[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5276 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 5276
To prohibit the limitation of access to assisted reproductive
technology, and all medically necessary care surrounding such
technology.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 15, 2022
Ms. Duckworth (for herself, Mrs. Murray, Mrs. Gillibrand, and Ms.
Baldwin) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To prohibit the limitation of access to assisted reproductive
technology, and all medically necessary care surrounding such
technology.
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 ``Right to Build Families Act of
2022''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Assisted reproductive technology.--The term ``assisted
reproductive technology'' has the meaning given such term in
section 8 of the Fertility Clinic Success Rate and
Certification Act of 1992 (42 U.S.C. 263a-7(1)).
(2) Health care provider.--The term ``health care
provider'' means any entity or individual (including any
physician, nurse practitioner, physician assistant, pharmacist,
and other individuals, as determined by the Secretary of Health
and Human Services) that--
(A) is engaged or seeks to engage in the delivery
of assisted reproductive technology, such as through
the provision of evidence-based information,
counseling, or items and services related to fertility
treatment; and
(B) if required by State law to be licensed,
certified, or otherwise authorized to engage in the
delivery of such services--
(i) is so licensed, certified, or otherwise
authorized; or
(ii) would be so licensed, certified, or
otherwise authorized but for the individual's
or entity's past, present, or potential
provision of assisted reproductive technology
in accordance with section 3.
(3) State.--The term ``State'' includes each of the 50
States, the District of Columbia, Puerto Rico, each territory
and possession of the United States, and any political
subdivision of a State.
SEC. 3. RIGHT TO ASSISTED REPRODUCTIVE TECHNOLOGY.
(a) Prohibition.--No State, or official or employee of a State
acting in the scope of such appointment or employment, may prohibit or
unreasonably limit, for reasons other than to enforce regulations
described in subsection (c)--
(1) any individual from--
(A) accessing assisted reproductive technology;
(B) continuing or completing an ongoing assisted
reproductive technology treatment or procedure pursuant
to a written plan or agreement with a health care
provider; or
(C) retaining all rights regarding the use of
reproductive genetic materials, including gametes;
(2) any health care provider from--
(A) performing assisted reproductive technology
treatments or procedures; or
(B) providing evidence-based information related to
assisted reproductive technology; or
(3) any insurance provider from covering assisted
reproductive technology treatments or procedures.
(b) Enforcement.--
(1) The attorney general.--The Attorney General may
commence a civil action on behalf of the United States against
any State, or against any government official, individual, or
entity that enacts, implements or enforces a limitation or
requirement that violates subsection (a). The court shall hold
unlawful and set aside the limitation or requirement if it is
in violation of subsection (a).
(2) Private right of action.--Any individual or entity
adversely affected by an alleged violation of subsection (a)
may commence a civil action against any State that violates
this section or against any government official that enacts,
implements, or enforces a limitation or requirement that
violates subsection (a). The court shall hold unlawful and
enjoin the limitation or requirement if it is in violation of
subsection (a).
(3) Health care provider.--A health care provider may
commence an action for relief on its own behalf, on behalf of
the provider's staff, and on behalf of the provider's patients
who are or may be adversely affected by an alleged violation of
subsection (a).
(4) Equitable relief.--In any action under this section,
the court may award appropriate equitable relief, including
temporary, preliminary, or permanent injunctive relief.
(5) Costs.--In any action under this section, the court
shall award costs of litigation, as well as reasonable
attorney's fees, to any prevailing plaintiff. A plaintiff shall
not be liable to a defendant for costs or attorney's fees in
any non-frivolous action under this section.
(6) Jurisdiction.--The district courts of the United States
shall have jurisdiction over proceedings under this section 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.
(7) Abrogation of state immunity.--Neither a State that
enforces or maintains, nor a government official who is
permitted to implement or enforce, any limitation or
requirement that violates subsection (a) shall be immune under
the Tenth Amendment to the Constitution of the United States,
the Eleventh Amendment to the Constitution of the United
States, or any other source of law, from an action in a Federal
or State court of competent jurisdiction challenging that
limitation or requirement.
(8) Right to remove.--Any party shall have a right to
remove an action brought under this subsection to the district
court of the United States for the district and division
embracing the place where such action is pending. An order
remanding the case to the State court from which it was removed
under this paragraph may be immediately reviewable by appeal or
otherwise.
(c) State Regulation of Medicine.--Nothing in this Act shall be
construed to prohibit enforcement of health and safety regulations a
State requires of medical facilities or providers, if such
regulations--
(1) advance the safety of health care services or the
health of patients; and
(2) cannot be advanced by a less restrictive alternative
measure or action.
(d) Insurance.--Nothing in this Act shall be construed to modify,
supersede, or otherwise affect any Federal or State law regarding
insurance coverage of assisted reproductive technologies and
treatments.
(e) Regulations.--Not later than 1 year after the date of enactment
of this Act, the Secretary of Health and Human Services shall
promulgate regulations to carry out this section.
SEC. 4. 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.
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