II 

116TH CONGRESS 

1ST SESSION S. 1645 

To protect a woman’s ability to determine whether and when to bear a 

child or end a pregnancy, and to protect a health care provider’s ability 

to provide reproductive health care services, including abortion services. 

IN THE SENATE OF THE UNITED STATES 

MAY 23 (legislative day, MAY 22), 2019 

Mr. BLUMENTHAL (for himself, Ms. BALDWIN, Mr. MENENDEZ, Mr. BROWN, 

Ms. HARRIS, Mr. MERKLEY, Mr. WHITEHOUSE, Mr. BENNET, Mr. MARKEY, Ms. WARREN, Mr. CARDIN, Mr. HEINRICH, Ms. STABENOW, Ms. 

KLOBUCHAR, Mr. TESTER, Ms. ROSEN, Mr. COONS, Ms. CORTEZ MASTO, 

Mrs. SHAHEEN, Mr. SANDERS, Ms. HIRONO, Ms. HASSAN, Mr. SCHATZ, 

Mr. KING, Ms. SMITH, Mrs. MURRAY, Mr. PETERS, Mr. WYDEN, Mrs. 

FEINSTEIN, Mrs. GILLIBRAND, Mr. MURPHY, Mr. LEAHY, Ms. 

DUCKWORTH, Mr. VAN HOLLEN, Mr. CARPER, Ms. CANTWELL, Mr. 

BOOKER, Mr. WARNER, Mr. UDALL, Mr. SCHUMER, Mr. KAINE, Mr. 

DURBIN, and Ms. SINEMA) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To protect a woman’s ability to determine whether and when 

to bear a child or end a pregnancy, and to protect 

a health care provider’s ability to provide reproductive 

health care services, including abortion services. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Women’s Health Pro3 tection Act of 2019’’. 

4 SEC. 2. FINDINGS AND PURPOSE. 

5 (a) FINDINGS.—Congress finds the following: 

6 (1) Access to safe, legal abortion services is es7 sential to women’s health and central to women’s 

8 ability to participate equally in the economic and so9 cial life of the United States. 

10 (2) Since 1973, the Supreme Court repeatedly 

11 has recognized the constitutional right of a woman 

12 to decide to terminate her pregnancy before fetal vi13 ability, and to terminate her pregnancy after fetal 

14 viability where it is necessary, in the good-faith med15 ical judgment of the treating health care profes16 sional, for the preservation of her life or health. 

17 (3) Nonetheless, access to safe, legal abortion 

18 services has been hindered across the United States 

19 in various ways, including blockades of health care 

20 facilities and associated violence, prohibitions of and 

21 restrictions on insurance coverage, restrictions which 

22 shame and stigmatize women seeking abortion serv23 ices, and medically unnecessary regulations which 

24 neither confer any health benefit nor further the 

25 safety of abortion services, but which harm women 

26 by delaying access to, and reducing the availability 


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1 of, services. Since 2010, States and local govern2 ments have passed more than 400 such restrictions 

3 singling out health care providers who offer abortion 

4 services and interfering with health care providers’ 

5 ability to provide reproductive health care services 

6 and the ability of patients to obtain those services. 

7 (4) Many State and local governments have im8 posed restrictions on the provision of abortion that 

9 are neither evidence-based nor generally applicable 

10 to the medical profession or to other medically com11 parable outpatient gynecological procedures, such as 

12 endometrial ablations, dilation and curettage for rea13 sons other than abortion, hysteroscopies, loop 

14 electrosurgical excision procedures, or other analo15 gous non-gynecological procedures performed in 

16 similar outpatient settings including vasectomy, 

17 sigmoidoscopy, and colonoscopy. 

18 (5) Legal abortion is one of the safest medical 

19 procedures in the United States. An independent re20 view of research on the safety and quality of abor21 tion services in the United States, published by the 

22 National Academies of Sciences, Engineering, and 

23 Medicine in 2018, found that abortion in all forms 

24 is safe and effective and that the biggest threats to 

25 the quality of abortion services in the United States 


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1 are State regulations that create barriers to care. 

2 These abortion-specific restrictions conflict with 

3 medical standards and are not supported by the rec4 ommendations and guidelines issued by leading re5 productive health care professional organizations in6 cluding the American College of Obstetricians and 

7 Gynecologists, the Society of Family Planning, the 

8 National Abortion Federation, the World Health Or9 ganization, and others. 

10 (6) Many abortion-specific restrictions do not 

11 confer any health or safety benefits on the patient. 

12 Instead, these restrictions have the purpose and ef13 fect of unduly burdening women’s personal and pri14 vate medical decisions to end their pregnancies by 

15 making access to abortion services more difficult, 

16 invasive, and costly, forcing women to travel signifi17 cant distances and make multiple unnecessary visits 

18 to the provider, and in some cases, foreclosing the 

19 option altogether. For example, a 2018 report from 

20 the University of California San Francisco’s Advanc21 ing New Standards in Reproductive Health research 

22 group found that in 27 cities across the United 

23 States, people have to travel more than 100 miles in 

24 any direction to reach an abortion provider. 


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1 (7) These restrictions additionally harm wom2 en’s health by reducing access not only to abortion 

3 services but also to the other essential health care 

4 services offered by the providers targeted by the re5 strictions, including— 

6 (A) contraceptive services, which advance 

7 women’s health and provide a range of benefits, 

8 including preventing unintended pregnancies 

9 and reducing the need for abortion; and 

10 (B) screenings for cervical cancer and sex11 ually transmitted infections. 

12 (8) The cumulative effect of these numerous re13 strictions has been to severely limit the availability 

14 of abortion services in some areas, creating a patch15 work system where access to abortion services is 

16 more available in some States than in others. A 

17 2019 report from the Government Accountability Of18 fice examining State Medicaid compliance with abor19 tion coverage requirements analyzed 7 key chal20 lenges (identified both by health care providers and 

21 research literature) and their effect on abortion ac22 cess, and found that access to abortion services var23 ied across the States and even within a State. 

24 (9) The harms of these abortion-specific restric25 tions fall especially heavily on low-income women, 


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1 women of color, immigrants, young people, and 

2 women living in rural and other medically under3 served areas. 

4 (10) Abortion-specific restrictions single out 

5 health services used by women, and rely on and rein6 force stereotypes about women’s roles, women’s deci7 sionmaking, and women’s need for protection. These 

8 restrictions harm the basic autonomy, dignity, equal9 ity, and ability of women to participate in the social 

10 and economic life of the Nation. 

11 (11) Not all people who become pregnant or 

12 need abortion services identify as women. Access to 

13 abortion services is critical to the health of every 

14 person regardless of actual or perceived race, color, 

15 national origin, immigration status, sex (including 

16 gender identity, sex stereotyping, or sexual orienta17 tion), age, or disability status. This Act’s protection 

18 is inclusive of all pregnant people. 

19 (12) These restrictions affect the cost and 

20 availability of abortion services, and the settings in 

21 which abortion services are delivered. Women travel 

22 across State lines and otherwise engage in interstate 

23 commerce to access this important medical care, and 

24 more would be forced to do so absent this Act. Like25 wise, health care providers travel across State lines 


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1 and otherwise engage in interstate commerce in 

2 order to provide reproductive health services to pa3 tients, and more would be forced to do so absent this 

4 Act. 

5 (13) Health care providers, including those who 

6 provide abortion services, engage in a form of eco7 nomic and commercial activity when they provide 

8 abortion services, and there is an interstate market 

9 for abortion services. 

10 (14) To provide abortion services, health care 

11 providers engage in interstate commerce to purchase 

12 medicine, medical equipment, and other necessary 

13 goods and services. To provide and assist others in 

14 providing abortion services, health care providers en15 gage in interstate commerce to obtain and provide 

16 training. To provide abortion services, health care 

17 providers employ and obtain commercial services 

18 from doctors, nurses, and other personnel who en19 gage in interstate commerce and travel across State 

20 lines. Abortion restrictions substantially affect inter21 state commerce in numerous ways. 

22 (15) It is difficult and time consuming for clin23 ics to challenge State laws that burden or impede 

24 abortion services. Litigation that blocks one abortion 

25 restriction may not prevent a State from adopting 


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1 other abortion restrictions or using different meth2 ods to burden or impede abortion services. There is 

3 a history and pattern of States passing successive 

4 and different laws that impede and unduly burden 

5 abortion services. 

6 (16) When a health care provider ceases pro7 viding abortion services as a result of burdensome 

8 and medically unnecessary regulations, it is often 

9 difficult or impossible for that health care provider 

10 to recommence providing those abortion services, 

11 and difficult or impossible for other health care pro12 viders to provide abortion services that restore or re13 place the ceased abortion services. 

14 (17) An overwhelming majority of abortions in 

15 the United States are provided in clinics, not hos16 pitals. The large majority of United States counties 

17 have no clinics that provide abortion. 

18 (18) Congress has the authority to enact this 

19 Act to protect abortion services pursuant to— 

20 (A) its powers under the commerce clause 

21 of section 8 of article I of the Constitution of 

22 the United States; 

23 (B) its powers under section 5 of the Four24 teenth Amendment to the Constitution of the 


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1 United States to enforce the provisions of sec2 tion 1 of the Fourteenth Amendment; and 

3 (C) its powers under the necessary and 

4 proper clause of section 8 of article I of the 

5 Constitution of the United States. 

6 (19) Congress has used its authority in the past 

7 to protect women’s ability to access abortion services 

8 and health care providers’ ability to provide abortion 

9 services. In the early 1990s, protests and blockades 

10 at health care facilities where abortion services were 

11 provided, and associated violence, increased dramati12 cally and reached crisis level, requiring congressional 

13 action. Congress passed the Freedom of Access to 

14 Clinic Entrances Act (Public Law 103–259; 108 

15 Stat. 694) to address that situation and protect 

16 physical access to abortion services. 

17 (20) Congressional action is necessary to put an 

18 end to harmful restrictions, to federally protect ac19 cess to abortion services for all women regardless of 

20 where they live, and to protect the ability of repro21 ductive health care providers to provide these serv22 ices in a safe and accessible manner. 

23 (b) PURPOSE.—It is the purpose of this Act— 

24 (1) to permit health care providers to provide 

25 abortion services without limitations or requirements 


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1 that single out the provision of abortion services for 

2 restrictions that are more burdensome than those re3 strictions imposed on medically comparable proce4 dures, do not significantly advance women’s health 

5 or the safety of abortion services, and make abortion 

6 services more difficult to access; 

7 (2) to promote women’s health and women’s 

8 ability to participate equally in the economic and so9 cial life of the United States; and 

10 (3) to invoke congressional authority, including 

11 the powers of Congress under the commerce clause 

12 of section 8 of article I of the Constitution of the 

13 United States, its powers under section 5 of the 

14 Fourteenth Amendment to the Constitution of the 

15 United States to enforce the provisions of section 1 

16 of the Fourteenth Amendment, and its powers under 

17 the necessary and proper clause of section 8 of arti18 cle I of the Constitution of the United States. 

19 SEC. 3. DEFINITIONS. 

20 In this Act: 

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

22 services’’ means an abortion and any medical or 

23 non-medical services related to and provided in con24 junction with an abortion (whether or not provided 


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1 at the same time or on the same day as the abor2 tion). 

3 (2) HEALTH CARE PROVIDER.—The term 

4 ‘‘health care provider’’ means any entity or indi5 vidual (including any physician, certified nurse-mid6 wife, nurse practitioner, and physician assistant) 

7 that is— 

8 (A) engaged in the delivery of health care 

9 services, including abortion services; and 

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

11 licensed or certified to engage in the delivery of 

12 such services, is so licensed or certified. 

13 (3) MEDICALLY COMPARABLE PROCEDURES.— 

14 The term ‘‘medically comparable procedures’’ means 

15 medical procedures that are similar in terms of 

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

17 the clinical setting that is indicated. 

18 (4) PREGNANCY.—The term ‘‘pregnancy’’ refers 

19 to the period of the human reproductive process be20 ginning with the implantation of a fertilized egg. 

21 (5) VIABILITY.—The term ‘‘viability’’ means 

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

23 medical judgment of the treating health care pro24 vider, based on the particular facts of the case be25 fore 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. PERMITTED SERVICES. 

4 (a) GENERAL RULE.—A health care provider has a 

5 statutory right under this Act to provide abortion services, 

6 and may provide abortion services, and that provider’s pa7 tient has a corresponding right to receive such services, 

8 without any of the following limitations or requirements: 

9 (1) A requirement that a health care provider 

10 perform specific tests or medical procedures in con11 nection with the provision of abortion services, un12 less generally required for the provision of medically 

13 comparable procedures. 

14 (2) A requirement that the same health care 

15 provider who provides abortion services also perform 

16 specified tests, services, or procedures prior to or 

17 subsequent to the abortion. 

18 (3) A requirement that a health care provider 

19 offer or provide the patient seeking abortion services 

20 medically inaccurate information in advance of or 

21 during abortion services. 

22 (4) A limitation on a health care provider’s abil23 ity to prescribe or dispense drugs based on current 

24 evidence-based regimens or the provider’s good-faith 


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1 medical judgment, other than a limitation generally 

2 applicable to the medical profession. 

3 (5) A limitation on a health care provider’s abil4 ity to provide abortion services via telemedicine, 

5 other than a limitation generally applicable to the 

6 provision of medical services via telemedicine. 

7 (6) A requirement or limitation concerning the 

8 physical plant, equipment, staffing, or hospital 

9 transfer arrangements of facilities where abortion 

10 services are provided, or the credentials or hospital 

11 privileges or status of personnel at such facilities, 

12 that is not imposed on facilities or the personnel of 

13 facilities where medically comparable procedures are 

14 performed. 

15 (7) A requirement that, prior to obtaining an 

16 abortion, a patient make one or more medically un17 necessary in-person visits to the provider of abortion 

18 services or to any individual or entity that does not 

19 provide abortion services. 

20 (8) A prohibition on abortion prior to fetal via21 bility, including a prohibition or restriction on a par22 ticular abortion procedure. 

23 (9) A prohibition on abortion after fetal viabil24 ity when, in the good-faith medical judgment of the 

25 treating health care provider, continuation of the 


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1 pregnancy would pose a risk to the pregnant pa2 tient’s life or health. 

3 (10) A limitation on a health care provider’s 

4 ability to provide immediate abortion services when 

5 that health care provider believes, based on the 

6 good-faith medical judgment of the provider, that 

7 delay would pose a risk to the patient’s health. 

8 (11) A requirement that a patient seeking abor9 tion services prior to fetal viability state the pa10 tient’s reasons for seeking abortion services, or a 

11 limitation on the provision of abortion services prior 

12 to fetal viability based on the patient’s reasons or 

13 perceived reasons for obtaining abortion services. 

14 (b) OTHER LIMITATIONS OR REQUIREMENTS.—A 

15 health care provider has a statutory right to provide abor16 tion services, and may provide abortion services, and that 

17 provider’s patient has a corresponding right to receive 

18 such services, without a limitation or requirement that— 

19 (1) is the same as or similar to one or more of 

20 the limitations or requirements described in sub21 section (a); or 

22 (2) both— 

23 (A) singles out the provision of abortion 

24 services, health care providers who provide 


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1 abortion services, or facilities in which abortion 

2 services are provided; and 

3 (B) impedes access to abortion services 

4 based on one or more of the factors described 

5 in subsection (c). 

6 (c) FACTORS FOR CONSIDERATION.—Factors for a 

7 court to consider in determining whether a limitation or 

8 requirement impedes access to abortion services for pur9 poses of subsection (b)(2)(B) include the following: 

10 (1) Whether the limitation or requirement 

11 interferes with a health care provider’s ability to 

12 provide care and render services in accordance with 

13 the provider’s good-faith medical judgment. 

14 (2) Whether the limitation or requirement is 

15 reasonably likely to delay some patients in accessing 

16 abortion services. 

17 (3) Whether the limitation or requirement is 

18 reasonably likely to directly or indirectly increase the 

19 cost of providing abortion services or the cost for ob20 taining abortion services (including costs associated 

21 with travel, childcare, or time off work). 

22 (4) Whether the limitation or requirement is 

23 reasonably likely to have the effect of necessitating 

24 a trip to the offices of a health care provider that 

25 would not otherwise be required. 


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1 (5) Whether the limitation or requirement is 

2 reasonably likely to result in a decrease in the avail3 ability of abortion services in a given State or geo4 graphic region. 

5 (6) Whether the limitation or requirement im6 poses penalties that are not imposed on other health 

7 care providers for comparable conduct or failure to 

8 act, or that are more severe than penalties imposed 

9 on other health care providers for comparable con10 duct or failure to act. 

11 (7) The cumulative impact of the limitation or 

12 requirement combined with other new or existing 

13 limitations or requirements. 

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

15 limitation or requirement violates a health care provider’s 

16 or patient’s statutory rights under subsection (b), a party 

17 must establish, by clear and convincing evidence, that— 

18 (1) the limitation or requirement significantly 

19 advances the safety of abortion services or the health 

20 of patients; and 

21 (2) the safety of abortion services or the health 

22 of patients cannot be advanced by a less restrictive 

23 alternative measure or action. 

24 (e) APPLICABILITY.— 


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1 (1) GENERAL RELATIONSHIP TO FEDERAL

2 LAW.—Except as stated in paragraph (2), this Act 

3 supersedes and applies to all Federal law, and the 

4 implementation of that law, whether statutory or 

5 otherwise, and whether adopted before or after the 

6 date of enactment of this Act, notwithstanding any 

7 other provision of Federal law, including the Reli8 gious Freedom Restoration Act of 1993 (42 U.S.C. 

9 2000bb et seq.). 

10 (2) LIMITATIONS.—The provisions of this Act 

11 shall not supersede or apply to— 

12 (A) laws regulating physical access to clin13 ic entrances; 

14 (B) insurance or medical assistance cov15 erage of abortion services; 

16 (C) the procedure described in section 

17 1531(b)(1) of title 18, United States Code; or 

18 (D) generally applicable State contract 

19 law. 

20 SEC. 5. RELATIONSHIP TO STATE LAW AND PREEMPTION. 

21 No State, territory, or possession of the United 

22 States, or the District of Columbia, or the Commonwealth 

23 of Puerto Rico, or subdivision, branch, department, agen24 cy, instrumentality, or official (or other person acting 

25 under color of law) of any of the forgoing, shall enact or 


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1 enforce any law, rule, regulation, standard, or other provi2 sion having the force and effect of law that conflicts with 

3 any provision of this Act. 

4 SEC. 6. EFFECTIVE DATE. 

5 This Act shall take effect immediately upon the date 

6 of enactment of this Act. This Act shall apply to all re7 strictions on the provision of, or access to, abortion serv8 ices whether the restrictions are enacted or imposed prior 

9 to or after the date of enactment of this Act, except as 

10 otherwise provided in this Act. 

11 SEC. 7. LIBERAL CONSTRUCTION. 

12 (a) LIBERAL CONSTRUCTION.—In interpreting the 

13 provisions of this Act, a court shall liberally construe such 

14 provisions to effectuate the purposes of the Act. 

15 (b) RULE OF CONSTRUCTION.—Nothing in this Act 

16 shall be construed to authorize any government to inter17 fere with a woman’s ability to terminate her pregnancy, 

18 to diminish or in any way negatively affect a woman’s con19 stitutional right to terminate her pregnancy, or to displace 

20 any other remedy for violations of the constitutional right 

21 to terminate a pregnancy. 

22 SEC. 8. ENFORCEMENT. 

23 (a) ATTORNEY GENERAL.—The Attorney General 

24 may commence a civil action for prospective injunctive re25 lief on behalf of the United States against any government 


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1 official that is charged with implementing or enforcing any 

2 limitation or requirement that is challenged as a violation 

3 of a statutory right under this Act. The court shall hold 

4 unlawful and set aside the limitation or requirement if it 

5 is in violation of this Act. 

6 (b) PRIVATE RIGHT OF ACTION.— 

7 (1) IN GENERAL.—Any individual or entity, in8 cluding any health care provider, aggrieved by an al9 leged violation of this Act may commence a civil ac10 tion for prospective injunctive relief against the gov11 ernment official that is charged with implementing 

12 or enforcing the limitation or requirement that is 

13 challenged as a violation of a statutory right under 

14 this Act. The court shall hold unlawful and set aside 

15 the limitation or requirement if it is in violation of 

16 this Act. 

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

18 provider may commence an action for prospective in19 junctive relief on its own behalf and/or on behalf of 

20 the provider’s patients who are or may be adversely 

21 affected by an alleged violation of this Act. 

22 (c) EQUITABLE RELIEF.—In any action under this 

23 section, the court may award appropriate equitable relief, 

24 including temporary, preliminary, or permanent injunctive 

25 relief. 


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1 (d) COSTS.—In any action under this section, the 

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

3 attorney fees, to any prevailing plaintiff. A plaintiff shall 

4 not be liable to a defendant for costs in any non-frivolous 

5 action under this section. 

6 (e) JURISDICTION.—The district courts of the United 

7 States shall have jurisdiction over proceedings under this 

8 Act and shall exercise the same without regard to whether 

9 the party aggrieved shall have exhausted any administra10 tive or other remedies that may be provided for by law. 

11 (f) ABROGATION OF STATE IMMUNITY.—A State 

12 shall not be immune under the Eleventh Amendment to 

13 the Constitution of the United States from an action in 

14 Federal or State court of competent jurisdiction for a vio15 lation of this Act. In any action against a State for a viola16 tion of the requirements of this Act, remedies (including 

17 remedies both at law and in equity) are available for such 

18 a violation to the same extent as such remedies are avail19 able for such a violation in an action against any public 

20 or private entity other than a State. 

21 SEC. 9. SEVERABILITY. 

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

23 provision to any person, entity, government, or cir24 cumstance, is held to be unconstitutional, the remainder 

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


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

2 be affected thereby. 

Æ 


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