[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3755 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3755
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 HOUSE OF REPRESENTATIVES
June 8, 2021
Ms. Chu (for herself, Mr. Allred, Ms. Barragan, Mr. Bera, Mr.
Blumenauer, Ms. Blunt Rochester, Ms. Bonamici, Mr. Brown, Ms. Brownley,
Ms. Bush, Mr. Carbajal, Mr. Cardenas, Mr. Carson, Mr. Case, Mr. Casten,
Ms. Castor of Florida, Mr. Cicilline, Ms. Clark of Massachusetts, Ms.
Clarke of New York, Mr. Cleaver, Mr. Cohen, Mr. Connolly, Mr. Cooper,
Mr. Courtney, Mr. Crist, Mr. Crow, Mr. Danny K. Davis of Illinois, Ms.
Dean, Mr. DeFazio, Ms. DeGette, Ms. DeLauro, Ms. DelBene, Mr. Delgado,
Mrs. Demings, Mr. DeSaulnier, Mr. Deutch, Mr. Doggett, Mr. Michael F.
Doyle of Pennsylvania, Ms. Escobar, Mrs. Fletcher, Mr. Foster, Ms. Lois
Frankel of Florida, Mr. Gallego, Ms. Garcia of Texas, Mr. Garcia of
Illinois, Mr. Gomez, Mrs. Hayes, Mr. Himes, Ms. Houlahan, Ms. Jackson
Lee, Ms. Jacobs of California, Ms. Jayapal, Mr. Johnson of Georgia, Mr.
Jones, Mr. Kahele, Ms. Kelly of Illinois, Mr. Kilmer, Mrs. Kirkpatrick,
Mr. Krishnamoorthi, Ms. Kuster, Mr. Larsen of Washington, Mr. Larson of
Connecticut, Mrs. Lawrence, Mrs. Lee of Nevada, Ms. Lee of California,
Mr. Levin of Michigan, Mr. Levin of California, Mr. Lieu, Mr.
Lowenthal, Mrs. Carolyn B. Maloney of New York, Mr. Sean Patrick
Maloney of New York, Ms. Matsui, Ms. McCollum, Mr. McEachin, Mr.
McNerney, Mr. Meeks, Ms. Meng, Ms. Moore of Wisconsin, Mr. Morelle, Mr.
Moulton, Mr. Nadler, Mrs. Napolitano, Mr. Neguse, Ms. Newman, Ms.
Norton, Mr. O'Halleran, Ms. Ocasio-Cortez, Ms. Omar, Mr. Payne, Ms.
Pingree, Mr. Pocan, Ms. Pressley, Mr. Price of North Carolina, Mr.
Raskin, Miss Rice of New York, Ms. Ross, Mr. Ryan, Mr. Sarbanes, Ms.
Scanlon, Ms. Schakowsky, Mr. Schiff, Mr. Schrader, Mr. Sherman, Mr.
Sires, Mr. Smith of Washington, Mr. Soto, Ms. Speier, Mr. Stanton, Ms.
Strickland, Mr. Swalwell, Ms. Tlaib, Mr. Tonko, Mr. Torres of New York,
Mr. Trone, Ms. Underwood, Mr. Vargas, Ms. Velazquez, Ms. Wasserman
Schultz, Ms. Waters, Mr. Welch, Ms. Wild, Ms. Williams of Georgia, Ms.
Wilson of Florida, Mr. Perlmutter, Ms. Titus, Mr. Auchincloss, Mr.
Espaillat, Mrs. Watson Coleman, Mr. Butterfield, Mr. McGovern, Mr.
Takano, Mr. Keating, Mr. Costa, Mr. Huffman, Mr. Castro of Texas, Ms.
Davids of Kansas, Mr. Cartwright, Mr. Lawson of Florida, Mr. Schneider,
Ms. Sewell, Mr. Ruppersberger, Mr. Kim of New Jersey, Ms. Adams, Mr.
Yarmuth, Mr. Brendan F. Boyle of Pennsylvania, Ms. Sanchez, Mr. Evans,
Mr. Lynch, Mrs. Trahan, Mr. Pascrell, Mr. Neal, Mr. Suozzi, Mr.
Panetta, Mr. Peters, Mr. Thompson of California, Ms. Lofgren, Mrs.
McBath, Ms. Schrier, Mr. Horsford, Mr. Kind, Mrs. Beatty, Mr. Khanna,
Mr. Higgins of New York, Mr. Green of Texas, Ms. Johnson of Texas, Mr.
Ruiz, Mrs. Murphy of Florida, Mr. Pappas, Mr. Gottheimer, Mr. Mrvan,
Ms. Manning, Mr. Grijalva, and Mr. Beyer) introduced the following
bill; which was referred to the Committee on Energy and Commerce
_______________________________________________________________________
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 to 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 on the patient. 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>