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Abortion Safe Harbor

Editor’s note: this sample legislation is based on CT HB 5414, enacted in Connecticut in 2022

TEXT OF SAMPLE LEGISLATION:

An act to expand eligibility to perform abortion care to include advanced nurse practitioners, nurse midwives, and physician assistants to perform first-trimester aspiration and medication abortions. It also protects individuals from extradition who are accused of seeking or providing reproductive health care that may be criminal in other states. It ensures that no individuals involved in reproductive health care can share information related to that health care unless the patient consents in writing to the disclosure. Further, the bill prohibits state agencies and health care providers from assisting in out-of-state investigations/prosecutions of reproductive health care. Anyone who is sued in another state regarding their involvement in reproductive health services that are legal in Connecticut can recover certain costs they incurred from defending themselves.

AN ACT CONCERNING THE PROVISION OF PROTECTIONS FOR PERSONS RECEIVING AND PROVIDING REPRODUCTIVE HEALTH CARE SERVICES IN THE STATE AND ACCESS TO REPRODUCTIVE HEALTH CARE SERVICES IN THE STATE.

SECTION 1. 

(a) As used in this section:

(1) “Reproductive health care services” includes all medical, surgical, counseling or referral services relating to the human reproductive system, including, but not limited to, services relating to pregnancy, contraception or the termination of a pregnancy; and

(2) “Person” includes an individual, a partnership, an association, a limited liability company or a corporation.

(b) When any person has had a judgment entered against such person, in any state, where liability, in whole or in part, is based on the alleged provision, receipt, assistance in receipt or provision, material support for, or any theory of vicarious, joint, several or conspiracy liability derived therefrom, for reproductive health care services that are permitted under the laws of this state, such person may recover damages from any party that brought the action leading to that judgment or has sought to enforce that judgment. Recoverable damages shall include: (1) Just damages created by the action that led to that judgment, including, but not limited to, money damages in the amount of the judgment in that other state and costs, expenses and reasonable attorney’s fees spent in defending the action that resulted in the entry of a judgment in another state; and (2) costs, expenses and reasonable attorney’s fees incurred in bringing an action under this section as may be allowed by the court.

(c) The provisions of this section shall not apply to a judgment entered in another state that is based on: (1) An action founded in tort, contract or statute, and for which a similar claim would exist under the laws of this state, brought by the patient who received the reproductive health care services upon which the original lawsuit was based or the patient’s authorized legal representative, for damages suffered by the patient or damages derived from an individual’s loss of consortium of the patient; (2) an action founded in contract, and for which a similar claim would exist under the laws of this state, brought or sought to be enforced by a party with a contractual relationship with the person that is the subject of the judgment entered in another state; or (3) an action where no part of the acts that formed the basis for liability occurred in this state.

SECTION 2. 

(a) Except as provided in subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, no covered entity, as defined in 45 CFR 160.103, shall disclose (1) any communication made to such covered entity, or any information obtained by such covered entity from, a patient or the conservator, guardian or other authorized legal representative of a patient relating to reproductive health care services, as defined in section 1 of this act, that are permitted under the laws of this state, or (2) any information obtained by personal examination of a patient relating to reproductive health care services, as defined in section 1 of this act, that are permitted under the laws of this state, unless the patient or that patient’s conservator, guardian or other authorized legal representative explicitly consents in writing to such disclosure. A covered entity shall inform the patient or the patient’s conservator, guardian or other authorized legal representative of the patient’s right to withhold such written consent.

(b) Written consent of the patient or the patient’s conservator, guardian or other authorized legal representative shall not be required for the disclosure of such communication or information (1) pursuant to the laws of this state or the rules of court prescribed by the Judicial Branch, (2) by a covered entity against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to the covered entity’s attorney or professional liability insurer or such insurer’s agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a covered entity in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly

individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with intellectual disability is known or in good faith suspected.

(c) Nothing in this section shall be construed to impede the lawful sharing of medical records as permitted by state or federal law or the rules of the court prescribed by the Judicial Branch, except in the case of a subpoena commanding the production, copying or inspection of medical records relating to reproductive health care services, as defined in section 1 of this act.

SECTION 3. 

Notwithstanding provisions to the contrary, a judge, justice of the peace, notary public or commissioner of the Superior Court shall not issue a subpoena requested by a commissioner,  appointed according to the laws or usages of any other state or government, or by any court of the United States or of any other state or government, when such subpoena relates to reproductive health care services, as defined in section 1 of this act, that are permitted under the laws of this state, unless the subpoena relates to: (1) An out-of-state action founded in tort, contract or statute, for which a similar claim would exist under the laws of this state, brought by a patient or the patient’s authorized legal representative, for damages suffered by the patient or damages derived from an individual’s loss of consortium of the patient; or (2) an out-of-state action founded in contract, and for which a similar claim would exist under the laws of this state, brought or sought to be enforced by a party with a contractual relationship with the person that is the subject of the subpoena requested by a commissioner appointed according to the laws or usages of another State.

SECTION 4. 

No judge shall issue a summons in a case where prosecution is pending, or where a grand jury investigation has commenced or is about to commence for a criminal violation of a law of such other state involving the provision or receipt of or assistance with reproductive health care services, as defined in section 1 of this act, that are legal in this state, unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this state. 

SECTION 5. 

The Governor of this state may not surrender, on demand of the executive authority of any other state, any person found in this state who is charged in such other state with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, unless the acts for which extradition is sought would be punishable by the laws of this state, if the consequences claimed to have resulted from those acts in the demanding state had taken effect in this state. 

SECTION 6. 

No public agency or employee, appointee, officer or official or any other person acting on behalf of a public agency may provide any information or expend or use time, money, facilities, property, equipment, personnel or other resources in furtherance of any interstate investigation or proceeding seeking to impose civil or criminal liability upon a person or entity for (1) the provision, seeking or receipt of or inquiring about reproductive health care services, as defined in section 1 of this act, that are legal in this state, or (2) assisting any person or entity providing, seeking, receiving or responding to an inquiry about reproductive health care services, as defined in section 1 of this act, that are legal in this state. This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this state if committed in this state.