II
Calendar No. 26
118THCONGRESS
1
STSESSION 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
MARCH8, 2023
Ms. B
ALDWIN(for herself, Mr. BLUMENTHAL, Mrs. MURRAY, Mr. SCHUMER,
Ms. W
ARREN, Ms. CORTEZMASTO, Ms. KLOBUCHAR, Ms. STABENOW,
Mrs. G
ILLIBRAND, Mr. MURPHY, Mr. BENNET, Mr. BOOKER, Mr.
B
ROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. COONS, Ms.
D
UCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mr. FETTERMAN, Ms. HAS-
SAN, Mr. HEINRICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, Mr.
K
ELLY, Mr. KING, Mr. LUJA´N, Mr. MARKEY, Mr. MENENDEZ, Mr.
M
ERKLEY, Mr. OSSOFF, Mr. PADILLA, Mr. PETERS, Mr. REED, Ms.
R
OSEN, Mr. SANDERS, Mr. SCHATZ, Mrs. SHAHEEN, Ms. SINEMA, Ms.
S
MITH, Mr. TESTER, Mr. VANHOLLEN, Mr. WARNER, Mr. WARNOCK,
Mr. W
ELCH, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the fol-
lowing bill; which was read the first time
M
ARCH9, 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.
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 2
•S 701 PCS
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the ‘‘Women’s Health Pro-4
tection Act of 2023’’. 5
SEC. 2. PURPOSE. 6
The purposes of this Act are as follows: 7
(1) To permit people to seek and obtain abor-8
tion services, and to permit health care providers to 9
provide abortion services, without harmful or unwar-10
ranted limitations or requirements that single out 11
the provision of abortion services for restrictions 12
that are more burdensome than those restrictions 13
imposed on medically comparable procedures, do not 14
significantly advance reproductive health or the safe-15
ty of abortion services, or make abortion services 16
more difficult to access. 17
(2) To promote access to abortion services and 18
thereby protect women’s ability to participate equally 19
in the economic and social life of the United States. 20
(3) To protect people’s ability to make decisions 21
about their bodies, medical care, family, and life’s 22
course. 23
(4) To eliminate unwarranted burdens on com-24
merce and the right to travel. Abortion bans and re-25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 3
•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
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 4
•S 701 PCS
SEC. 3. DEFINITIONS. 1
In this Act: 2
(1) A
BORTION SERVICES.—The term ‘‘abortion 3
services’’ means an abortion and any medical or 4
non-medical services related to and provided in con-5
junction with an abortion (whether or not provided 6
at the same time or on the same day as the abor-7
tion). 8
(2) G
OVERNMENT.—The term ‘‘government’’ 9
includes each branch, department, agency, instru-10
mentality, and official of the United States or a 11
State. 12
(3) H
EALTH CARE PROVIDER .—The term 13
‘‘health care provider’’ means any entity (including 14
any hospital, clinic, or pharmacy) or individual (in-15
cluding any physician, certified nurse-midwife, nurse 16
practitioner, pharmacist, or physician assistant) 17
that— 18
(A) is engaged or seeks to engage in the 19
delivery of health care services, including abor-20
tion services; and 21
(B) if required by law or regulation to be 22
licensed or certified to engage in the delivery of 23
such services— 24
(i) is so licensed or certified; or 25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 5
•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) M
EDICALLY 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) P
REGNANCY.—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) S
TATE.—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) V
IABILITY.—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
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 6
•S 701 PCS
likelihood of sustained fetal survival outside the 1
uterus with or without artificial support. 2
SEC. 4. PROTECTED ACTIVITIES AND SERVICES. 3
(a) G
ENERALRULES.— 4
(1) P
RE-VIABILITY.—A health care provider has 5
a right under this Act to provide abortion services, 6
and a patient has a corresponding right under this 7
Act to terminate a pregnancy prior to viability with-8
out being subject to any of the following limitations 9
or requirements: 10
(A) A prohibition on abortion prior to via-11
bility, including a prohibition or restriction on 12
a particular abortion procedure or method, or a 13
prohibition on providing or obtaining such abor-14
tions. 15
(B) A limitation on a health care pro-16
vider’s ability to prescribe or dispense drugs 17
that could be used for reproductive health pur-18
poses based on current evidence-based regimens 19
or the provider’s good-faith medical judgment, 20
or a limitation on a patient’s ability to receive 21
or use such drugs, other than a limitation gen-22
erally applicable to the prescription, dispensing, 23
or distribution of drugs. 24
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 7
•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
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 8
•S 701 PCS
pital transfer arrangements of facilities where 1
abortion services are provided, or the creden-2
tials or hospital privileges or status of personnel 3
at such facilities, that is not imposed on facili-4
ties or the personnel of facilities where medi-5
cally comparable procedures are performed. 6
(H) A requirement that, prior to obtaining 7
an abortion, a patient make one or more medi-8
cally unnecessary in-person visits to the pro-9
vider of abortion services or to any individual or 10
entity that does not provide abortion services. 11
(I) A limitation on a health care provider’s 12
ability to provide immediate abortion services 13
when that health care provider believes, based 14
on the good-faith medical judgment of the pro-15
vider, that delay would pose a risk to the pa-16
tient’s life or health. 17
(J) A requirement that a patient seeking 18
abortion services at any point or points in time 19
prior to viability disclose the patient’s reason or 20
reasons for seeking abortion services, or a limi-21
tation on providing or obtaining abortion serv-22
ices at any point or points in time prior to via-23
bility based on any actual, perceived, or poten-24
tial reason or reasons of the patient for obtain-25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 9
•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) P
OST-VIABILITY.— 5
(A) I
N 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) A
DDITIONAL CIRCUMSTANCES .—A 15
State may provide additional circumstances 16
under which post viability abortions are per-17
mitted under this paragraph. 18
(C) L
IMITATION.—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
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 10
•S 701 PCS
(b) OTHERLIMITATIONS ORREQUIREMENTS.—The 1
rights described in subsection (a) shall not be limited or 2
otherwise infringed through any other limitation or re-3
quirement that— 4
(1) expressly, effectively, implicitly, or as imple-5
mented, singles out abortion, the provision of abor-6
tion services, individuals who seek abortion services 7
or who provide assistance and support to those seek-8
ing abortion services, health care providers who pro-9
vide abortion services, or facilities in which abortion 10
services are provided; and 11
(2) impedes access to abortion services. 12
(c) F
ACTORS FORCONSIDERATION.—A court may 13
consider the following factors, among others, in deter-14
mining whether a limitation or requirement impedes ac-15
cess to abortion services for purposes of subsection (b)(2): 16
(1) Whether the limitation or requirement, in a 17
provider’s good-faith medical judgment, interferes 18
with a health care provider’s ability to provide care 19
and render services, or poses a risk to the patient’s 20
health or safety. 21
(2) Whether the limitation or requirement is 22
reasonably likely to delay or deter a patient in ac-23
cessing abortion services. 24
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 11
•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) E
XCEPTION.—To defend against a claim that a 24
limitation or requirement violates a health care provider’s 25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 12
•S 701 PCS
or patient’s rights under subsection (b) a party must es-1
tablish, by clear and convincing evidence, that the limita-2
tion or requirement is essential to significantly advance 3
the safety of abortion services or the health of the patients 4
and that the safety or health objective cannot be accom-5
plished by a different means that does not interfere with 6
the right protected under subsection (b)). 7
SEC. 5. PROTECTION OF THE RIGHT TO TRAVEL. 8
A person has a fundamental right under the Con-9
stitution of the United States and this Act to travel to 10
a State other than the person’s State of residence, includ-11
ing to obtain reproductive health services such as prenatal, 12
childbirth, fertility, and abortion services, and a person 13
has a right under this Act to assist another person to ob-14
tain such services or otherwise exercise the right described 15
in this section. 16
SEC. 6. APPLICABILITY AND PREEMPTION. 17
(a) I
NGENERAL.— 18
(1) S
UPERSEDING INCONSISTENT LAWS .—Ex-19
cept as provided under subsection (b), this Act shall 20
supersede any inconsistent Federal or State law, and 21
the implementation of such law, whether statutory, 22
common law, or otherwise, and whether adopted 23
prior to or after the date of enactment of this Act. 24
A Federal or State government official shall not ad-25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 13
•S 701 PCS
minister, implement, or enforce any law, rule, regu-1
lation, standard, or other provision having the force 2
and effect of law that conflicts with any provision of 3
this Act, notwithstanding any other provision of 4
Federal law, including the Religious Freedom Res-5
toration Act of 1993 (42 U.S.C. 2000bb et seq.). 6
(2) L
AWS AFTER DATE OF ENACTMENT .—Fed-7
eral law enacted after the date of the enactment of 8
this Act shall be subject to this Act unless such law 9
explicitly excludes such application by reference to 10
this Act. 11
(b) L
IMITATIONS.—The provisions of this Act shall 12
not supersede or apply to— 13
(1) laws regulating physical access to clinic en-14
trances; 15
(2) laws regulating insurance or medical assist-16
ance coverage of abortion services; 17
(3) the procedure described in section 18
1531(b)(1) of title 18, United States Code; or 19
(4) generally applicable State contract law. 20
(c) P
REEMPTIONDEFENSE.—In any legal or admin-21
istrative action against a person or entity who has exer-22
cised or attempted to exercise a right protected by section 23
4 or section 5 or against any person or entity who has 24
taken any step to assist any such person or entity in exer-25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 14
•S 701 PCS
cising such right, this Act shall also apply to, and may 1
be raised as a defense by, such person or entity, in addi-2
tion to the remedies specified in section 8. 3
SEC. 7. RULES OF CONSTRUCTION. 4
(a) L
IBERALCONSTRUCTION BY COURTS.—In any 5
action before a court under this Act, the court shall lib-6
erally construe the provisions of this Act to effectuate the 7
purposes of the Act. 8
(b) P
ROTECTION OFLIFE ANDHEALTH.—Nothing 9
in this Act shall be construed to authorize any government 10
official to interfere with, diminish, or negatively affect a 11
person’s ability to obtain or provide abortion services prior 12
to viability or after viability when, in the good-faith med-13
ical judgment of the treating health care provider, continu-14
ation of the pregnancy would pose a risk to the pregnant 15
patient’s life or health. 16
(c) G
OVERNMENTOFFICIALS.—Any person who, by 17
operation of a provision of Federal or State law, is per-18
mitted to implement or enforce a limitation or requirement 19
that violates section 4 or 5 shall be considered a govern-20
ment official for purposes of this Act. 21
SEC. 8. ENFORCEMENT. 22
(a) A
TTORNEYGENERAL.—The Attorney General 23
may commence a civil action on behalf of the United 24
States in any district court of the United States against 25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 15
•S 701 PCS
any State that violates, or against any government official 1
(including a person described in section 7(c)) who imple-2
ments or enforces a limitation or requirement that vio-3
lates, section 4 or 5. The court shall declare unlawful the 4
limitation or requirement if it is determined to be in viola-5
tion of this Act. 6
(b) P
RIVATERIGHT OFACTION.— 7
(1) I
N GENERAL.—Any individual or entity ad-8
versely affected by an alleged violation of this Act, 9
including any person or health care provider, may 10
commence a civil action against any government offi-11
cial (including a person described in section 7(c)) 12
that implements or enforces a limitation or require-13
ment that violates, section 4 or 5. The court shall 14
declare unlawful the limitation or requirement if it 15
is in violation of this Act. 16
(2) H
EALTH CARE PROVIDER .—A health care 17
provider may commence an action for relief on its 18
own behalf, on behalf of the provider’s staff, and on 19
behalf of the provider’s patients who are or may be 20
adversely affected by an alleged violation of this Act. 21
(c) P
RE-ENFORCEMENT CHALLENGES.—A suit under 22
subsection (a) or (b) may be brought to prevent enforce-23
ment or implementation by any government of a State lim-24
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 16
•S 701 PCS
itation or requirement that is inconsistent with section 4 1
or 5. 2
(d) D
ECLARATORY AND EQUITABLERELIEF.—In 3
any action under this section, the court may award appro-4
priate declaratory and equitable relief, including tem-5
porary, preliminary, or permanent injunctive relief. 6
(e) C
OSTS.—In any action under this section, the 7
court shall award costs of litigation, as well as reasonable 8
attorney’s fees, to any prevailing plaintiff. A plaintiff shall 9
not be liable to a defendant for costs or attorney’s fees 10
in any non-frivolous action under this section. 11
(f) J
URISDICTION.—The district courts of the United 12
States shall have jurisdiction over proceedings under this 13
Act and shall exercise the same without regard to whether 14
the party aggrieved shall have exhausted any administra-15
tive or other remedies that may be provided for by law. 16
(g) A
BROGATION OF STATEIMMUNITY.—Neither a 17
State that enforces or maintains, nor a government official 18
(including a person described in section 7(c)) who is per-19
mitted to implement or enforce any limitation or require-20
ment that violates section 4 or 5 shall be immune under 21
the Tenth Amendment to the Constitution of the United 22
States, the Eleventh Amendment to the Constitution of 23
the United States, or any other source of law, from an 24
action in a Federal or State court of competent jurisdic-25
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB 17
•S 701 PCS
tion challenging that limitation or requirement, unless 1
such immunity is required by clearly established Federal 2
law, as determined by the Supreme Court of the United 3
States. 4
SEC. 9. EFFECTIVE DATE. 5
This Act shall take effect upon the date of enactment 6
of this Act. 7
SEC. 10. SEVERABILITY. 8
If any provision of this Act, or the application of such 9
provision to any person, entity, government, or cir-10
cumstance, is held to be unconstitutional, the remainder 11
of this Act, or the application of such provision to all other 12
persons, entities, governments, or circumstances, shall not 13
be affected thereby. 14
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB Calendar No.
26
118
TH
CONGRESS
1
ST
S
ESSION
S. 701 A BILL
To protect a person’s ability to determine whether
to continue or end a pregnancy, and to protect
a health care provider’s ability to provide abor-
tion services.
M
ARCH
9, 2023
Read the second time and placed on the calendar
VerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00018 Fmt 6651 Sfmt 6651 E:\BILLS\S701.PCS S701
pbinns on DSKJLVW7X2PROD with $$_JOB