EACH Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1031 To ensure affordable abortion coverage and care for every person, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 29, 2023 Ms. DUCKWORTH (for herself, Mrs. MURRAY, Ms. HIRONO, Mr. MERKLEY, Ms. WARREN, Mr. PADILLA, Mr. WHITEHOUSE, Mr. MARKEY, Ms. COR- TEZ MASTO, Mr. FETTERMAN, Mrs. FEINSTEIN, Mr. BLUMENTHAL, Mr. BOOKER, Ms. STABENOW, Mr. WYDEN, Ms. KLOBUCHAR, Mr. CARDIN, Mr. BROWN, Mr. SANDERS, Ms. BALDWIN, Ms. CANTWELL, Ms. SMITH, Mr. MURPHY, Ms. ROSEN, Ms. HASSAN, Mrs. SHAHEEN, Mr. BENNET, Mrs. GILLIBRAND, Mr. VAN HOLLEN, Mr. WELCH, and Mr. HEINRICH) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To ensure affordable abortion coverage and care for every person, and for other purposes. 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 ‘‘Equal Access to Abor- 4 tion Coverage in Health Insurance Act of 2023’’ or the 5 ‘‘EACH Act of 2023’’. 6 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1031 IS SEC. 2. FINDINGS. 1 Congress makes the following findings: 2 (1) All people should have access to abortion 3 services regardless of actual or perceived race, color, 4 ethnicity, language, ancestry, citizenship, immigra- 5 tion status, sex (including a sex stereotype; preg- 6 nancy, childbirth, or a related medical condition; 7 sexual orientation or gender identity; and sex char- 8 acteristics), age, disability, or sex work status or be- 9 havior. 10 (2) A person’s income level, wealth, or type of 11 insurance should not prevent them from having ac- 12 cess to a full range of pregnancy-related health care, 13 including abortion services. 14 (3) No person should have the decision to have, 15 or not to have, an abortion made for them based on 16 the ability or inability to afford the health care serv- 17 ice. 18 (4) Since 1976, the Federal Government has 19 banned the use of Federal funds to pay for abortion 20 services and allows for exceptions only in very nar- 21 row circumstances. This ban affects people of repro- 22 ductive age in the United States who are insured 23 through the Medicaid program, as well as individuals 24 who receive insurance or care through other feder- 25 ally funded health programs and plans. 26 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1031 IS (5) Women make up the majority of Medicaid 1 enrollees (54 percent) and, in 2019, approximately 2 14,000,000 women of reproductive age relied on the 3 program for care. Due to systematic barriers and 4 discrimination, a disproportionately higher number 5 of women of color and Lesbian, Gay, Bisexual, 6 Transgender, or Queer (LGBTQ) individuals are en- 7 rolled in the program. 8 (6) Women of color are more likely to be in- 9 sured by the Medicaid program. Nationwide, 29 per- 10 cent of Black women and 25 percent of Hispanic 11 women aged 15 to 49 were enrolled in Medicaid in 12 2018, compared with 15 percent of White women. 13 (7) In the aggregate, nearly one-fifth (19 per- 14 cent) of Asian-American and Pacific-Islander women 15 are enrolled in the Medicaid program, while enroll- 16 ment rates for certain Asian ethnic subgroups are 17 much higher (at 62 percent of Bhutanese women, 43 18 percent of Hmong women and 32 percent of Paki- 19 stani women). 20 (8) Medicaid also provides coverage to more 21 than 1 in 4 (27 percent) non-elderly American In- 22 dian and Alaska Native (AIAN) adults and half of 23 AIAN children. 24 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1031 IS (9) In a 2014 nationwide survey of LGBT peo- 1 ple with incomes less than 400 percent Federal Pov- 2 erty Level (FPL), 61 percent of all respondents had 3 incomes in the Medicaid expansion range—up to 4 138 percent of the FPL—including 73 percent of 5 African-American respondents, 67 percent of Latino 6 respondents, and 53 percent of White respondents. 7 Another survey found that 32 percent of Asian and 8 Native Hawaiian/Pacific Islander transgender people 9 were living in poverty. 10 (10) Of women aged 15 through 44 enrolled in 11 Medicaid in 2018, 55 percent lived in the 34 States 12 and the District of Columbia where Medicaid does 13 not cover abortion services except in limited cir- 14 cumstances. This amounted to 7,200,000 women of 15 reproductive age, including 3,000,000 women living 16 below the FPL. Of this population, Black, Indige- 17 nous, and other People of Color (BIPOC) women ac- 18 counted for 51 percent of those enrolled. 19 (11) The Indian Health Service (IHS) is the 20 federally funded health program for American Indi- 21 ans and Alaska Natives. The IHS serves a popu- 22 lation of approximately 2,560,000 and as a federally 23 funded system, since 1988, it has been barred from 24 providing abortion services except for very limited 25 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1031 IS cases. American Indians and Alaska Natives often 1 face higher levels of poverty and limited access to 2 health care for a number of intersecting oppressions 3 thus leaving them without recourse for the Federal 4 ban on abortion services. 5 (12) Moreover, 26 States also prohibit coverage 6 of abortion services in the marketplaces and 11 pro- 7 hibit coverage in private health insurance plans 8 under the Patient Protection and Affordable Care 9 Act (Public Law 111–148). 10 (13) A recent report details how restrictions on 11 abortion services coverage interfere with a person’s 12 individual decision making, with their health and 13 well-being, with their economic security, with their 14 vulnerability to intimate partner violence, and with 15 their constitutionally protected right to a safe and 16 normal health care service. 17 (14) About 25 percent of women covered by 18 Medicaid seeking abortion services must carry their 19 pregnancies to term because they are unable to ob- 20 tain funds for their care. Government-imposed bar- 21 riers to abortion services restrict people’s decisions 22 on if, when, and how to parent, and have long-last- 23 ing and life-altering harmful effects on the pregnant 24 person, their families and their communities. Those 25 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1031 IS who seek and are denied abortion services are more 1 likely to remain in or fall into poverty than those 2 who access the care they need. 3 (15) Restrictions on abortion service coverage 4 have a disproportionately harmful impact on women 5 with low incomes, women of color, immigrant 6 women, LGBTQ people, and young women. Addi- 7 tionally, numerous State-imposed barriers make it 8 disparately difficult for low-income people, people of 9 color, immigrants, LGBTQ people, and young people 10 to access the health care and resources necessary to 11 prevent unintended pregnancy or to assure that they 12 are able to carry healthy pregnancies to term. Fur- 13 thermore, young people of reproductive age (ages 15 14 to 24) are more likely to have a lower income than 15 those older than that, and this income gap is greater 16 for young BIPOC. More than 40 percent of youth 17 and children under age 19 and almost a quarter of 18 young people age 19 to 25 have health insurance 19 through government programs. Without insurance 20 coverage for abortion services, young people are at 21 greater risk of not having the economic means to af- 22 ford care outside of insurance. Young people face 23 disproportionate access barriers to abortion services, 24 including parental involvement requirement (notifi- 25 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1031 IS cation and consent) and cost, in addition to barriers 1 to contraception and inadequate and incomplete sex- 2 ual and sexuality education. These challenges, which 3 are magnified for BIPOC and queer, trans, and non- 4 binary youth, can cause significant delays in access 5 to needed care, and could ultimately harm the life of 6 the young person seeking abortion services. These 7 institutionalized barriers deny young people’s right 8 to bodily autonomy and can force young people to 9 encounter an abusive parent or guardian, ignores 10 trusted relationships young people may have with 11 adults other than a parent or legal guardian, and in 12 the case of the judicial bypass process, may force 13 young BIPOC to interact with a legal system that 14 has historically targeted and caused harm to com- 15 munities of color. 16 (16) These and other government-created and 17 government-institutionalized barriers—including the 18 restriction on funding for abortion services in Fed- 19 eral programs—exacerbate and create poverty and 20 racial inequality in income, wealth-generation, and 21 access to services. 22 (17) Access to health care, including abortion 23 services, promotes the general welfare of people liv- 24 ing in the United States. Singling out abortion serv- 25 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1031 IS ices for funding restrictions in health care programs 1 otherwise designed to promote the health and well- 2 being of people in the United States has cost preg- 3 nant people their lives, their livelihoods, their ability 4 to obtain or maintain economic security for them- 5 selves and their families, their ability to meet their 6 family’s basic needs, their ability to continue their 7 education without disruption, and their ability to 8 break free of abusive relationships. 9 (18) Like other health care and health insur- 10 ance markets in the United States, abortion services 11 and public insurance programs are commercial ac- 12 tivities that affect interstate commerce. Providers 13 and patients travel across State lines, and otherwise 14 engage in interstate commerce, to provide and access 15 abortion services. Material goods, services, and fed- 16 erally regulated medications used in abortion serv- 17 ices circulate in interstate commerce. 18 (19) Congress has the authority to enact this 19 Act to ensure affordable coverage of abortion serv- 20 ices pursuant to— 21 (A) its powers under the necessary and 22 proper clause of section 8, article I of the Con- 23 stitution of the United States; 24 VerDate Sep 11 2014 22:40 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1031 IS (B) its powers under the commerce clause 1 of section 8, article I of the Constitution of the 2 United States; 3 (C) its powers to tax and spend for the 4 general welfare under section 8, article I of the 5 Constitution of the United States; and 6 (D) its powers to enforce section 1 of the 7 Fourteenth Amendment under section 5 of the 8 Fourteenth Amendment to the Constitution of 9 the United States. 10 (20) Congress has exercised these constitutional 11 powers to create, expand, and insure health care ac- 12 cess for people in the United States for decades. 13 Pursuant to this constitutional authority, Congress 14 has enacted, and subsequently reauthorized, numer- 15 ous health care programs including title XVIII of 16 the Social Security Act (Medicare, enacted in 1965); 17 title XIX of the Social Security Act (Medicaid, en- 18 acted in 1965); and title XXI of the Social Security 19 Act (Children’s Health Insurance Program, enacted 20 in 1997). 21 SEC. 3. DEFINITIONS. 22 For purposes of this Act: 23 (1) ABORTION SERVICES.—The term ‘‘abortion 24 services’’ means an abortion and any services related 25 VerDate Sep 11 2014 23:27 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1031 IS to, and provided in conjunction with, an abortion, 1 whether or not provided at the same time or on the 2 same day as the abortion. 3 (2) HEALTH PROGRAM OR PLAN.—The term 4 ‘‘health program or plan’’ means the following 5 health programs or plans that pay the cost of, or 6 provide, health care: 7 (A) The Medicaid program under title XIX 8 of the Social Security Act (42 U.S.C. 1396 et 9 seq.). 10 (B) The Children’s Health Insurance Pro- 11 gram under title XXI of the Social Security Act 12 (42 U.S.C. 1397 et seq.). 13 (C) The Medicare program under title 14 XVIII of the Social Security Act (42 U.S.C. 15 1395 et seq.). 16 (D) A medicare supplemental policy as de- 17 fined in section 1882(g)(1) of the Social Secu- 18 rity Act (42 U.S.C. 1395ss(g)(1)). 19 (E) The Indian Health Service program 20 under the Indian Health Care Improvement Act 21 (25 U.S.C. 1601 et seq.). 22 (F) Medical care and health benefits under 23 the TRICARE program (as defined in section 24 1072(7) of title 10, United States Code). 25 VerDate Sep 11 2014 03:56 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1031.IS S1031 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1031 IS (G) Benefits under the uniform health ben- 1 efits program for employees of the Department 2 of Defense assigned to a nonappropriated fund 3 instrumentality of the Department established 4 under section 349 of the National Defense Au- 5 thorization Act for Fiscal Year 1995 (Public 6 Law 103–337; 10 U.S.C. 1587 note). 7 (H) Benefits for veterans under chapter 17 8 of title 38, United States Code. 9 (I) Medical care for survivors and depend- 10 ents of veterans under section 1781 of title 38, 11 United States Code. 12 (J) Medical care for individuals in the care 13 or custody of the Department of Homeland Se- 14 curity pursuant to any of section 235, 236, or 15 241 of the Immigration and Nationality Act (8 16 U.S.C. 1225, 1226, 1231). 17 (K) Medical care for individuals in the care 18 or custody of the Department of Health and 19 Human Services, Office of Refugee Resettle- 20 ment under section 235 of the William Wilber- 21 force Trafficking Victims Protection Reauthor- 22 ization Act of 2008 (8 U.S.C. 1232) or section 23 462 of the Homeland Security Act of 2002 (6 24 U.S.C. 279). 25 VerDate Sep 11 2014 22:40 Apr 10, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 [Text truncated for display. Full text available on Congress.gov.]