
interstate market for abortion services and, in order
5
to provide such services, health care providers en-
6
gage in interstate commerce to purchase medicine,
7
medical equipment, and other necessary goods and
8
services; to obtain and provide training; and to em-
9
ploy and obtain commercial services from health care
10
personnel, many of whom themselves engage in
11
interstate commerce, including by traveling across
12
State lines. Congress has the authority to enact this
13
Act to protect access to abortion services pursuant
14
to—
15
(A) its powers under the commerce clause
16
of section 8 of article I of the Constitution of
17
the United States;
18
(B) its powers under section 5 of the Four-
19
teenth Amendment to the Constitution of the
20
United States to enforce the provisions of sec-
21
tion 1 of the Fourteenth Amendment; and
22
(C) its powers under the necessary and
23
proper clause of section 8 of Article I of the
24
Constitution of the United States.
25
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•S 701 PCS
SEC. 3. DEFINITIONS.
1
In this Act:
2
(1) ABORTION SERVICES.—The term ‘‘abortion
3
services’’ means an abortion and any medical or
4
non-medical services related to and provided in con-
5
junction with an abortion (whether or not provided
6
at the same time or on the same day as the abor-
7
tion).
8
(2) GOVERNMENT.—The term ‘‘government’’
9
includes each branch, department, agency, instru-
10
mentality, and official of the United States or a
11
State.
12
(3) HEALTH
CARE
PROVIDER.—The term
13
‘‘health care provider’’ means any entity (including
14
any hospital, clinic, or pharmacy) or individual (in-
15
cluding any physician, certified nurse-midwife, nurse
16
practitioner, pharmacist, or physician assistant)
17
that—
18
(A) is engaged or seeks to engage in the
19
delivery of health care services, including abor-
20
tion services; and
21
(B) if required by law or regulation to be
22
licensed or certified to engage in the delivery of
23
such services—
24
(i) is so licensed or certified; or
25
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•S 701 PCS
(ii) would be so licensed or certified
1
but for their past, present, or potential
2
provision of abortion services protected by
3
section 4.
4
(4) MEDICALLY COMPARABLE PROCEDURES.—
5
The term ‘‘medically comparable procedures’’ means
6
medical procedures that are similar in terms of
7
health and safety risks to the patient, complexity, or
8
the clinical setting that is indicated.
9
(5) PREGNANCY.—The term ‘‘pregnancy’’ refers
10
to the period of the human reproductive process be-
11
ginning with the implantation of a fertilized egg.
12
(6) STATE.—The term ‘‘State’’ includes the
13
District of Columbia, the Commonwealth of Puerto
14
Rico, and each territory and possession of the
15
United States, and any subdivision of any of the
16
foregoing, including any unit of local government,
17
such as a county, city, town, village, or other general
18
purpose political subdivision of a State.
19
(7) VIABILITY.—The term ‘‘viability’’ means
20
the point in a pregnancy at which, in the good-faith
21
medical judgment of the treating health care pro-
22
vider, and based on the particular facts of the case
23
before the health care provider, there is a reasonable
24
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•S 701 PCS
likelihood of sustained fetal survival outside the
1
uterus with or without artificial support.
2
SEC. 4. PROTECTED ACTIVITIES AND SERVICES.
3
(a) GENERAL RULES.—
4
(1) PRE-VIABILITY.—A health care provider has
5
a right under this Act to provide abortion services,
6
and a patient has a corresponding right under this
7
Act to terminate a pregnancy prior to viability with-
8
out being subject to any of the following limitations
9
or requirements:
10
(A) A prohibition on abortion prior to via-
11
bility, including a prohibition or restriction on
12
a particular abortion procedure or method, or a
13
prohibition on providing or obtaining such abor-
14
tions.
15
(B) A limitation on a health care pro-
16
vider’s ability to prescribe or dispense drugs
17
that could be used for reproductive health pur-
18
poses based on current evidence-based regimens
19
or the provider’s good-faith medical judgment,
20
or a limitation on a patient’s ability to receive
21
or use such drugs, other than a limitation gen-
22
erally applicable to the prescription, dispensing,
23
or distribution of drugs.
24
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•S 701 PCS
(C) A limitation on a health care provider’s
1
ability to provide, or a patient’s ability to re-
2
ceive, abortion services via telemedicine, other
3
than a limitation generally applicable to the
4
provision of medically comparable services via
5
telemedicine.
6
(D) A limitation or prohibition on a pa-
7
tient’s ability to receive, or a provider’s ability
8
to provide, abortion services in a State based on
9
the State of residency of the patient, or a prohi-
10
bition or limitation on the ability of any indi-
11
vidual to assist or support a patient seeking
12
abortion.
13
(E) A requirement that a health care pro-
14
vider perform specific tests or medical proce-
15
dures in connection with the provision of abor-
16
tion services (including prior to or subsequent
17
to the abortion), unless generally required for
18
the provision of medically comparable proce-
19
dures.
20
(F) A requirement that a health care pro-
21
vider offer or provide a patient seeking abortion
22
services medically inaccurate information.
23
(G) A limitation or requirement concerning
24
the physical plant, equipment, staffing, or hos-
25
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•S 701 PCS
pital transfer arrangements of facilities where
1
abortion services are provided, or the creden-
2
tials or hospital privileges or status of personnel
3
at such facilities, that is not imposed on facili-
4
ties or the personnel of facilities where medi-
5
cally comparable procedures are performed.
6
(H) A requirement that, prior to obtaining
7
an abortion, a patient make one or more medi-
8
cally unnecessary in-person visits to the pro-
9
vider of abortion services or to any individual or
10
entity that does not provide abortion services.
11
(I) A limitation on a health care provider’s
12
ability to provide immediate abortion services
13
when that health care provider believes, based
14
on the good-faith medical judgment of the pro-
15
vider, that delay would pose a risk to the pa-
16
tient’s life or health.
17
(J) A requirement that a patient seeking
18
abortion services at any point or points in time
19
prior to viability disclose the patient’s reason or
20
reasons for seeking abortion services, or a limi-
21
tation on providing or obtaining abortion serv-
22
ices at any point or points in time prior to via-
23
bility based on any actual, perceived, or poten-
24
tial reason or reasons of the patient for obtain-
25
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•S 701 PCS
ing abortion services, regardless of whether the
1
limitation is based on a health care provider’s
2
actual or constructive knowledge of such reason
3
or reasons.
4
(2) POST-VIABILITY.—
5
(A) IN GENERAL.—A health care provider
6
has a right under this Act to provide abortion
7
services and a patient has a corresponding right
8
under this Act to terminate a pregnancy after
9
viability when, in the good-faith medical judge-
10
ment of the treating health care provider, it is
11
necessary to protect the life or health of the pa-
12
tient. This subparagraph shall not otherwise
13
apply after viability.
14
(B)
ADDITIONAL
CIRCUMSTANCES.—A
15
State may provide additional circumstances
16
under which post viability abortions are per-
17
mitted under this paragraph.
18
(C) LIMITATION.—In the case where a ter-
19
mination of a pregnancy after viability, in the
20
good-faith medical judgement of the treating
21
health care provider, is necessary to protect the
22
life or health of the patient, a State shall not
23
impose any of the limitations or requirements
24
described in paragraph (1)
25
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•S 701 PCS
(b) OTHER LIMITATIONS OR REQUIREMENTS.—The
1
rights described in subsection (a) shall not be limited or
2
otherwise infringed through any other limitation or re-
3
quirement that—
4
(1) expressly, effectively, implicitly, or as imple-
5
mented, singles out abortion, the provision of abor-
6
tion services, individuals who seek abortion services
7
or who provide assistance and support to those seek-
8
ing abortion services, health care providers who pro-
9
vide abortion services, or facilities in which abortion
10
services are provided; and
11
(2) impedes access to abortion services.
12
(c) FACTORS FOR CONSIDERATION.—A court may
13
consider the following factors, among others, in deter-
14
mining whether a limitation or requirement impedes ac-
15
cess to abortion services for purposes of subsection (b)(2):
16
(1) Whether the limitation or requirement, in a
17
provider’s good-faith medical judgment, interferes
18
with a health care provider’s ability to provide care
19
and render services, or poses a risk to the patient’s
20
health or safety.
21
(2) Whether the limitation or requirement is
22
reasonably likely to delay or deter a patient in ac-
23
cessing abortion services.
24
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•S 701 PCS
(3) Whether the limitation or requirement is
1
reasonably likely to directly or indirectly increase the
2
cost of providing abortion services or the cost for ob-
3
taining abortion services such as costs associated
4
with travel, childcare, or time off work.
5
(4) Whether the limitation or requirement is
6
reasonably likely to have the effect of necessitating
7
patient travel that would not otherwise have been re-
8
quired, including by making it necessary for a pa-
9
tient to travel out of State to obtain services.
10
(5) Whether the limitation or requirement is
11
reasonably likely to result in a decrease in the avail-
12
ability of abortion services in a given State or geo-
13
graphic region.
14
(6) Whether the limitation or requirement im-
15
poses penalties that are not imposed on other health
16
care providers for comparable conduct or failure to
17
act, or that are more severe than penalties imposed
18
on other health care providers for comparable con-
19
duct or failure to act.
20
(7) The cumulative impact of the limitation or
21
requirement combined with other limitations or re-
22
quirements.
23
(d) EXCEPTION.—To defend against a claim that a
24
limitation or requirement violates a health care provider’s
25
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•S 701 PCS
or patient’s rights under subsection (b) a party must es-
1
tablish, by clear and convincing evidence, that the limita-
2
tion or requirement is essential to significantly advance
3
the safety of abortion services or the health of th
[Text truncated for display. Full text available on Congress.gov.]