Whole Woman’s Health Act

Summary: The Whole Woman’s Health Act would codify in state law the fundamental right to abortion using the constitutional standards affirmed by the Supreme Court in Whole Woman’s Health v. Hellerstedt.

Findings

  1. Whereas, comprehensive reproductive health care, including safe abortion, is a vital component of a woman’s overall health and must be protected; and
  2. Whereas, access to abortion is a core component to women’s social and economic equality; and
  3. Whereas, abortion is one of the safest medical procedures in the United States. Data, including from the CDC, show that abortion has over a 99 percent safety record; and
  4. Whereas any regulation of medical care must have a legitimate purpose; and
  5. Whereas the goal of medical regulation should be to improve the quality of care and increase access care; and
  6. Whereas, more than 40 years ago, the Supreme Court held in Roe v. Wade that access to abortion is a constitutional right and that states may not prohibit abortion prior to viability;
  7. Whereas, that right has been upheld time and again by the Court, including in the 1992 case Planned Parenthood v. Casey and most recently in the landmark decision Whole Woman’s Health v. Hellerstedt, where the Court reaffirmed once again a woman’s constitutional right to access safe, legal abortion; and
  8. Whereas, in Whole Woman’s Health, the Court struck down two Texas laws designed to close abortion providers in the state which the Court concluded provided few, if any, health benefits for women; and
  9. Whereas, Justice Ruth Bader Ginsberg concluded in her concurrence that given the safety of abortion, “it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions’”; and
  10. Whereas, in Whole Woman’s Health, the Court held that the Constitution “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer”; and
  11. Whereas, in Whole Woman’s Health, the Court further held that courts, “when determining the constitutionality of laws regulating abortion procedures,” must place “considerable weight upon evidence . . . presented”; and
  12. Whereas, in Whole Woman’s Health, Justice Ruth Bader Ginsburg said in her concurrence that abortion restrictions that “do little or nothing for health, but rather strew impediments to abortion . . . cannot survive judicial inspection”; and
  13. Whereas, according to the American College of Obstetricians and Gynecologists, the American Medical Association, American Academy of Family Physicians, and the American Osteopathic Association, leading public health organizations and amici curiae for the petitioners in Whole Woman’s Health, “[w]omen’s access to high-quality, evidence-based abortion should not be limited by laws enacted under the guise of patient safety but that, in fact, harm women’s health.”; and
  14. Whereas, the 334 restrictions on abortion providers and their patients adopted nationally since 2011 [and the X restrictions in this state] that were enacted based on pretextual reasons are just a systematic attempt to eliminate access to safe and legal medical care;
  15. In accordance with the U.S. Constitution, it is therefore the intent of the Legislature to prevent the enforcement of laws or regulations that burden abortion access and do not provide legitimate health benefits.

Section 1.

Every woman has the fundamental right to choose to obtain a safe and legal abortion. The State shall not prohibit a woman from obtaining an abortion before viability. The State shall also not prohibit a woman from obtaining an abortion at any time throughout her pregnancy if the termination is necessary, in the professional judgment of a physician, to protect her life or health.

Section 2.

A law or regulation of this State on abortion that places a burden on a woman’s access to abortion is unenforceable if the law or regulation does not confer any legitimate health benefit.

a. A law or regulation places a burden on access to abortion if the law or regulation:

  1. forces abortion providers to close,
  2. increases the time a woman must wait to have an abortion,
  3. requires a meaningful increase in the distance a woman must travel to access care,
  4. requires medically unnecessary health center visits,
  5. requires a health care provider to perform a medical service that the provider would not otherwise perform,
  6. increases the risk to a woman’s health,
  7. causes a meaningful increase in procedure cost,
  8. has no purpose other than to stigmatize patients and abortion providers, or
  9. has no purpose or effect other than to decrease or eliminate access to abortion.

b. A law or regulation confers a legitimate health benefit if the law or regulation:

  1. expands women’s access to health care services, or
  2. increases patient safety, according to evidence-based research.

Section 3.

Pursuant to Sections 1 and 2, the following laws are repealed: [TK based on existing law]

Section 4.

Any state or local official who is charged with enforcing or enforces a law or regulation passed after the effective date of this Act that violates Section 1 or Section 2 shall be subject to an action in federal or state court for injunctive relief and damages. Such action may be brought by any person or entity that is or may be aggrieved by the official’s actions.

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