House Passes Two Bills Seeking to Create and Comprehensively Protect a Statutory Right to Abortion

On July 15, 2022, the United States House of Representatives passed two abortion-related bills, H.R. 8296, the Women’s Health Protection Act of 2022 and H.R. 8297, the Ensuring Women’s Right to Reproductive Freedom Act.  If the bills pass the Senate, they will establish federal statutory rights to abortion and would create comprehensive enforcement mechanisms to protect that right.  Together, the bills would preempt, create defenses to, bar the enforcement of, and create causes of action to remedy, state laws restricting both the provision and receipt of abortion care and individuals who enforce those laws.

Statutory Rights and Defenses

The Women’s Health Protection Act of 2022 (“WHPA”) would create two statutory abortion rights.  First, it would establish a health care provider’s right to provide abortion services, and second, it would establish a patient’s right to receive abortion services.  These statutory rights would preempt contrary state law, and may be raised as a defense to any cause of action against someone subject to lawsuits implementing unlawful restrictions on the abortion rights established by the WHPA.

Unlawful Abortion Restrictions

Eleven specific types of abortion restrictions would be specifically declared unlawful under the WHPA.  Those restrictions are:

(1) requirements that providers perform specific tests or medical procedures in connection with the abortion services unless they are generally required for comparable procedures;

(2) requirements that the same health care provider provide both abortion services as well as specified tests, services, or procedures before or after an abortion;

(3) requirements that providers offer or provide medically inaccurate information;

(4) limitations on health care providers’ prescription or dispensing abilities based on current evidence-based regimens or the provider’s good-faith medical judgment, other than those generally applicable to the medical profession;

(5) limitations on a provider’s ability to provide abortion services via telemedicine other than those that are generally applicable;

(6) requirements or limitations regarding the a hospital’s physical plant, equipment, staffing, transfer arrangements, or the credentials or privileges of personnel at such facilities that is not imposed on the facilities or personnel of facilities where medically comparable procedures are performed;

(7) requirements that patients make medically unnecessary in-person visits to the provider of abortion services or to any individual or entity that does not provide abortion services before the abortion;

(8) prohibitions on abortion prior to fetal viability, including prohibitions or restrictions on a particular abortion procedure;

(9) prohibitions on abortion after fetal viability when, in the good-faith medical judgment of the treating provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health;

(10) limitations on a health care provider’s ability to provide immediate abortion services when that health care provider believes, based on a good-faith medical judgment, that delay would pose a risk to the patient’s health; and

(11) requirements that a patient seeking abortion services before fetal viability disclose the reasons for doing so, or limitations on the provision or obtaining of abortion services any time prior to fetal viability based on any actual, perceived, or potential 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 those reasons.

Additionally all “similar” limitations or requirements would be declared unlawful under the Women’s Health Protection Act.  Other unidentified restrictions that (1) impede access to abortion, and (2) single out abortion services, abortion providers, or abortion facilities, would also be unlawful.  Some of the factors include, for example: whether the limitation or requirement, in a the good-faith medical judgment of a provider, interferes with the ability to provide care and render services or poses a risk to the patient’s health or safety; whether the limitation or requirement is reasonably likely to delay or deter some patients from accessing abortion services; and whether the limitation or requirement imposes penalties that are more severe than or not imposed upon other health care providers for comparable conduct.

While the right to abortion would not be absolute, limitations or requirements restricting abortions will be lawful only if they significantly advance patient health or the safety of abortion services and are the least restrictive means for doing so.  Notably, a litigant advocating for the lawfulness of a given restriction would bear the burden of showing it satisfies these criteria by clear and convincing evidence.

Causes of Action to Directly Enforce the Proposed Federal Right

The WHPA is enforceable by both the Attorney General of the United States and private individuals or entities, as it establishes a private cause of action for any individual, including both providers and patients, or entity injured by a violation of the abortion rights provided.  Entities engaged in the delivery of health care services also may commence suit on behalf of their staff or patients. 

The cause of action must be directed against a state that violates the WHPA, or government official implementing or enforcing unlawful restrictions or limitations on abortion rights.  If a plaintiff succeeds in a suit under the WHPA, courts must set aside the unlawful abortion restrictions, must award prevailing plaintiffs’ costs and attorneys’ fees, and may award further equitable relief.  Given the time sensitivity of the individual’s reproductive healthcare needs, it is possible that an individual would still have to travel to another state in that the cause of action may not provide timely relief.  Courts would, however, be empowered by the WHPA to award temporary and preliminary injunctions.

Causes of Action to Prohibit State Laws Restricting Interstate Abortion Access

The second bill, the Ensuring Women’s Right to Reproductive Freedom Act (“EWRRFA”), prohibits the enforcement of state laws that are inconsistent with the proposed federal abortion rights.  The EWRRFA provides that no person may act under color of State law to prevent, restrict, impede, or retaliate against persons involved in abortions that occur by way of interstate travel.

The EWRRFA bars enforcement of state laws generally targeting those who take action or are involved in the provision of abortion services to nonresident patients that travel interstate to obtain a lawful abortion outside their state of residence.  It prohibits the enforcement of state laws which might otherwise apply to the following groups of people:

• Interstate Abortion Seekers: individuals who travel across state lines for the purpose of obtaining an abortion that is lawful where the abortion would occur;
• Abortion Providers in States Where the Services they Provide are Lawful: health care providers who provide abortion services to residents of other states in a state where the abortion service they provide is lawful;
• Helping Hands: those who assist patients in interstate travel for purpose of obtaining a lawful abortion and those who assist in the provision of abortion services in a state where the service is lawful.

The EWRRFA also prohibits any person from enforcing state laws imposing restrictions upon the movement, such as through mail, of abortive drugs approved or licensed by the FDA.  According to the Guttmacher Institute, as of July 11, 2022, 29 states currently purport to have some type of restriction on medication abortion, though it is unclear at this time how any particular restrictions would interact with the EWRRFA.

As with the WHPA, both the Attorney General of the United States as well as any person harmed by a violation of the EWRRFA’s provisions can enforce the law or bring a claim.  A successful private person is entitled to compensatory damages including economic losses and pain and suffering, as well as declaratory and injunctive relief.  Courts may also award costs and attorneys’ fees.

Thus, these two bills would create robust federal statutory abortion rights, while also empowering the Attorney General, health care providers, patients, and others, to protect those rights in a variety of ways.  To become law, the bills would need to pass the Senate and be signed by the President.