Freedom to Travel for Health Care Act of 2023

II 118TH CONGRESS 1ST SESSION S. 2053 To protect freedom of travel and reproductive rights. IN THE SENATE OF THE UNITED STATES JUNE 20, 2023 Ms. CORTEZ MASTO (for herself, Mr. WHITEHOUSE, Mrs. MURRAY, Mrs. GILLIBRAND, Mr. DURBIN, Mr. MERKLEY, Mr. MURPHY, Mr. MARKEY, Ms. STABENOW, Mr. COONS, Mr. SANDERS, Mr. PADILLA, Mr. WYDEN, Mrs. FEINSTEIN, Mr. BLUMENTHAL, Mr. CARDIN, Ms. CANTWELL, Mr. MENENDEZ, Mr. VAN HOLLEN, Mr. BENNET, Ms. SMITH, Mr. CARPER, Mrs. SHAHEEN, Ms. BALDWIN, Mr. WARNER, Mr. WARNOCK, Ms. HIRONO, Mr. KAINE, Ms. DUCKWORTH, Mr. BROWN, Mr. HICKENLOOPER, Ms. WARREN, Mr. WELCH, Ms. KLOBUCHAR, Mr. FETTERMAN, Ms. ROSEN, and Mr. HEINRICH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect freedom of travel and reproductive rights. 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 ‘‘Freedom to Travel 4 for Health Care Act of 2023’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 2053 IS (1) The right to travel freely and voluntarily 1 among the several States is one of the chief privi- 2 leges and immunities guaranteed to all citizens of 3 the United States by the 14th Amendment and one 4 of the fundamental rights guaranteed to all persons 5 under the 14th Amendment’s Equal Protection 6 Clause. 7 (2) Section 5 of the 14th Amendment empowers 8 Congress to enforce, by appropriate legislation, its 9 provisions. 10 (3) Article 1, section 8, clause 3 of the Con- 11 stitution of the United States empowers Congress to 12 regulate commerce among the several States. 13 (4) The Supreme Court has repeatedly held 14 that ‘‘a citizen of one State who travels in other 15 States, intending to return home at the end of his 16 journey, is entitled to enjoy the ‘Privileges and Im- 17 munities of Citizens in the several States’ that he 18 visits’’ (Saenz v. Roe, 526 U.S. 489, 501 (1999) 19 (citing Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) 20 (C.C.E.D.Pa.1823); Edwards v. California, 314 U.S. 21 160 (1941); United States v. Guest, 383 U.S. 745 22 (1966))). 23 (5) The Supreme Court long ago decided that 24 one of the privileges which the Constitution guaran- 25 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 2053 IS tees to citizens of 1 State is the ‘‘fundamental’’ right 1 to travel to another State to seek and obtain services 2 lawful in that State, including medical services, on 3 terms of substantial equality with the citizens of 4 that State (Toomer v. Witsell, 334 U.S. 385, 396 5 (1948); Hicklin v. Orbeck, 437 U.S. 518, 525 6 (1978); Doe v. Bolton, 410 U.S. 179, 200 (1973) 7 (citing Ward v. Maryland, 79 U.S. 418 (1870)); 8 Chalker v. Birmingham & N.W.Ry. Co., 249 U.S. 9 522, 527 (1919); Shaffer v. Carter, 252 U.S. 37, 10 52, 53 (1920)). 11 (6) Since the 2022 Supreme Court decision in 12 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 13 2228 (2022), State legislatures have proposed and 14 enacted legislation attempting to interfere with the 15 ability to travel for reproductive health care. 16 SEC. 3. FREEDOM OF TRAVEL. 17 (a) PROHIBITED CONDUCT.—It shall be unlawful for 18 any person or government to— 19 (1) restrict or in any way sanction, hold liable, 20 discriminate against, or otherwise disadvantage any 21 individual from traveling to another State to receive 22 or provide reproductive health care that is legal in 23 that State; 24 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 2053 IS (2) restrict or in any way sanction, hold liable, 1 discriminate against, or otherwise disadvantage any 2 individual, entity, or organization from assisting an 3 individual in traveling to another State to receive or 4 provide reproductive health care that is legal in that 5 State; 6 (3) deny any right, benefit, or privilege to an 7 individual, entity, or organization as retaliation for 8 another person’s travel to another State to receive or 9 provide reproductive health care that is legal in that 10 State; or 11 (4) restrict or in any way sanction, hold liable, 12 discriminate against, or otherwise disadvantage a re- 13 productive health care provider for providing, initi- 14 ating, or otherwise enabling reproductive health care 15 services for an individual who does not reside in the 16 State wherein the provider offers health care services 17 if it would be legal for the health care provider to 18 provide, initiate, or otherwise enable the same repro- 19 ductive health care services to an individual who re- 20 sides in the State where the provider offers health 21 care services. 22 (b) PREEMPTION.—A State law that is inconsistent 23 with this section shall be preempted and shall have no 24 legal effect. No State, State official, or any other person 25 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 2053 IS acting under the color of law may enforce or apply any 1 law that is inconsistent with this section. 2 (c) ENFORCEMENT.— 3 (1) ATTORNEY GENERAL.—The Attorney Gen- 4 eral may commence a civil action in United States 5 district court on behalf of the United States against 6 any State, State official, or any other person acting 7 under the color of law in violation of this section. 8 The court shall hold unlawful and set aside the limi- 9 tation or requirement if it is in violation of this sec- 10 tion. 11 (2) PRIVATE RIGHT OF ACTION.—Any indi- 12 vidual or entity adversely affected by an alleged vio- 13 lation of this section may commence a civil action in 14 State or Federal court against any State, State offi- 15 cial, or any other person acting under the color of 16 law in violation of this section. The court shall hold 17 unlawful and set aside the limitation or requirement 18 if it is in violation of this section. 19 (3) REPRODUCTIVE HEALTH CARE PRO- 20 VIDER.—A reproductive health care provider may 21 commence an action for relief on its own behalf, on 22 behalf of the provider’s staff, or on behalf of the 23 provider’s patients who are or may be adversely af- 24 fected by an alleged violation of this section. 25 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 2053 IS (4) REMEDIES.—In any action under this sec- 1 tion, the court may award appropriate relief, includ- 2 ing damages, declaratory relief, and temporary, pre- 3 liminary, or permanent injunctive relief. 4 (5) COSTS.—In any action under this section, 5 the court shall award costs of litigation, as well as 6 reasonable attorney’s fees, to any prevailing plain- 7 tiff. A plaintiff shall not be liable to a defendant for 8 costs or attorney’s fees in any non-frivolous action 9 under this section. 10 (6) JURISDICTION.—The district courts of the 11 United States shall have jurisdiction over pro- 12 ceedings under this section and shall exercise the 13 same without regard to whether the party aggrieved 14 shall have exhausted any administrative or other 15 remedies that may be provided for by law. 16 (7) ABROGATION OF STATE IMMUNITY.—Nei- 17 ther a State that enforces or maintains, nor a gov- 18 ernment official who implements or enforces, any 19 limitation or requirement that violates this section 20 shall be immune under the Tenth Amendment to the 21 Constitution of the United States, the Eleventh 22 Amendment to the Constitution of the United 23 States, the doctrine of sovereign immunity, the doc- 24 trine of qualified immunity, or any other source of 25 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 2053 IS law, from an action in a Federal or State court of 1 competent jurisdiction challenging that limitation or 2 requirement. 3 (8) RIGHT TO REMOVE.—A defendant shall 4 have a right to remove to Federal court any civil or 5 criminal proceeding that would have the purpose or 6 effect of interfering with or imposing any liability for 7 the exercise of the travel right in this section, with 8 venue in the district court of the United States for 9 the district and division embracing the place wherein 10 such proceeding is pending. An order remanding the 11 case to State court may be immediately reviewable 12 on appeal or otherwise. 13 (d) DEFINITIONS.—In this Act: 14 (1) GOVERNMENT.—The term ‘‘government’’ 15 includes each branch, department, agency, instru- 16 mentality, and official of the United States or of a 17 State. 18 (2) REPRODUCTIVE HEALTH CARE.—The term 19 ‘‘reproductive health care’’ means medical, surgical, 20 counseling, or referral services and care related to 21 pregnancy, including the prevention or termination 22 of a pregnancy, and other reproductive care. 23 (3) STATE.—The term ‘‘State’’ includes the 24 District of Columbia, Puerto Rico, each territory 25 VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 2053 IS and possession of the United States, and any sub- 1 division of a State, including any unit of local gov- 2 ernment, such as a county, city, town, village, or 3 other general purpose political subdivision of a 4 State. 5 SEC. 4. SEVERABILITY. 6 If any provision of this Act, or the application of such 7 provision to any person, entity, government, or cir- 8 cumstance, is held to be unconstitutional, the remainder 9 of this Act, or the application of such provision to all other 10 persons, entities, governments, or circumstances, shall not 11 be affected thereby. 12 Æ VerDate Sep 11 2014 04:32 Jul 13, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S2053.IS S2053 pbinns on DSKJLVW7X2PROD with $$_JOB