Title: Women’s Health Protection Act of 2021
Policy area: Health

Summary:
Women's Health Protection Act of 2021
This bill prohibits governmental restrictions on the provision of, and access to, abortion services.
Specifically, governments may not limit a provider's ability to
Furthermore, governments may not require a provider to
In addition, governments may not (1) require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services, or (2) prohibit abortion services before fetal viability or after fetal viability when a provider determines the pregnancy risks the patient's life or health.
The bill also prohibits other governmental measures that are similar to the bill's specified restrictions or that otherwise single out and impede access to abortion services, unless a government demonstrates that the measure significantly advances the safety of abortion services or health of patients and cannot be achieved through less restrictive means.
The Department of Justice, individuals, or providers may bring a lawsuit to enforce this bill, and states are not immune from suits for violations.
The bill applies to restrictions imposed both prior and subsequent to the bill's enactment.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1975 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 1975

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

                              June 8, 2021

Mr. Blumenthal (for himself, Ms. Baldwin, Mrs. Shaheen, Mr. Markey, Mr. 
 King, Ms. Warren, Mr. Brown, Ms. Cortez Masto, Mr. Reed, Mr. Schumer, 
   Ms. Smith, Mr. Schatz, Mrs. Murray, Mr. Menendez, Ms. Hassan, Mr. 
   Wyden, Ms. Klobuchar, Mr. Merkley, Mr. Booker, Ms. Stabenow, Ms. 
  Sinema, Mr. Cardin, Mr. Murphy, Mr. Whitehouse, Mrs. Feinstein, Ms. 
 Hirono, Mrs. Gillibrand, Ms. Duckworth, Ms. Cantwell, Ms. Rosen, Mr. 
   Van Hollen, Mr. Sanders, Mr. Carper, Mr. Bennet, Mr. Warner, Mr. 
Padilla, Mr. Coons, Mr. Durbin, Mr. Kaine, Mr. Heinrich, Mr. Leahy, Mr. 
Tester, Mr. Hickenlooper, Mr. Peters, Mr. Lujan, Mr. Kelly, Mr. Ossoff, 
 and Mr. Warnock) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Women's Health Protection Act of 
2021''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Abortion services are essential health care and access 
        to those services is central to people's ability to participate 
        equally in the economic and social life of the United States. 
        Abortion access allows people who are pregnant to make their 
        own decisions about their pregnancies, their families, and 
        their lives.
            (2) Since 1973, the Supreme Court repeatedly has recognized 
        the constitutional right to terminate a pregnancy before fetal 
        viability, and to terminate a pregnancy after fetal viability 
        where it is necessary, in the good-faith medical judgment of 
        the treating health care professional, for the preservation of 
        the life or health of the person who is pregnant.
            (3) Nonetheless, access to abortion services has been 
        obstructed across the United States in various ways, including 
        blockades of health care facilities and associated violence, 
        prohibitions of, and restrictions on, insurance coverage; 
        parental involvement laws (notification and consent); 
        restrictions that shame and stigmatize people seeking abortion 
        services; and medically unnecessary regulations that neither 
        confer any health benefit nor further the safety of abortion 
        services, but which harm people by delaying, complicating 
        access to, and reducing the availability of, abortion services.
            (4) Reproductive Justice requires every individual to have 
        the right to make their own decisions about having children 
        regardless of their circumstances and without interference and 
        discrimination. Reproductive Justice is a human right that can 
        and will be achieved when all people, regardless of actual or 
        perceived race, color, national origin, immigration status, sex 
        (including gender identity, sex stereotyping, or sexual 
        orientation), age, or disability status have the economic, 
        social, and political power and resources to define and make 
        decisions about their bodies, health, sexuality, families, and 
        communities in all areas of their lives, with dignity and self-
        determination.
            (5) Reproductive Justice seeks to address restrictions on 
        reproductive health, including abortion, that perpetuate 
        systems of oppression, lack of bodily autonomy, white 
        supremacy, and anti-Black racism. This violent legacy has 
        manifested in policies including enslavement, rape, and 
        experimentation on Black women; forced sterilizations; medical 
        experimentation on low-income women's reproductive systems; and 
        the forcible removal of Indigenous children. Access to 
        equitable reproductive health care, including abortion 
        services, has always been deficient in the United States for 
        Black, Indigenous, and other People of Color (BIPOC) and their 
        families.
            (6) The legacy of restrictions on reproductive health, 
        rights, and justice is not a dated vestige of a dark history. 
        Presently, the harms of abortion-specific restrictions fall 
        especially heavily on people with low incomes, BIPOC, 
        immigrants, young people, people with disabilities, and those 
        living in rural and other medically underserved areas. 
        Abortion-specific restrictions are even more compounded by the 
        ongoing criminalization of people who are pregnant, including 
        those who are incarcerated, living with HIV, or with substance-
        use disorders. These communities already experience health 
        disparities due to social, political, and environmental 
        inequities, and restrictions on abortion services exacerbate 
        these harms. Removing medically unjustified restrictions on 
        abortion services would constitute one important step on the 
        path toward realizing Reproductive Justice by ensuring that the 
        full range of reproductive health care is accessible to all who 
        need it.
            (7) Abortion-specific restrictions are a tool of gender 
        oppression, as they target health care services that are used 
        primarily by women. These paternalistic restrictions rely on 
        and reinforce harmful stereotypes about gender roles, women's 
        decision-making, and women's need for protection instead of 
        support, undermining their ability to control their own lives 
        and well-being. These restrictions harm the basic autonomy, 
        dignity, and equality of women, and their ability to 
        participate in the social and economic life of the Nation.
            (8) The terms ``woman'' and ``women'' are used in this bill 
        to reflect the identity of the majority of people targeted and 
        affected by restrictions on abortion services, and to address 
        squarely the targeted restrictions on abortion, which are 
        rooted in misogyny. However, access to abortion services is 
        critical to the health of every person capable of becoming 
        pregnant. This Act is intended to protect all people with the 
        capacity for pregnancy--cisgender women, transgender men, non-
        binary individuals, those who identify with a different gender, 
        and others--who are unjustly harmed by restrictions on abortion 
        services.
            (9) Since 2011, States and local governments have passed 
        nearly 500 restrictions singling out health care providers who 
        offer abortion services, interfering with their ability to 
        provide those services and the patients' ability to obtain 
        those services.
            (10) Many State and local governments have imposed 
        restrictions on the provision of abortion services that are 
        neither evidence-based nor generally applicable to the medical 
        profession or to other medically comparable outpatient 
        gynecological procedures, such as endometrial ablations, 
        dilation and curettage for reasons other than abortion, 
        hysteroscopies, loop electrosurgical excision procedures, or 
        other analogous non-gynecological procedures performed in 
        similar outpatient settings including vasectomy, sigmoidoscopy, 
        and colonoscopy.
            (11) Abortion is essential health care and one of the 
        safest medical procedures in the United States. An independent, 
        comprehensive review of the state of science on the safety and 
        quality of abortion services, published by the National 
        Academies of Sciences, Engineering, and Medicine in 2018, found 
        that abortion in the United States is safe and effective and 
        that the biggest threats to the quality of abortion services in 
        the United States are State regulations that create barriers to 
        care. These abortion-specific restrictions conflict with 
        medical standards and are not supported by the recommendations 
        and guidelines issued by leading reproductive health care 
        professional organizations including the American College of 
        Obstetricians and Gynecologists, the Society of Family 
        Planning, the National Abortion Federation, the World Health 
        Organization, and others.
            (12) Many abortion-specific restrictions do not confer any 
        health or safety benefits. Instead, these restrictions have the 
        purpose and effect of unduly burdening people's personal and 
        private medical decisions to end their pregnancies by making 
        access to abortion services more difficult, invasive, and 
        costly, often forcing people to travel significant distances 
        and make multiple unnecessary visits to the provider, and in 
        some cases, foreclosing the option altogether. For example, a 
        2018 report from the University of California San Francisco's 
        Advancing New Standards in Reproductive Health research group 
        found that in 27 cities across the United States, people have 
        to travel more than 100 miles in any direction to reach an 
        abortion provider.
            (13) An overwhelming majority of abortions in the United 
        States are provided in clinics, not hospitals, but the large 
        majority of counties throughout the United States have no 
        clinics that provide abortion.
            (14) These restrictions additionally harm people's health 
        by reducing access not only to abortion services but also to 
        other essential health care services offered by many of the 
        providers targeted by the restrictions, including--
                    (A) screenings and preventive services, including 
                contraceptive services;
                    (B) testing and treatment for sexually transmitted 
                infections;
                    (C) LGBTQ health services; and
                    (D) referrals for primary care, intimate partner 
                violence prevention, prenatal care and adoption 
                services.
            (15) The cumulative effect of these numerous restrictions 
        has been to severely limit the availability of abortion 
        services in some areas, creating a patchwork system where 
        access to abortion services is more available in some States 
        than in others. A 2019 report from the Government 
        Accountability Office examining State Medicaid compliance with 
        abortion coverage requirements analyzed seven key challenges 
        (identified both by health care providers and research 
        literature) and their effect on abortion access, and found that 
        access to abortion services varied across the States and even 
        within a State.
            (16) International human rights law recognizes that access 
        to abortion is intrinsically linked to the rights to life, 
        health, equality and non-discrimination, privacy, and freedom 
        from ill-treatment. United Nations (UN) human rights treaty 
        monitoring bodies have found that legal abortion services, like 
        other reproductive health care services, must be available, 
        accessible, affordable, acceptable, and of good quality. UN 
        human rights treaty bodies have likewise condemned medically 
        unnecessary barriers to abortion services, including mandatory 
        waiting periods, biased counseling requirements, and third-
        party authorization requirements.
            (17) Core human rights treaties ratified by the United 
        States protect access to abortion. For example, in 2018, the UN 
        Human Rights Committee, which oversees implementation of the 
        ICCPR, made clear that the right to life, enshrined in Article 
        6 of the ICCPR, at a minimum requires governments to provide 
        safe, legal, and effective access to abortion where a person's 
        life and health is at risk, or when carrying a pregnancy to 
        term would cause substantial pain or suffering. The Committee 
        stated that governments must not impose restrictions on 
        abortion which subject women and girls to physical or mental 
        pain or suffering, discriminate against them, arbitrarily 
        interfere with their privacy, or place them at risk of 
        undertaking unsafe abortions. Furthermore, the Committee stated 
        that governments should remove existing barriers that deny 
        effective access to safe and legal abortion, refrain from 
        introducing new barriers to abortion, and prevent the 
        stigmatization of those seeking abortion.
            (18) UN independent human rights experts have expressed 
        particular concern about barriers to abortion services in the 
        United States. For example, at the conclusion of his 2017 visit 
        to the United States, the UN Special Rapporteur on extreme 
        poverty and human rights noted concern that low-income women 
        face legal and practical obstacles to exercising their 
        constitutional right to access abortion services, trapping many 
        women in cycles of poverty. Similarly, in May 2020, the UN 
        Working Group on discrimination against women and girls, along 
        with other human rights experts, expressed concern that some 
        states had manipulated the COVID-19 crisis to restrict access 
        to abortion, which the experts recognized as ``the latest 
        example illustrating a pattern of restrictions and 
        retrogressions in access to legal abortion care across the 
        country'' and reminded U.S. authorities that abortion care 
        constitutes essential health care that must remain available 
        during and after the pandemic. They noted that barriers to 
        abortion access exacerbate systemic inequalities and cause 
        particular harm to marginalized communities, including low-
        income people, people of color, immigrants, people with 
        disabilities, and LGBTQ people.
            (19) Abortion-specific restrictions affect the cost and 
        availability of abortion services, and the settings in which 
        abortion services are delivered. People travel across State 
        lines and otherwise engage in interstate commerce to access 
        this essential medical care, and more would be forced to do so 
        absent this Act. Likewise, health care providers travel across 
        State lines and otherwise engage in interstate commerce in 
        order to provide abortion services to patients, and more would 
        be forced to do so absent this Act.
            (20) Health care providers engage in a form of economic and 
        commercial activity when they provide abortion services, and 
        there is an interstate market for abortion services.
            (21) Abortion restrictions substantially affect interstate 
        commerce in numerous ways. For example, to provide abortion 
        services, health care providers engage in interstate commerce 
        to purchase medicine, medical equipment, and other necessary 
        goods and services. To provide and assist others in providing 
        abortion services, health care providers engage in interstate 
        commerce to obtain and provide training. To provide abortion 
        services, health care providers employ and obtain commercial 
        services from doctors, nurses, and other personnel who engage 
        in interstate commerce and travel across State lines.
            (22) It is difficult and time and resource-consuming for 
        clinics to challenge State laws that burden or impede abortion 
        services. Litigation that blocks one abortion restriction may 
        not prevent a State from adopting other similarly burdensome 
        abortion restrictions or using different methods to burden or 
        impede abortion services. There is a history and pattern of 
        States passing successive and different laws that unduly burden 
        abortion services.
            (23) When a health care provider ceases providing abortion 
        services as a result of burdensome and medically unnecessary 
        regulations, it is often difficult or impossible for that 
        health care provider to recommence providing those abortion 
        services, and difficult or impossible for other health care 
        providers to provide abortion services that restore or replace 
        the ceased abortion services.
            (24) Health care providers are subject to license laws in 
        various jurisdictions, which are not affected by this Act 
        except as provided in this Act.
            (25) Congress has the authority to enact this Act to 
        protect abortion services pursuant to--
                    (A) its powers under the commerce clause of section 
                8 of article I of the Constitution of the United 
                States;
                    (B) its powers under section 5 of the Fourteenth 
                Amendment to the Constitution of the United States to 
                enforce the provisions of section 1 of the Fourteenth 
                Amendment; and
                    (C) its powers under the necessary and proper 
                clause of section 8 of Article I of the Constitution of 
                the United States.
            (26) Congress has used its authority in the past to protect 
        access to abortion services and health care providers' ability 
        to provide abortion services. In the early 1990s, protests and 
        blockades at health care facilities where abortion services 
        were provided, and associated violence, increased dramatically 
        and reached crisis level, requiring Congressional action. 
        Congress passed the Freedom of Access to Clinic Entrances Act 
        (Public Law 103-259; 108 Stat. 694) to address that situation 
        and protect physical access to abortion services.
            (27) Congressional action is necessary to put an end to 
        harmful restrictions, to federally protect access to abortion 
        services for everyone regardless of where they live, and to 
        protect the ability of health care providers to provide these 
        services in a safe and accessible manner.
    (b) Purpose.--It is the purpose of this Act--
            (1) to permit health care providers to provide abortion 
        services without limitations or requirements that single out 
        the provision of abortion services for restrictions that are 
        more burdensome than those restrictions imposed on medically 
        comparable procedures, do not significantly advance 
        reproductive health or the safety of abortion services, and 
        make abortion services more difficult to access;
            (2) to promote access to abortion services and women's 
        ability to participate equally in the economic and social life 
        of the United States; and
            (3) to invoke Congressional authority, including the powers 
        of Congress under the commerce clause of section 8 of article I 
        of the Constitution of the United States, its powers under 
        section 5 of the Fourteenth Amendment to the Constitution of 
        the United States to enforce the provisions of section 1 of the 
        Fourteenth Amendment, and its powers under the necessary and 
        proper clause of section 8 of article I of the Constitution of 
        the United States.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Abortion services.--The term ``abortion services'' 
        means an abortion and any medical or non-medical services 
        related to and provided in conjunction with an abortion 
        (whether or not provided at the same time or on the same day as 
        the abortion).
            (2) Government.--The term ``government'' includes each 
        branch, department, agency, instrumentality, and official (and 
        other person acting under color of law) of the United States or 
        a State.
            (3) Health care provider.--The term ``health care 
        provider'' means any entity or individual (including any 
        physician, certified nurse-midwife, nurse practitioner, and 
        physician assistant) that--
                    (A) is engaged or seeks to engage in the delivery 
                of health care services, including abortion services, 
                and
                    (B) if required by law or regulation to be licensed 
                or certified to engage in the delivery of such 
                services--
                            (i) is so licensed or certified, or
                            (ii) would be so licensed or certified but 
                        for their past, present, or potential provision 
                        of abortion services permitted by section 4.
            (4) Medically comparable procedure.--The term ``medically 
        comparable procedures'' means medical procedures that are 
        similar in terms of health and safety risks to the patient, 
        complexity, or the clinical setting that is indicated.
            (5) Pregnancy.--The term ``pregnancy'' refers to the period 
        of the human reproductive process beginning with the 
        implantation of a fertilized egg.
            (6) State.--The term ``State'' includes the District of 
        Columbia, the Commonwealth of Puerto Rico, and each territory 
        and possession of the United States, and any subdivision of any 
        of the foregoing.
            (7) Viability.--The term ``viability'' means the point in a 
        pregnancy at which, in the good-faith medical judgment of the 
        treating health care provider, based on the particular facts of 
        the case before the health care provider, there is a reasonable 
        likelihood of sustained fetal survival outside the uterus with 
        or without artificial support.

SEC. 4. PERMITTED SERVICES.

    (a) General Rule.--A health care provider has a statutory right 
under this Act to provide abortion services, and may provide abortion 
services, and that provider's patient has a corresponding right to 
receive such services, without any of the following limitations or 
requirements:
            (1) A requirement that a health care provider perform 
        specific tests or medical procedures in connection with the 
        provision of abortion services, unless generally required for 
        the provision of medically comparable procedures.
            (2) A requirement that the same health care provider who 
        provides abortion services also perform specified tests, 
        services, or procedures prior to or subsequent to the abortion.
            (3) A requirement that a health care provider offer or 
        provide the patient seeking abortion services medically 
        inaccurate information in advance of or during abortion 
        services.
            (4) A limitation on a health care provider's ability to 
        prescribe or dispense drugs based on current evidence-based 
        regimens or the provider's good-faith medical judgment, other 
        than a limitation generally applicable to the medical 
        profession.
            (5) A limitation on a health care provider's ability to 
        provide abortion services via telemedicine, other than a 
        limitation generally applicable to the provision of medical 
        services via telemedicine.
            (6) A requirement or limitation concerning the physical 
        plant, equipment, staffing, or hospital transfer arrangements 
        of facilities where abortion services are provided, or the 
        credentials or hospital privileges or status of personnel at 
        such facilities, that is not imposed on facilities or the 
        personnel of facilities where medically comparable procedures 
        are performed.
            (7) A requirement that, prior to obtaining an abortion, a 
        patient make one or more medically unnecessary in-person visits 
        to the provider of abortion services or to any individual or 
        entity that does not provide abortion services.
            (8) A prohibition on abortion at any point or points in 
        time prior to fetal viability, including a prohibition or 
        restriction on a particular abortion procedure.
            (9) A prohibition on abortion after fetal viability when, 
        in the good-faith medical judgment of the treating health care 
        provider, continuation of the pregnancy would pose a risk to 
        the pregnant patient's life or health.
            (10) A limitation on a health care provider's ability to 
        provide immediate abortion services when that health care 
        provider believes, based on the good-faith medical judgment of 
        the provider, that delay would pose a risk to the patient's 
        health.
            (11) A requirement that a patient seeking abortion services 
        at any point or points in time prior to fetal viability 
        disclose the patient's reason or reasons for seeking abortion 
        services, or a limitation on the provision or obtaining of 
        abortion services at any point or points in time prior to fetal 
        viability based on any actual, perceived, or potential reason 
        or reasons of the patient for obtaining abortion services, 
        regardless of whether the limitation is based on a health care 
        provider's degree of actual or constructive knowledge of such 
        reason or reasons.
    (b) Other Limitations or Requirements.--A health care provider has 
a statutory right to provide abortion services, and may provide 
abortion services, and that provider's patient has a corresponding 
right to receive such services, without a limitation or requirement 
that--
            (1) is the same as or similar to one or more of the 
        limitations or requirements described in subsection (a); or
            (2) both--
                    (A) expressly, effectively, implicitly, or as 
                implemented singles out the provision of abortion 
                services, health care providers who provide abortion 
                services, or facilities in which abortion services are 
                provided; and
                    (B) impedes access to abortion services.
    (c) Factors for Consideration.--Factors a court may consider in 
determining whether a limitation or requirement impedes access to 
abortion services for purposes of subsection (b)(2)(B) include the 
following:
            (1) Whether the limitation or requirement, in a provider's 
        good-faith medical judgment, interferes with a health care 
        provider's ability to provide care and render services, or 
        poses a risk to the patient's health or safety.
            (2) Whether the limitation or requirement is reasonably 
        likely to delay or deter some patients in accessing abortion 
        services.
            (3) Whether the limitation or requirement is reasonably 
        likely to directly or indirectly increase the cost of providing 
        abortion services or the cost for obtaining abortion services 
        (including costs associated with travel, childcare, or time off 
        work).
            (4) Whether the limitation or requirement is reasonably 
        likely to have the effect of necessitating a trip to the 
        offices of a health care provider that would not otherwise be 
        required.
            (5) Whether the limitation or requirement is reasonably 
        likely to result in a decrease in the availability of abortion 
        services in a given State or geographic region.
            (6) Whether the limitation or requirement imposes penalties 
        that are not imposed on other health care providers for 
        comparable conduct or failure to act, or that are more severe 
        than penalties imposed on other health care providers for 
        comparable conduct or failure to act.
            (7) The cumulative impact of the limitation or requirement 
        combined with other new or existing limitations or 
        requirements.
    (d) Exception.--To defend against a claim that a limitation or 
requirement violates a health care provider's or patient's statutory 
rights under subsection (b), a party must establish, by clear and 
convincing evidence, that--
            (1) the limitation or requirement significantly advances 
        the safety of abortion services or the health of patients; and
            (2) the safety of abortion services or the health of 
        patients cannot be advanced by a less restrictive alternative 
        measure or action.

SEC. 5. APPLICABILITY AND PREEMPTION.

    (a) In General.--
            (1) Except as stated under subsection (b), this Act 
        supersedes and applies to the law of the Federal Government and 
        each State government, and the implementation of such law, 
        whether statutory, common law, or otherwise, and whether 
        adopted before or after the date of enactment of this Act, and 
        neither the Federal Government nor any State government shall 
        enact or enforce any law, rule, regulation, standard, or other 
        provision having the force and effect of law that conflicts 
        with any provision of this Act, notwithstanding any other 
        provision of Federal law, including the Religious Freedom 
        Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
            (2) Federal statutory law adopted after the date of the 
        enactment of this Act is subject to this Act unless such law 
        explicitly excludes such application by reference to this Act.
    (b) Limitations.--The provisions of this Act shall not supersede or 
apply to--
            (1) laws regulating physical access to clinic entrances;
            (2) insurance or medical assistance coverage of abortion 
        services;
            (3) the procedure described in section 1531(b)(1) of title 
        18, United States Code; or
            (4) generally applicable State contract law.

SEC. 6. EFFECTIVE DATE.

    This Act shall take effect immediately upon the date of enactment 
of this Act. This Act shall apply to all restrictions on the provision 
of, or access to, abortion services whether the restrictions are 
enacted or imposed prior to or after the date of enactment of this Act, 
except as otherwise provided in this Act.

SEC. 7. LIBERAL CONSTRUCTION.

    (a) Liberal Construction.--In interpreting the provisions of this 
Act, a court shall liberally construe such provisions to effectuate the 
purposes of the Act.
    (b) Rule of Construction.--Nothing in this Act shall be construed 
to authorize any government to interfere with a person's ability to 
terminate a pregnancy, to diminish or in any way negatively affect a 
person's constitutional right to terminate a pregnancy, or to displace 
any other remedy for violations of the constitutional right to 
terminate a pregnancy.

SEC. 8. ENFORCEMENT.

    (a) Attorney General.--The Attorney General may commence a civil 
action for prospective injunctive relief on behalf of the United States 
against any government official that is charged with implementing or 
enforcing any limitation or requirement that is challenged as a 
violation of a statutory right under this Act. The court shall hold 
unlawful and set aside the limitation or requirement if it is in 
violation of this Act.
    (b) Private Right of Action.--
            (1) In general.--Any individual or entity, including any 
        health care provider, aggrieved by an alleged violation of this 
        Act may commence a civil action for prospective injunctive 
        relief against the government official that is charged with 
        implementing or enforcing the limitation or requirement that is 
        challenged as a violation of a statutory right under this Act. 
        The court shall hold unlawful and set aside the limitation or 
        requirement if it is in violation of this Act.
            (2) Health care provider.--A health care provider may 
        commence an action for prospective injunctive relief on its own 
        behalf and/or on behalf of the provider's patients who are or 
        may be adversely affected by an alleged violation of this Act.
    (c) Equitable Relief.--In any action under this section, the court 
may award appropriate equitable relief, including temporary, 
preliminary, or permanent injunctive relief.
    (d) Costs.--In any action under this section, the court shall award 
costs of litigation, as well as reasonable attorney fees, to any 
prevailing plaintiff. A plaintiff shall not be liable to a defendant 
for costs in any non-frivolous action under this section.
    (e) Jurisdiction.--The district courts of the United States shall 
have jurisdiction over proceedings under this Act and shall exercise 
the same without regard to whether the party aggrieved shall have 
exhausted any administrative or other remedies that may be provided for 
by law.
    (f) Abrogation of State Immunity.--A State shall not be immune 
under the Eleventh Amendment to the Constitution of the United States 
from an action in Federal or State court of competent jurisdiction for 
a violation of this Act. In any action against a State for a violation 
of the requirements of this Act, remedies (including remedies both at 
law and in equity) are available for such a violation to the same 
extent as such remedies are available for such a violation in an action 
against any public or private entity other than a State.

SEC. 9. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person, entity, government, or circumstance, is held to be 
unconstitutional, the remainder of this Act, or the application of such 
provision to all other persons, entities, governments, or 
circumstances, shall not be affected thereby.
                                 <all>