Democrats’ Bill to Codify Federal Abortion Rights Before & After Fetal Viability While Preempting State Laws (H.R. 8296)

Bill Status

• 7/15/22: The House passed this bill on a 219-210 vote.

What is H.R. 8296?

This bill — known as the Women’s Health Protection Act of 2022 — would create a federal statutory right to abortion that preempts nearly all state-level restrictions and regulations on abortions. 

It would prohibit all restrictions on abortion prior to viability and permit abortions after fetal viability if a healthcare provider determines the pregnancy would pose a risk to the mother’s health. The bill doesn’t provide a definition of physical or mental health and makes no effort to distinguish between the two.

Fetal viability would be defined by the bill as whatever point at which a healthcare provider’s good-faith medical judgment finds a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support. The bill doesn’t define viability in terms of time ― be it trimester, months, or weeks of pregnancy ― and leaves that judgment solely with the healthcare provider.

The bill would permit non-doctors to perform abortions, allowing healthcare providers such as a certified nurse-midwife, nurse practitioner, or physician assistant to do so. It would also strike down state rules regarding the physical plant, equipment, staffing, or hospital transfer arrangements of abortion facilities, or the credentials or hospital privileges of personnel at such facilities.

States would be prohibited from imposing a number of limitations or requirements on abortion access, including many of those previously permitted under Roe, Casey, and other precedents prior to the Supreme Court’s ruling in Dobbs, or those currently codified under laws like the Partial-Birth Abortion Ban Act which was enacted in 2003 and upheld by the Supreme Court in 2007.

Among the state-level abortion restrictions that would be invalidated by this bill include:

• A requirement that a healthcare provider perform tests or medical procedures unless generally necessary for medically comparable procedures.
• A requirement that the same healthcare provider who performs abortions also perform specified tests, services, or procedures prior to or subsequent to the abortion. (This would include checks for a fetal heartbeat or an ultrasound.)
• A requirement that a healthcare provider offer or provide the woman seeking an abortion with medically inaccurate information in advance of or during abortion services.
• A limitation on the healthcare provider’s ability to prescribe or dispense drugs other than limitations that are generally applicable to the medical profession.
• A limitation on a healthcare provider’s ability to provide abortion services via telemedicine.
• A requirement or limitation concerning the physical plant, equipment, staffing, or hospital transfer arrangements of facilities where abortions are provided, or the credentials or hospital privileges of personnel at such facilities.
• A requirement that a patient make one or more medically unnecessary in-person visits to the provider of abortion services or to any individual or entity that doesn’t provide abortion services.
• 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. (This would include partial-birth abortions, which are banned under a federal law that was upheld by the Supreme Court.)
• A prohibition on abortion after fetal viability when, in the good-faith medical judgment of the healthcare provider, the continuation of the pregnancy would pose a risk to the pregnant woman’s life or health.
• A limitation on a healthcare provider’s ability to provide immediate abortion services when they believe, based on their good-faith medical judgment, the delay would pose a risk to the woman’s health.
• A requirement that a patient seeking abortion services at any point prior to fetal viability disclose their reason or reasons for seeking an abortion; or a limitation on abortions 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 healthcare provider’s degree of actual or constructive knowledge of such reason or reasons.

The bill may also require states to finance abortion procedures due to a prohibition on rules deemed likely to raise the cost of abortions and strike down state-level restrictions on sex-selective abortions or abortions targeting a fetus believed to have developmental disabilities.

Further, the bill would preempt the federal Religious Freedom Restoration Act and similar state-level conscience protection laws, which give religious or denominational healthcare facilities and individual healthcare workers the ability to decline to perform an abortion because it conflicts with their moral or religious views.

Additionally, this bill would instruct courts to interpret its provisions and legislative text “liberally” when it’s undergoing judicial review. 

Argument in favor

Too many states around the country are attempting to undermine women’s access to abortions and Congress needs to enact a federal law that would override state efforts to weaken abortion rights. This bill would enshrine the right to abortion prior to fetal viability and after fetal viability based on a doctor’s determination, while also eliminating restrictions inhibiting abortion access. 

Argument opposed 

Democrats’ bill would undermine the ability of states to enact abortion policies preferred by their constituents, such as those restricting abortions after a fetal heartbeat is detected or in the second or third trimester after a fetus is viable; banning sex-selective abortions or those targeting fetuses believed to have Down Syndrome; and may require taxpayer funds to finance abortions. 

Impact 

Women seeking abortions; healthcare providers; state and local governments; the federal government; and the courts.

Cost 

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Judy Chu (D-CA) reintroduced this legislation so that House Democrats could hold a vote on it in the wake of the Supreme Court’s ruling in Dobbs, which struck down the Court’s abortion precedents under Roe and Casey and upheld Mississippi’s 15-week abortion ban. Chu and the bill’s lead cosponsors issued the following statement on her bill following the Supreme Court’s ruling:

“Abortion is not only an essential part of health care — it is critical for protecting the personal freedom every person in the United States should be able to expect. Today’s decision rips away the ability of millions of people to decide what to do with their own bodies and their own families. It sets the stage to criminalize doctors, nurses, clinic staff — even pregnant people. It puts lives in danger and threatens our rights to make personal decisions about our own lives, health and futures. However, this decision is not a surprise. The Supreme Court is packed with right-wing extremists, and we saw the result of that kind of court packing today. We have legislation to permanently enshrine abortion protections into law. With lives in danger, it is now more important than ever the Senate abolish the filibuster and pass our bill, the Women’s Health Protection Act, into law. Abortion care is not just health care — it is a fundamental human right, and we will not stop fighting until that right is enshrined into federal law for every single American.”

House Rules Committee Ranking Member Tom Cole (R-OK) expressed opposition to this bill in committee, saying:

“The Democratic majority is attempting to insert a right to an abortion into federal law, preempting every state law that seeks to protect life. They want to require all states to permit abortion on demand at any time up to the point of birth. They want to outlaw commonsense restrictions, like preventing late-term abortions, preventing sex-selective abortions and preventing abortions targeting fetuses with Down Syndrome. They want to prevent states from adopting commonsense protections for the unborn, such as banning mail-order or telemedicine abortion services. And they want to limit the rights of parents by creating a cause of action for outsiders to interfere with the parent-child relationship. That would be an unconscionable state of affairs, Madam Speaker. I would remind my colleagues of the words of the Declaration of Independence: that the right to life is one of those inalienable rights endowed upon us all, including unborn children, by our Creator. I will always be proud to stand strongly in defending life, and I proudly stand in opposition to these bills today.”

The Senate has considered legislation that was very similar to this bill twice in the current Congress, and on both occasions, it failed to receive a majority in the Democrat-controlled chamber and fell well short of the 60-vote threshold needed to overcome the filibuster. It failed on a 46-48 vote in February 2022 and a 49-51 vote in May 2022. It failed to gain the support of several key moderates on the issue of abortion, including Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), and Sen. Joe Manchin (D-WV), who was the lone Democrat to oppose the bill. Manchin explained his opposition to Politico:

“They’re trying to make people believe that this is the same thing as codifying Roe v. Wade, it’s not. This is not the same. It expands abortion.”

The House previously considered a version of this bill in September 2021 when it passed on a mostly party-line vote of 218-211, with one Democrat joining all Republicans in opposition.

Tell your reps how to vote on this bill!

Media:

• Sponsoring Rep. Judy Chu (D-CA) Twitter Statement
• House Rules Committee Ranking Member Tom Cole (R-OK) Statement (Opposed)
• Bill Text
• Causes (SCOTUS Dobbs Ruling)
• Causes (Prior House Bill)
• Causes (Senate Vote May 2022)
• Causes (Senate Vote February 2022)

Summary by Eric Revell

(Photo Credit: iStock.com / Joel Carillet)