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. HASSAN, 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 following 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 continue or end a pregnancy, and to protect a health care 

provider’s ability to provide abortion services. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Women’s Health Pro5 tection Act of 2023’’. 

6 SEC. 2. PURPOSE. 

7 The purposes of this Act are as follows: 

8 (1) To permit people to seek and obtain abor9 tion services, and to permit health care providers to 

10 provide abortion services, without harmful or unwar11 ranted limitations or requirements that single out 

12 the provision of abortion services for restrictions 

13 that are more burdensome than those restrictions 

14 imposed on medically comparable procedures, do not 

15 significantly advance reproductive health or the safe16 ty of abortion services, or make abortion services 

17 more difficult to access. 

18 (2) To promote access to abortion services and 

19 thereby protect women’s ability to participate equally 

20 in the economic and social life of the United States. 

21 (3) To protect people’s ability to make decisions 

22 about their bodies, medical care, family, and life’s 

23 course. 

24 (4) To eliminate unwarranted burdens on com25 merce and the right to travel. Abortion bans and reVerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701

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1 strictions invariably affect commerce over which the 

2 United States has jurisdiction. Health care providers 

3 engage in economic and commercial activity when 

4 they provide abortion services. Moreover, there is an 

5 interstate market for abortion services and, in order 

6 to provide such services, health care providers en7 gage in interstate commerce to purchase medicine, 

8 medical equipment, and other necessary goods and 

9 services; to obtain and provide training; and to em10 ploy and obtain commercial services from health care 

11 personnel, many of whom themselves engage in 

12 interstate commerce, including by traveling across 

13 State lines. Congress has the authority to enact this 

14 Act to protect access to abortion services pursuant 

15 to— 

16 (A) its powers under the commerce clause 

17 of section 8 of article I of the Constitution of 

18 the United States; 

19 (B) its powers under section 5 of the Four20 teenth Amendment to the Constitution of the 

21 United States to enforce the provisions of sec22 tion 1 of the Fourteenth Amendment; and 

23 (C) its powers under the necessary and 

24 proper clause of section 8 of Article I of the 

25 Constitution of the United States. 


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1 SEC. 3. DEFINITIONS. 

2 In this Act: 

3 (1) ABORTION SERVICES.—The term ‘‘abortion 

4 services’’ means an abortion and any medical or 

5 non-medical services related to and provided in con6 junction with an abortion (whether or not provided 

7 at the same time or on the same day as the abor8 tion). 

9 (2) GOVERNMENT.—The term ‘‘government’’ 

10 includes each branch, department, agency, instru11 mentality, and official of the United States or a 

12 State. 

13 (3) HEALTH CARE PROVIDER.—The term 

14 ‘‘health care provider’’ means any entity (including 

15 any hospital, clinic, or pharmacy) or individual (in16 cluding any physician, certified nurse-midwife, nurse 

17 practitioner, pharmacist, or physician assistant) 

18 that— 

19 (A) is engaged or seeks to engage in the 

20 delivery of health care services, including abor21 tion services; and 

22 (B) if required by law or regulation to be 

23 licensed or certified to engage in the delivery of 

24 such services— 

25 (i) is so licensed or certified; or 


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1 (ii) would be so licensed or certified 

2 but for their past, present, or potential 

3 provision of abortion services protected by 

4 section 4. 

5 (4) MEDICALLY COMPARABLE PROCEDURES.— 

6 The term ‘‘medically comparable procedures’’ means 

7 medical procedures that are similar in terms of 

8 health and safety risks to the patient, complexity, or 

9 the clinical setting that is indicated. 

10 (5) PREGNANCY.—The term ‘‘pregnancy’’ refers 

11 to the period of the human reproductive process be12 ginning with the implantation of a fertilized egg. 

13 (6) STATE.—The term ‘‘State’’ includes the 

14 District of Columbia, the Commonwealth of Puerto 

15 Rico, and each territory and possession of the 

16 United States, and any subdivision of any of the 

17 foregoing, including any unit of local government, 

18 such as a county, city, town, village, or other general 

19 purpose political subdivision of a State. 

20 (7) VIABILITY.—The term ‘‘viability’’ means 

21 the point in a pregnancy at which, in the good-faith 

22 medical judgment of the treating health care pro23 vider, and based on the particular facts of the case 

24 before the health care provider, there is a reasonable 


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1 likelihood of sustained fetal survival outside the 

2 uterus with or without artificial support. 

3 SEC. 4. PROTECTED ACTIVITIES AND SERVICES. 

4 (a) GENERAL RULES.— 

5 (1) PRE-VIABILITY.—A health care provider has 

6 a right under this Act to provide abortion services, 

7 and a patient has a corresponding right under this 

8 Act to terminate a pregnancy prior to viability with9 out being subject to any of the following limitations 

10 or requirements: 

11 (A) A prohibition on abortion prior to via12 bility, including a prohibition or restriction on 

13 a particular abortion procedure or method, or a 

14 prohibition on providing or obtaining such abor15 tions. 

16 (B) A limitation on a health care pro17 vider’s ability to prescribe or dispense drugs 

18 that could be used for reproductive health pur19 poses based on current evidence-based regimens 

20 or the provider’s good-faith medical judgment, 

21 or a limitation on a patient’s ability to receive 

22 or use such drugs, other than a limitation gen23 erally applicable to the prescription, dispensing, 

24 or distribution of drugs. 


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1 (C) A limitation on a health care provider’s 

2 ability to provide, or a patient’s ability to re3 ceive, abortion services via telemedicine, other 

4 than a limitation generally applicable to the 

5 provision of medically comparable services via 

6 telemedicine. 

7 (D) A limitation or prohibition on a pa8 tient’s ability to receive, or a provider’s ability 

9 to provide, abortion services in a State based on 

10 the State of residency of the patient, or a prohi11 bition or limitation on the ability of any indi12 vidual to assist or support a patient seeking 

13 abortion. 

14 (E) A requirement that a health care pro15 vider perform specific tests or medical proce16 dures in connection with the provision of abor17 tion services (including prior to or subsequent 

18 to the abortion), unless generally required for 

19 the provision of medically comparable proce20 dures. 

21 (F) A requirement that a health care pro22 vider offer or provide a patient seeking abortion 

23 services medically inaccurate information. 

24 (G) A limitation or requirement concerning 

25 the physical plant, equipment, staffing, or hosVerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701

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1 pital transfer arrangements of facilities where 

2 abortion services are provided, or the creden3 tials or hospital privileges or status of personnel 

4 at such facilities, that is not imposed on facili5 ties or the personnel of facilities where medi6 cally comparable procedures are performed. 

7 (H) A requirement that, prior to obtaining 

8 an abortion, a patient make one or more medi9 cally unnecessary in-person visits to the pro10 vider of abortion services or to any individual or 

11 entity that does not provide abortion services. 

12 (I) A limitation on a health care provider’s 

13 ability to provide immediate abortion services 

14 when that health care provider believes, based 

15 on the good-faith medical judgment of the pro16 vider, that delay would pose a risk to the pa17 tient’s life or health. 

18 (J) A requirement that a patient seeking 

19 abortion services at any point or points in time 

20 prior to viability disclose the patient’s reason or 

21 reasons for seeking abortion services, or a limi22 tation on providing or obtaining abortion serv23 ices at any point or points in time prior to via24 bility based on any actual, perceived, or poten25 tial reason or reasons of the patient for obtainVerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701

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1 ing abortion services, regardless of whether the 

2 limitation is based on a health care provider’s 

3 actual or constructive knowledge of such reason 

4 or reasons. 

5 (2) POST-VIABILITY.— 

6 (A) IN GENERAL.—A health care provider 

7 has a right under this Act to provide abortion 

8 services and a patient has a corresponding right 

9 under this Act to terminate a pregnancy after 

10 viability when, in the good-faith medical judge11 ment of the treating health care provider, it is 

12 necessary to protect the life or health of the pa13 tient. This subparagraph shall not otherwise 

14 apply after viability. 

15 (B) ADDITIONAL CIRCUMSTANCES.—A 

16 State may provide additional circumstances 

17 under which post viability abortions are per18 mitted under this paragraph. 

19 (C) LIMITATION.—In the case where a ter20 mination of a pregnancy after viability, in the 

21 good-faith medical judgement of the treating 

22 health care provider, is necessary to protect the 

23 life or health of the patient, a State shall not 

24 impose any of the limitations or requirements 

25 described in paragraph (1) 


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1 (b) OTHER LIMITATIONS OR REQUIREMENTS.—The 

2 rights described in subsection (a) shall not be limited or 

3 otherwise infringed through any other limitation or re4 quirement that— 

5 (1) expressly, effectively, implicitly, or as imple6 mented, singles out abortion, the provision of abor7 tion services, individuals who seek abortion services 

8 or who provide assistance and support to those seek9 ing abortion services, health care providers who pro10 vide abortion services, or facilities in which abortion 

11 services are provided; and 

12 (2) impedes access to abortion services. 

13 (c) FACTORS FOR CONSIDERATION.—A court may 

14 consider the following factors, among others, in deter15 mining whether a limitation or requirement impedes ac16 cess to abortion services for purposes of subsection (b)(2): 

17 (1) Whether the limitation or requirement, in a 

18 provider’s good-faith medical judgment, interferes 

19 with a health care provider’s ability to provide care 

20 and render services, or poses a risk to the patient’s 

21 health or safety. 

22 (2) Whether the limitation or requirement is 

23 reasonably likely to delay or deter a patient in ac24 cessing abortion services. 


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1 (3) Whether the limitation or requirement is 

2 reasonably likely to directly or indirectly increase the 

3 cost of providing abortion services or the cost for ob4 taining abortion services such as costs associated 

5 with travel, childcare, or time off work. 

6 (4) Whether the limitation or requirement is 

7 reasonably likely to have the effect of necessitating 

8 patient travel that would not otherwise have been re9 quired, including by making it necessary for a pa10 tient to travel out of State to obtain services. 

11 (5) Whether the limitation or requirement is 

12 reasonably likely to result in a decrease in the avail13 ability of abortion services in a given State or geo14 graphic region. 

15 (6) Whether the limitation or requirement im16 poses penalties that are not imposed on other health 

17 care providers for comparable conduct or failure to 

18 act, or that are more severe than penalties imposed 

19 on other health care providers for comparable con20 duct or failure to act. 

21 (7) The cumulative impact of the limitation or 

22 requirement combined with other limitations or re23 quirements. 

24 (d) EXCEPTION.—To defend against a claim that a 

25 limitation or requirement violates a health care provider’s 


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1 or patient’s rights under subsection (b) a party must es2 tablish, by clear and convincing evidence, that the limita3 tion or requirement is essential to significantly advance 

4 the safety of abortion services or the health of the patients 

5 and that the safety or health objective cannot be accom6 plished by a different means that does not interfere with 

7 the right protected under subsection (b)). 

8 SEC. 5. PROTECTION OF THE RIGHT TO TRAVEL. 

9 A person has a fundamental right under the Con10 stitution of the United States and this Act to travel to 

11 a State other than the person’s State of residence, includ12 ing to obtain reproductive health services such as prenatal, 

13 childbirth, fertility, and abortion services, and a person 

14 has a right under this Act to assist another person to ob15 tain such services or otherwise exercise the right described 

16 in this section. 

17 SEC. 6. APPLICABILITY AND PREEMPTION. 

18 (a) IN GENERAL.— 

19 (1) SUPERSEDING INCONSISTENT LAWS.—Ex20 cept as provided under subsection (b), this Act shall 

21 supersede any inconsistent Federal or State law, and 

22 the implementation of such law, whether statutory, 

23 common law, or otherwise, and whether adopted 

24 prior to or after the date of enactment of this Act. 

25 A Federal or State government official shall not adVerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701

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1 minister, implement, or enforce any law, rule, regu2 lation, standard, or other provision having the force 

3 and effect of law that conflicts with any provision of 

4 this Act, notwithstanding any other provision of 

5 Federal law, including the Religious Freedom Res6 toration Act of 1993 (42 U.S.C. 2000bb et seq.). 

7 (2) LAWS AFTER DATE OF ENACTMENT.—Fed8 eral law enacted after the date of the enactment of 

9 this Act shall be subject to this Act unless such law 

10 explicitly excludes such application by reference to 

11 this Act. 

12 (b) LIMITATIONS.—The provisions of this Act shall 

13 not supersede or apply to— 

14 (1) laws regulating physical access to clinic en15 trances; 

16 (2) laws regulating insurance or medical assist17 ance coverage of abortion services; 

18 (3) the procedure described in section 

19 1531(b)(1) of title 18, United States Code; or 

20 (4) generally applicable State contract law. 

21 (c) PREEMPTION DEFENSE.—In any legal or admin22 istrative action against a person or entity who has exer23 cised or attempted to exercise a right protected by section 

24 4 or section 5 or against any person or entity who has 

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1 cising such right, this Act shall also apply to, and may 

2 be raised as a defense by, such person or entity, in addi3 tion to the remedies specified in section 8. 

4 SEC. 7. RULES OF CONSTRUCTION. 

5 (a) LIBERAL CONSTRUCTION BY COURTS.—In any 

6 action before a court under this Act, the court shall lib7 erally construe the provisions of this Act to effectuate the 

8 purposes of the Act. 

9 (b) PROTECTION OF LIFE AND HEALTH.—Nothing 

10 in this Act shall be construed to authorize any government 

11 official to interfere with, diminish, or negatively affect a 

12 person’s ability to obtain or provide abortion services prior 

13 to viability or after viability when, in the good-faith med14 ical judgment of the treating health care provider, continu15 ation of the pregnancy would pose a risk to the pregnant 

16 patient’s life or health. 

17 (c) GOVERNMENT OFFICIALS.—Any person who, by 

18 operation of a provision of Federal or State law, is per19 mitted to implement or enforce a limitation or requirement 

20 that violates section 4 or 5 shall be considered a govern21 ment official for purposes of this Act. 

22 SEC. 8. ENFORCEMENT. 

23 (a) ATTORNEY GENERAL.—The Attorney General 

24 may commence a civil action on behalf of the United 

25 States in any district court of the United States against 


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1 any State that violates, or against any government official 

2 (including a person described in section 7(c)) who imple3 ments or enforces a limitation or requirement that vio4 lates, section 4 or 5. The court shall declare unlawful the 

5 limitation or requirement if it is determined to be in viola6 tion of this Act. 

7 (b) PRIVATE RIGHT OF ACTION.— 

8 (1) IN GENERAL.—Any individual or entity ad9 versely affected by an alleged violation of this Act, 

10 including any person or health care provider, may 

11 commence a civil action against any government offi12 cial (including a person described in section 7(c)) 

13 that implements or enforces a limitation or require14 ment that violates, section 4 or 5. The court shall 

15 declare unlawful the limitation or requirement if it 

16 is in violation of this Act. 

17 (2) HEALTH CARE PROVIDER.—A health care 

18 provider may commence an action for relief on its 

19 own behalf, on behalf of the provider’s staff, and on 

20 behalf of the provider’s patients who are or may be 

21 adversely affected by an alleged violation of this Act. 

22 (c) PRE-ENFORCEMENT CHALLENGES.—A suit under 

23 subsection (a) or (b) may be brought to prevent enforce24 ment or implementation by any government of a State limVerDate Sep 11 2014 23:29 Mar 09, 2023 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S701.PCS S701

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1 itation or requirement that is inconsistent with section 4 

2 or 5. 

3 (d) DECLARATORY AND EQUITABLE RELIEF.—In 

4 any action under this section, the court may award appro5 priate declaratory and equitable relief, including tem6 porary, preliminary, or permanent injunctive relief. 

7 (e) COSTS.—In any action under this section, the 

8 court shall award costs of litigation, as well as reasonable 

9 attorney’s fees, to any prevailing plaintiff. A plaintiff shall 

10 not be liable to a defendant for costs or attorney’s fees 

11 in any non-frivolous action under this section. 

12 (f) JURISDICTION.—The district courts of the United 

13 States shall have jurisdiction over proceedings under this 

14 Act and shall exercise the same without regard to whether 

15 the party aggrieved shall have exhausted any administra16 tive or other remedies that may be provided for by law. 

17 (g) ABROGATION OF STATE IMMUNITY.—Neither a 

18 State that enforces or maintains, nor a government official 

19 (including a person described in section 7(c)) who is per20 mitted to implement or enforce any limitation or require21 ment that violates section 4 or 5 shall be immune under 

22 the Tenth Amendment to the Constitution of the United 

23 States, the Eleventh Amendment to the Constitution of 

24 the United States, or any other source of law, from an 

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1 tion challenging that limitation or requirement, unless 

2 such immunity is required by clearly established Federal 

3 law, as determined by the Supreme Court of the United 

4 States. 

5 SEC. 9. EFFECTIVE DATE. 

6 This Act shall take effect upon the date of enactment 

7 of this Act. 

8 SEC. 10. SEVERABILITY. 

9 If any provision of this Act, or the application of such 

10 provision to any person, entity, government, or cir11 cumstance, is held to be unconstitutional, the remainder 

12 of this Act, or the application of such provision to all other 

13 persons, entities, governments, or circumstances, shall not 

14 be affected thereby. 


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Calendar No. 26 

118TH CONGRESS 

1ST SESSION S. 701 

A BILL 

To protect a person’s ability to determine whether 

tion services. a health care provider’s ability to provide aborto continue or end a pregnancy, and to protect 

MARCH 9, 2023 

Read the second time and placed on the calendar 


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