II

105TH CONGRESS

1ST SESSION S. 1208

To protect women’s reproductive health and constitutional right to choice,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 23, 1997

Mrs. BOXER (for herself and Mrs. MURRAY) introduced the following bill;

which was read twice and referred to the Committee on Labor and

Human Resources

A BILL

To protect women’s reproductive health and constitutional

right to choice, and for other purposes.

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 ‘‘Family Planning and

5 Choice Protection Act of 1997’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) reproductive rights are central to the ability

9 of women to exercise full enjoyment of rights se10 cured to women by Federal and State law;
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1 (2) abortion has been a legal and constitu2 tionally protected medical procedure throughout the

3 United States since 1973 and has become part of

4 mainstream medical practice as is evidenced by the

5 positions of medical institutions including the Amer6 ican Medical Association, the American College of

7 Obstetricians and Gynecologists, the American Medi8 cal Women’s Association, the American Nurses As9 sociation, and the American Public Health Associa10 tion;

11 (3) the availability of abortion services is dimin12 ishing throughout the United States, as evidenced

13 by—

14 (A) the fact that 84 percent of counties in

15 the United States have no abortion provider;

16 and

17 (B) the fact that, between 1982 and 1992,

18 the number of abortion providers decreased in

19 45 States; and

20 (4)(A) the Department of Health and Human

21 Services and the Institute of Medicine of the Na22 tional Academy of Sciences have contributed to the

23 development of a report entitled ‘‘Healthy People

24 2000’’, which urges that the rate of unintended
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1 pregnancy in the United States be reduced by nearly

2 50 percent by the year 2000;

3 (B) nearly 60 percent, or approximately

4 3,100,000, of all pregnancies in the United States

5 each year are unintended, resulting in 1,500,000

6 abortions in the United States each year; and

7 (C) the provision of family planning services,

8 including emergency contraception, is a cost-effective

9 way of reducing the number of unintended preg10 nancies and abortions in the United States; and

11 (5) at a minimum, Congress must enact legisla12 tion establishing or retaining the following policies to

13 preserve the choice and reproductive health of

14 women:

15 (A) Authorization of family planning pro16 grams.

17 (B) The prohibition of any gag rule on in18 formation pertaining to reproductive medical

19 services.

20 (C) The promotion of equitable treatment

21 and coverage of prescription contraception

22 drugs and devices in the provision of health in23 surance.

24 (D) The provision of funding for emer25 gency contraceptive education.
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1 (E) The establishment of breast cancer,

2 cervical cancer, and chlamydia screening pro3 grams in all 50 States.

4 (F) Full implementation of contraceptive

5 and infertility research programs.

6 (G) Funding through the medicaid pro7 gram under title XIX of the Social Security Act

8 (42 U.S.C. 1396 et seq.) for abortion services.

9 (H) Protection of women from clinic vio10 lence.

11 (I) Final approval of the drug called

12 Mifepristone or RU–486.

13 (J) The maintenance of a fundamental

14 right to choose, as stated in the Supreme Court

15 decision in Roe v. Wade, 410 U.S. 113 (1973).

16 (K) The establishment of the right of the

17 District of Columbia to access locally raised

18 revenue to provide abortion services to low-in19 come women.

20 (L) The promotion of fairness in insur21 ance.

22 (M) The establishment of the ability of

23 military personnel overseas to obtain abortion

24 services.
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1 TITLE I—PREVENTION

2 Subtitle A—Family Planning

3 SEC. 101. FAMILY PLANNING AMENDMENTS.

4 Section 1001(d) of the Public Health Service Act (42

5 U.S.C. 300(d)) is amended to read as follows:

6 ‘‘(d) For the purpose of making grants and entering

7 into contracts under this section, there are authorized to

8 be appropriated $275,000,000 for fiscal year 1999 and

9 such sums as may be necessary for each of fiscal years

10 2000 through 2003.’’.

11 SEC. 102. FREEDOM OF FULL DISCLOSURE.

12 Title XI of the Civil Rights Act of 1964 (42 U.S.C.

13 2000h et seq.) is amended by adding at the end the follow14 ing:

15 ‘‘SEC. 1107. INFORMATION ABOUT AVAILABILITY OF REPRO16 DUCTIVE HEALTH CARE SERVICES.

17 ‘‘(a) DEFINITION.—As used in this section, the term

18 ‘governmental authority’ means any authority of the Unit19 ed States.

20 ‘‘(b) GENERAL AUTHORITY.—Notwithstanding any

21 other provision of law, no governmental authority shall,

22 in or through any program or activity that is administered

23 or assisted by such authority and that provides health care

24 services or information, limit the right of any person to

25 provide, or the right of any person to receive, nonfraudu-
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1 lent information about the availability of reproductive

2 health care services, including family planning, prenatal

3 care, adoption, and abortion services.’’.

4 Subtitle B—Prescription Equity

5 and Contraceptive Coverage

6 SEC. 111. FINDINGS.

7 Congress finds that—

8 (1) each year, approximately 3,100,000 preg9 nancies, or nearly 60 percent of all pregnancies, in

10 this country are unintended;

11 (2) contraceptive services are part of basic

12 health care, allowing families to both adequately

13 space desired pregnancies and avoid unintended

14 pregnancy;

15 (3) studies show that contraceptives are cost-ef16 fective: for every $1 of public funds invested in fam17 ily planning, $4 to $14 of public funds is saved in

18 pregnancy and health care-related costs;

19 (4) by reducing rates of unintended pregnancy,

20 contraceptives help reduce the need for abortion;

21 (5) unintended pregnancies lead to higher rates

22 of infant mortality, low-birth weight, and maternal

23 morbidity, and threaten the economic viability of

24 families;
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1 (6) the National Commission to Prevent Infant

2 Mortality determined that ‘‘infant mortality could be

3 reduced by 10 percent if all women not desiring

4 pregnancy used contraception’’;

5 (7) most women in the United States, including

6 two-thirds of women of childbearing age, rely on

7 some form of private employment-related insurance

8 (through either their own employer or a family mem9 ber’s employer) to defray their medical expenses;

10 (8) the vast majority of private insurers cover

11 prescription drugs, but many exclude coverage for

12 prescription contraceptives;

13 (9) private insurance provides extremely limited

14 coverage of contraceptives: half of traditional indem15 nity plans and preferred provider organizations, 20

16 percent of point-of-service networks, and 7 percent

17 of health maintenance organizations cover no contra18 ceptive methods other than sterilization;

19 (10) women of reproductive age spend 68 per20 cent more than men on out-of-pocket health care

21 costs, with contraceptives and reproductive health

22 care services accounting for much of the difference;

23 (11) the lack of contraceptive coverage in health

24 insurance places many effective forms of contracep-
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1 tives beyond the financial reach of many women,

2 leading to unintended pregnancies; and

3 (12) the Institute of Medicine Committee on

4 Unintended Pregnancy recently recommended that

5 ‘‘financial barriers to contraception be reduced by

6 increasing the proportion of all health insurance

7 policies that cover contraceptive services and sup8 plies’’.

9 SEC. 112. AMENDMENTS TO THE EMPLOYEE RETIREMENT

10 INCOME SECURITY ACT OF 1974.

11 (a) IN GENERAL.—Subpart B of part 7 of subtitle

12 B of title I of the Employee Retirement Income Security

13 Act of 1974 (as added by section 603(a) of the Newborns’

14 and Mothers’ Health Protection Act of 1996 and amended

15 by section 702(a) of the Mental Health Parity Act of

16 1996) is further amended by adding at the end the follow17 ing new section:

18 ‘‘SEC. 713. STANDARDS RELATING TO BENEFITS FOR CON19 TRACEPTIVES.

20 ‘‘(a) REQUIREMENTS FOR COVERAGE.—A group

21 health plan, and a health insurance issuer providing health

22 insurance coverage in connection with a group health plan,

23 may not—

24 ‘‘(1) exclude or restrict benefits for prescription

25 contraceptive drugs or devices approved by the Food
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1 and Drug Administration, or generic equivalents ap2 proved as substitutable by the Food and Drug Ad3 ministration, if such plan provides benefits for other

4 outpatient prescription drugs or devices; or

5 ‘‘(2) exclude or restrict benefits for outpatient

6 contraceptive services if such plan provides benefits

7 for other outpatient services provided by a health

8 care professional (referred to in this section as ‘out9 patient health care services’).

10 ‘‘(b) PROHIBITIONS.—A group health plan, and a

11 health insurance issuer providing health insurance cov12 erage in connection with a group health plan, may not—

13 ‘‘(1) deny to an individual eligibility, or contin14 ued eligibility, to enroll or to renew coverage under

15 the terms of the plan because of the individual’s or

16 enrollee’s use or potential use of items or services

17 that are covered in accordance with the requirements

18 of this section;

19 ‘‘(2) provide monetary payments or rebates to

20 a covered individual to encourage such individual to

21 accept less than the minimum protections available

22 under this section;

23 ‘‘(3) penalize or otherwise reduce or limit the

24 reimbursement of a health care professional because

25 such professional prescribed contraceptive drugs or
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1 devices, or provided contraceptive services, described

2 in subsection (a), in accordance with this section; or

3 ‘‘(4) provide incentives (monetary or otherwise)

4 to a health care professional to induce such profes5 sional to withhold from a covered individual contra6 ceptive drugs or devices, or contraceptive services,

7 described in subsection (a).

8 ‘‘(c) RULES OF CONSTRUCTION.—

9 ‘‘(1) IN GENERAL.—Nothing in this section

10 shall be construed—

11 ‘‘(A) as preventing a group health plan

12 and a health insurance issuer providing health

13 insurance coverage in connection with a group

14 health plan from imposing deductibles, coinsur15 ance, or other cost-sharing or limitations in re16 lation to—

17 ‘‘(i) benefits for contraceptive drugs

18 under the plan, except that such a deduct19 ible, coinsurance, or other cost-sharing or

20 limitation for any such drug may not be

21 greater than such a deductible, coinsur22 ance, or cost-sharing or limitation for any

23 outpatient prescription drug otherwise cov24 ered under the plan;
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1 ‘‘(ii) benefits for contraceptive devices

2 under the plan, except that such a deduct3 ible, coinsurance, or other cost-sharing or

4 limitation for any such device may not be

5 greater than such a deductible, coinsur6 ance, or cost-sharing or limitation for any

7 outpatient prescription device otherwise

8 covered under the plan; and

9 ‘‘(iii) benefits for outpatient contra10 ceptive services under the plan, except that

11 such a deductible, coinsurance, or other

12 cost-sharing or limitation for any such

13 service may not be greater than such a de14 ductible, coinsurance, or cost-sharing or

15 limitation for any outpatient health care

16 service otherwise covered under the plan;

17 and

18 ‘‘(B) as requiring a group health plan and

19 a health insurance issuer providing health in20 surance coverage in connection with a group

21 health plan to cover experimental or investiga22 tional contraceptive drugs or devices, or experi23 mental or investigational contraceptive services,

24 described in subsection (a), except to the extent

25 that the plan or issuer provides coverage for
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1 other experimental or investigational outpatient

2 prescription drugs or devices, or experimental

3 or investigational outpatient health care serv4 ices.

5 ‘‘(2) LIMITATIONS.—As used in paragraph (1),

6 the term ‘limitation’ includes—

7 ‘‘(A) in the case of a contraceptive drug or

8 device, restricting the type of health care pro9 fessionals that may prescribe such drugs or de10 vices, utilization review provisions, and limits on

11 the volume of prescription drugs or devices that

12 may be obtained on the basis of a single con13 sultation with a professional; or

14 ‘‘(B) in the case of an outpatient contra15 ceptive service, restricting the type of health

16 care professionals that may provide such serv17 ices, utilization review provisions, requirements

18 relating to second opinions prior to the coverage

19 of such services, and requirements relating to

20 preauthorizations prior to the coverage of such

21 services.

22 ‘‘(d) NOTICE UNDER GROUP HEALTH PLAN.—The

23 imposition of the requirements of this section shall be

24 treated as a material modification in the terms of the plan

25 described in section 102(a)(1), for purposes of assuring
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1 notice of such requirements under the plan, except that

2 the summary description required to be provided under the

3 last sentence of section 104(b)(1) with respect to such

4 modification shall be provided by not later than 60 days

5 after the first day of the first plan year in which such

6 requirements apply.

7 ‘‘(e) PREEMPTION.—Nothing in this section shall be

8 construed to preempt any provision of State law to the

9 extent that such State law establishes, implements, or con10 tinues in effect any standard or requirement that provides

11 protections for enrollees that are greater than the protec12 tions provided under this section.

13 ‘‘(f) DEFINITION.—In this section, the term ‘out14 patient contraceptive services’ means consultations, exami15 nations, procedures, and medical services, provided on an

16 outpatient basis and related to the use of contraceptive

17 methods (including natural family planning) to prevent an

18 unintended pregnancy.’’.

19 (b) CLERICAL AMENDMENT.—The table of contents

20 in section 1 of such Act, as amended by section 603 of

21 the Newborns’ and Mothers’ Health Protection Act of

22 1996 and section 702 of the Mental Health Parity Act

23 of 1996, is amended by inserting after the item relating

24 to section 712 the following new item:

‘‘Sec. 713. Standards relating to benefits for contraceptives.’’.
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1 (c) EFFECTIVE DATE.—The amendments made by

2 this section shall apply with respect to plan years begin3 ning on or after January 1, 1998.

4 SEC. 113. AMENDMENTS TO THE PUBLIC HEALTH SERVICE

5 ACT RELATING TO THE GROUP MARKET.

6 (a) IN GENERAL.—Subpart 2 of part A of title

7 XXVII of the Public Health Service Act (as added by sec8 tion 604(a) of the Newborns’ and Mothers’ Health Protec9 tion Act of 1996 and amended by section 703(a) of the

10 Mental Health Parity Act of 1996) is further amended

11 by adding at the end the following new section:

12 ‘‘SEC. 2706. STANDARDS RELATING TO BENEFITS FOR CON13 TRACEPTIVES.

14 ‘‘(a) REQUIREMENTS FOR COVERAGE.—A group

15 health plan, and a health insurance issuer providing health

16 insurance coverage in connection with a group health plan,

17 may not—

18 ‘‘(1) exclude or restrict benefits for prescription

19 contraceptive drugs or devices approved by the Food

20 and Drug Administration, or generic equivalents ap21 proved as substitutable by the Food and Drug Ad22 ministration, if such plan provides benefits for other

23 outpatient prescription drugs or devices; or

24 ‘‘(2) exclude or restrict benefits for outpatient

25 contraceptive services if such plan provides benefits
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1 for other outpatient services provided by a health

2 care professional (referred to in this section as ‘out3 patient health care services’).

4 ‘‘(b) PROHIBITIONS.—A group health plan, and a

5 health insurance issuer providing health insurance cov6 erage in connection with a group health plan, may not—

7 ‘‘(1) deny to an individual eligibility, or contin8 ued eligibility, to enroll or to renew coverage under

9 the terms of the plan because of the individual’s or

10 enrollee’s use or potential use of items or services

11 that are covered in accordance with the requirements

12 of this section;

13 ‘‘(2) provide monetary payments or rebates to

14 a covered individual to encourage such individual to

15 accept less than the minimum protections available

16 under this section;

17 ‘‘(3) penalize or otherwise reduce or limit the

18 reimbursement of a health care professional because

19 such professional prescribed contraceptive drugs or

20 devices, or provided contraceptive services, described

21 in subsection (a), in accordance with this section; or

22 ‘‘(4) provide incentives (monetary or otherwise)

23 to a health care professional to induce such profes24 sional to withhold from a covered individual contra-
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1 ceptive drugs or devices, or contraceptive services,

2 described in subsection (a).

3 ‘‘(c) RULES OF CONSTRUCTION.—

4 ‘‘(1) IN GENERAL.—Nothing in this section

5 shall be construed—

6 ‘‘(A) as preventing a group health plan

7 and a health insurance issuer providing health

8 insurance coverage in connection with a group

9 health plan from imposing deductibles, coinsur10 ance, or other cost-sharing or limitations in re11 lation to—

12 ‘‘(i) benefits for contraceptive drugs

13 under the plan, except that such a deduct14 ible, coinsurance, or other cost-sharing or

15 limitation for any such drug may not be

16 greater than such a deductible, coinsur17 ance, or cost-sharing or limitation for any

18 outpatient prescription drug otherwise cov19 ered under the plan;

20 ‘‘(ii) benefits for contraceptive devices

21 under the plan, except that such a deduct22 ible, coinsurance, or other cost-sharing or

23 limitation for any such device may not be

24 greater than such a deductible, coinsur25 ance, or cost-sharing or limitation for any
17

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1 outpatient prescription device otherwise

2 covered under the plan; and

3 ‘‘(iii) benefits for outpatient contra4 ceptive services under the plan, except that

5 such a deductible, coinsurance, or other

6 cost-sharing or limitation for any such

7 service may not be greater than such a de8 ductible, coinsurance, or cost-sharing or

9 limitation for any outpatient health care

10 service otherwise covered under the plan;

11 and

12 ‘‘(B) as requiring a group health plan and

13 a health insurance issuer providing health in14 surance coverage in connection with a group

15 health plan to cover experimental or investiga16 tional contraceptive drugs or devices, or experi17 mental or investigational contraceptive services,

18 described in subsection (a), except to the extent

19 that the plan or issuer provides coverage for

20 other experimental or investigational outpatient

21 prescription drugs or devices, or experimental

22 or investigational outpatient health care serv23 ices.

24 ‘‘(2) LIMITATIONS.—As used in paragraph (1),

25 the term ‘limitation’ includes—
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1 ‘‘(A) in the case of a contraceptive drug or

2 device, restricting the type of health care pro3 fessionals that may prescribe such drugs or de4 vices, utilization review provisions, and limits on

5 the volume of prescription drugs or devices that

6 may be obtained on the basis of a single con7 sultation with a professional; or

8 ‘‘(B) in the case of an outpatient contra9 ceptive service, restricting the type of health

10 care professionals that may provide such serv11 ices, utilization review provisions, requirements

12 relating to second opinions prior to the coverage

13 of such services, and requirements relating to

14 preauthorizations prior to the coverage of such

15 services.

16 ‘‘(d) NOTICE.—A group health plan under this part

17 shall comply with the notice requirement under section

18 713(d) of the Employee Retirement Income Security Act

19 of 1974 with respect to the requirements of this section

20 as if such section applied to such plan.

21 ‘‘(e) PREEMPTION.—Nothing in this section shall be

22 construed to preempt any provision of State law to the

23 extent that such State law establishes, implements, or con24 tinues in effect any standard or requirement that provides
19

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1 protections for enrollees that are greater than the protec2 tions provided under this section.

3 ‘‘(f) DEFINITION.—In this section, the term ‘out4 patient contraceptive services’ means consultations, exami5 nations, procedures, and medical services, provided on an

6 outpatient basis and related to the use of contraceptive

7 methods (including natural family planning) to prevent an

8 unintended pregnancy.’’.

9 (b) EFFECTIVE DATE.—The amendments made by

10 this section shall apply with respect to group health plans

11 for plan years beginning on or after January 1, 1998.

12 SEC. 114. AMENDMENT TO THE PUBLIC HEALTH SERVICE

13 ACT RELATING TO THE INDIVIDUAL MARKET.

14 (a) IN GENERAL.—Subpart 3 of part B of title

15 XXVII of the Public Health Service Act (as added by sec16 tion 605(a) of the Newborn’s and Mother’s Health Protec17 tion Act of 1996) is amended by adding at the end the

18 following new section:

19 ‘‘SEC. 2752. STANDARDS RELATING TO BENEFITS FOR CON20 TRACEPTIVES.

21 ‘‘The provisions of section 2706 shall apply to health

22 insurance coverage offered by a health insurance issuer

23 in the individual market in the same manner as they apply

24 to health insurance coverage offered by a health insurance
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1 issuer in connection with a group health plan in the small

2 or large group market.’’.

3 (b) EFFECTIVE DATE.—The amendment made by

4 this section shall apply with respect to health insurance

5 coverage offered, sold, issued, renewed, in effect, or oper6 ated in the individual market on or after January 1, 1998.

7 Subtitle C—Emergency

8 Contraceptives

9 SEC. 121. EMERGENCY CONTRACEPTIVE EDUCATION.

10 (a) DEFINITION.—In this section:

11 (1) EMERGENCY CONTRACEPTIVE.—The term

12 ‘‘emergency contraceptive’’ means a drug or device

13 (as the terms are defined in section 201 of the Fed14 eral Food, Drug, and Cosmetic Act (21 U.S.C. 321))

15 that is designed—

16 (A) to be used after sexual relations; and

17 (B) to prevent pregnancy, by preventing

18 ovulation, fertilization of an egg, or implanta19 tion of an egg in a uterus.

20 (2) HEALTH CARE PROVIDER.—The term

21 ‘‘health care provider’’ means anyone licensed or cer22 tified under State law to provide health care services

23 who is operating within the scope of such license.

24 (3) INSTITUTION OF HIGHER EDUCATION.—The

25 term ‘‘institution of higher education’’ has the
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1 meaning given the term in section 1201(a) of the

2 Higher Education Act of 1965 (20 U.S.C. 1141(a)).

3 (b) EMERGENCY CONTRACEPTIVE PUBLIC EDU4 CATION PROGRAM.—

5 (1) IN GENERAL.—The Secretary of Health and

6 Human Services, acting through the Director of the

7 Centers for Disease Control, shall develop and dis8 seminate to the public information on emergency

9 contraceptives.

10 (2) DEVELOPMENT AND DISSEMINATION.—The

11 Secretary may develop and disseminate the informa12 tion directly or through arrangements with nonprofit

13 organizations, consumer groups, institutions of high14 er education, Federal, State, or local agencies, and

15 clinics.

16 (3) INFORMATION.—The information shall in17 clude, at a minimum, information describing emer18 gency contraceptives, and explaining the use, effects,

19 efficacy, and availability of the contraceptives.

20 (c) EMERGENCY CONTRACEPTIVE INFORMATION

21 PROGRAM FOR HEALTH CARE PROVIDERS.—

22 (1) IN GENERAL.—The Secretary of Health and

23 Human Services, acting through the Administrator

24 of the Health Resources and Services Administra-
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1 tion, shall develop and disseminate to health care

2 providers information on emergency contraceptives.

3 (2) INFORMATION.—The information shall in4 clude, at a minimum—

5 (A) information describing the use, effects,

6 and efficacy and availability of the contracep7 tives;

8 (B) a recommendation from the Secretary

9 regarding the use of the contraceptives in ap10 propriate cases; and

11 (C) information explaining how to obtain

12 copies of the information developed under sub13 section (b), for distribution to the patients of

14 the providers.

15 (d) AUTHORIZATION OF APPROPRIATIONS.—There is

16 authorized to be appropriated to carry out this section

17 $5,000,000 for the period consisting of fiscal years 1999

18 through 2001.

19 TITLE II—RESEARCH

20 SEC. 201. PREVENTIVE HEALTH MEASURES REGARDING

21 BREAST AND CERVICAL CANCER AND

22 CHLAMYDIA.

23 It is the sense of Congress that the programs of

24 grants under section 318 and title XV of the Public

25 Health Service Act (42 U.S.C. 247c and 300k et seq.)
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1 should receive a level of funding that is adequate for all

2 States, or entities in all States, as appropriate, to receive

3 grants under such section and title.

4 SEC. 202. PROGRAMS REGARDING CONTRACEPTION AND

5 INFERTILITY.

6 (a) RESEARCH CENTERS.—It is the sense of Con7 gress that the program assisting research centers under

8 section 452A of the Public Health Service Act (42 U.S.C.

9 285g–5) should receive a level of funding that is adequate

10 for a reasonable number of research centers to be operated

11 under the program.

12 (b) LOAN REPAYMENT PROGRAM REGARDING CON13 DUCT OF RESEARCH.—It is the sense of Congress that

14 the program of loan-repayment contracts under section

15 487B of the Public Health Service Act (42 U.S.C 288–

16 2) should receive a level of funding that is adequate for

17 a reasonable number of individuals to conduct research

18 under the program.

19 TITLE III—CHOICE PROTECTION

20 SEC. 301. FUNDING FOR ABORTION SERVICES.

21 It is the sense of Congress that Federal and State

22 governments should provide funding for abortion services

23 to women eligible for assistance through the medicaid pro24 gram carried out under title XIX of the Social Security
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1 Act (42 U.S.C. 1396 et seq.), as such services are essential

2 to the health and well-being of women.

3 SEC. 302. CLINIC VIOLENCE.

4 It is the sense of Congress that—

5 (1) Federal resources are necessary to ensure

6 that women have safe access to reproductive health

7 facilities and that health professionals can deliver

8 services in a secure environment free from violence

9 and threats of force; and

10 (2) it is necessary and appropriate to use Fed11 eral resources to combat the nationwide campaign of

12 violence and harassment against reproductive health

13 centers.

14 SEC. 303. APPROVAL OF RU–486.

15 The Secretary of Health and Human Services shall—

16 (1) ensure that a decision by the Food and

17 Drug Administration to approve the drug called

18 Mifepristone or RU–486 shall be made only on the

19 basis provided in law; and

20 (2) assess initiatives by which the Department

21 of Health and Human Services can promote the

22 testing, licensing, and manufacturing in the United

23 States of the drug or other antiprogestins.

24 SEC. 304. FREEDOM OF CHOICE.

25 (a) FINDINGS.—Congress finds the following:
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1 (1) The 1973 Supreme Court decision in Roe v.

2 Wade, 410 U.S. 113 (1973) established constitu3 tionally based limits on the power of States to re4 strict the right of a woman to choose to terminate

5 a pregnancy. Under the strict scrutiny standard

6 enunciated in the Roe v. Wade decision, States were

7 required to demonstrate that laws restricting the

8 right of a woman to choose to terminate a pregnancy

9 were the least restrictive means available to achieve

10 a compelling State interest. Since 1989, the Su11 preme Court has no longer applied the strict scru12 tiny standard in reviewing challenges to the constitu13 tionality of State laws restricting such rights.

14 (2) As a result of the recent modification by the

15 Supreme Court of the strict scrutiny standard enun16 ciated in the Roe v. Wade decision, certain States

17 have restricted the right of women to choose to ter18 minate a pregnancy or to utilize some forms of con19 traception, and the restrictions operate cumulatively

20 to—

21 (A)(i) increase the number of illegal or

22 medically less safe abortions, often resulting in

23 physical impairment, loss of reproductive capac24 ity, or death to the women involved;
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1 (ii) burden interstate and international

2 commerce by forcing women to travel from

3 States in which legal barriers render contracep4 tion or abortion unavailable or unsafe to other

5 States or foreign nations;

6 (iii) interfere with freedom of travel be7 tween and among the various States;

8 (iv) burden the medical and economic re9 sources of States that continue to provide

10 women with access to safe and legal abortion;

11 and

12 (v) interfere with the ability of medical

13 professionals to provide health services;

14 (B) obstruct access to and use of contra15 ceptive and other medical techniques that are

16 part of interstate and international commerce;

17 (C) discriminate between women who are

18 able to afford interstate and international travel

19 and women who are not, a disproportionate

20 number of whom belong to racial or ethnic mi21 norities; and

22 (D) infringe on the ability of women to ex23 ercise full enjoyment of rights secured to the

24 women by Federal and State law, both statu25 tory and constitutional.
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1 (3) Although Congress may not by legislation

2 create constitutional rights, Congress may, where

3 authorized by a constitutional provision enumerating

4 the powers of Congress and not prohibited by a con5 stitutional provision, enact legislation to create and

6 secure statutory rights in areas of legitimate na7 tional concern.

8 (4) Congress has the affirmative power under

9 section 8 of article I of the Constitution and under

10 section 5 of the 14th amendment to the Constitution

11 to enact legislation to prohibit State interference

12 with interstate commerce, liberty, or equal protection

13 of the laws.

14 (b) PURPOSE.—The purpose of this section is to es15 tablish, as a statutory matter, limitations on the power

16 of a State to restrict the freedom of a woman to terminate

17 a pregnancy in order to achieve the same limitations as

18 were provided, as a constitutional matter, under the strict

19 scrutiny standard of review enunciated in the Roe v. Wade

20 decision and applied in subsequent cases from 1973

21 through 1988.

22 (c) DEFINITION.—As used in this section, the term

23 ‘‘State’’ includes the District of Columbia, the Common24 wealth of Puerto Rico, and each other territory or posses25 sion of the United States.
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•S 1208 IS

1 (d) GENERAL AUTHORITY.—A State—

2 (1) may not restrict the freedom of a woman to

3 choose whether or not to terminate a pregnancy be4 fore fetal viability;

5 (2) may restrict the freedom of a woman to

6 choose whether or not to terminate a pregnancy

7 after fetal viability unless such a termination is nec8 essary to preserve the life or health of the woman;

9 and

10 (3) may impose requirements on the perform11 ance of abortion procedures if such requirements are

12 medically necessary to protect the health of women

13 undergoing such procedures.

14 (e) RULES OF CONSTRUCTION.—Nothing in this sec15 tion shall be construed to—

16 (1) prevent a State from protecting unwilling

17 individuals or private health care institutions from

18 being required to participate in the performance of

19 abortions to which the individuals or institutions are

20 conscientiously opposed;

21 (2) prevent a State from declining to pay for

22 the performance of abortions; or

23 (3) prevent a State from requiring a minor to

24 involve a parent, guardian, or other responsible

25 adult before terminating a pregnancy.
29

•S 1208 IS

1 SEC. 305. FAIRNESS IN INSURANCE.

2 Notwithstanding any other provision of law, no Fed3 eral law shall be construed to prohibit a health plan from

4 offering coverage for the full range of reproductive health

5 care services, including abortion services.

6 SEC. 306. REPRODUCTIVE RIGHTS OF WOMEN IN THE MILI7 TARY.

8 Section 1093 of title 10, United States Code, is

9 amended—

10 (1) in subsection (a), by inserting before the pe11 riod the following: ‘‘or in a case in which the preg12 nancy involved is the result of an act of rape or in13 cest or the abortion involved is medically necessary

14 or appropriate’’;

15 (2) by striking subsection (b) (as added by sec16 tion 738 of the National Defense Authorization Act

17 for Fiscal Year 1996 (Public Law 104–106; 110

18 Stat. 383)); and

19 (3) by adding at the end the following:

20 ‘‘(b) ABORTIONS IN FACILITIES OVERSEAS.—Sub21 section (a) does not limit the performing of an abortion

22 in a facility of the uniformed services located outside the

23 48 contiguous States of the United States if—

24 ‘‘(1) the cost of performing the abortion is fully

25 paid from a source or sources other than funds

26 available to the Department of Defense;
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•S 1208 IS

1 ‘‘(2) abortions are not prohibited by the laws of

2 the jurisdiction where the facility is located; and

3 ‘‘(3) the abortion would otherwise be permitted

4 under the laws applicable to the provision of health

5 care to members and former members of the uni6 formed services and their dependents in such

7 facility.’’.

Æ