S2260 SCS

An Act concerning reproductive rights and amending and supplementing various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Assisted reproductive technology” shall mean the same as defined in section 3 of P.L.2018, c.18 (C.9:17-62).

“Driveway” means an entry from a public street to a public or private parking area used by a health care services facility.

“Entrance” means a door to a health care services facility that directly abuts the public sidewalk; provided, however, that if the door does not directly abut the public sidewalk, the “entrance” shall be the point at which the public sidewalk intersects with a pathway leading to the door.

“Gathering” means two or more individuals.

“Health careservices facility” includes a hospital, clinic, office, or other site that provides or seeks to provide health careservices and includes the building or structure in which the facility is located and the driveway of such building or structure.

“Impede” means to obstruct, block, detain, or render passage impossible, unsafe, or unreasonably difficult.

“Intimidate” means to place a person in reasonable apprehension of bodily harm to themselves or to another.

“Physical obstruction” means rendering ingress to or egress from a health care services facility impassable to another person, or rendering passage to or from a health care services facility unreasonably difficult or hazardous to another person.

“Reproductive health care activity” means any conduct related to providing, seeking, receiving, advising, aiding, facilitating, encouraging, referring for, assisting with, providing material support for, or inquiring about reproductive health care services that are lawful in this State. “Reproductive health care activity” shall not include any conduct that could form the basis of a civil, criminal, or administrative action under the laws of this State.

“Reproductive health care services” means all supplies, care, and services of a medical, surgical, psychiatric, therapeutic, diagnostic, mental health, behavioral health, preventative, rehabilitative, support, consultative, prescribing, or dispensing services relating to the human reproductive system, whether provided in person or by means of telehealth, in compliance with New Jersey law. “Reproductive health care services” shall include, but not be limited to, all services, care, and products relating to pregnancy, assisted reproduction technology, contraception, miscarriage management, or abortion, and all supplies, care, and services of a medical, surgical, psychiatric, therapeutic, diagnostic, mental health, behavioral health, preventative, rehabilitative, supportive, consultative, prescribing, or dispensing or supportive nature, including medication, to support a person’s alignment with their gender identity or expression and delivered or overseen in accordance with the accepted standard of care, pursuant to subparagraphs (a) and (b) of paragraph (4) of subsection b. of section 2 of P.L.2017, c.176 (C.17:48A-7ll). “Reproductive health care services” shall not include any conduct that would constitute a violation of any law of this State, and shall not include any service described in section 2 of P.L.2013, c.150 (C.45:1-55).

“Social media” means an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet website profiles or locations.

2. Section 9 of P.L.1978, c.73 (C.45:1-22) is amended to read as follows:

9. In addition or as an alternative, as the case may be, to revoking, suspending or refusing to renew any license, registration or certificate issued by it, a board may, after affording an opportunity to be heard:

a. Issue a letter of warning, reprimand, or censure with regard to any act, conduct or practice which in the judgment of the board upon consideration of all relevant facts and circumstances does not warrant the initiation of formal action;

b. Assess civil penalties in accordance with this act;

c. Order that any person violating any provision of an act or regulation administered by such board to cease and desist from future violations thereof or to take such affirmative corrective action as may be necessary with regard to any act or practice found unlawful by the board;

d. Order any person found to have violated any provision of an act or regulation administered by such board to restore to any person aggrieved by an unlawful act or practice, any moneys or property, real or personal, acquired by means of such act or practice; provided, however, no board shall order restoration in a dollar amount greater than those moneys received by a licensee or his agent or any other person violating the act or regulation administered by the board;

e. Order any person, as a condition for continued, reinstated or renewed licensure, to secure medical or such other professional treatment as may be necessary to properly discharge licensee functions;

f. Order any person, as a condition for continued, reinstated or renewed licensure, to submit to any medical or diagnostic testing and monitoring or psychological evaluation which may be required to evaluate whether continued practice may jeopardize the safety and welfare of the public;

g. Order any person, as a condition for continued, reinstated or renewed licensure, to submit to an assessment of skills to determine whether the licensee can continue to practice with reasonable skill and safety, and to take and successfully complete educational training determined by the board to be necessary;

h. Order any person, as a condition for continued, reinstated or renewed licensure, to submit to an assessment of skills to determine whether the licensee can continue to practice with reasonable skill and safety, and to submit to any supervision, monitoring or limitation on practice determined by the board to be necessary.

A board may, upon a duly verified application of the Attorney General that either provides proof of a conviction of a court of competent jurisdiction for a crime or offense involving moral turpitude or relating adversely to the regulated profession or occupation, or alleges an act or practice violating any provision of an act or regulation administered by such board, enter a temporary order suspending or limiting any license issued by the board pending plenary hearing on an administrative complaint; provided, however, no such temporary order shall be entered unless the application made to the board palpably demonstrates a clear and imminent danger to the public health, safety and welfare and notice of such application is given to the licensee affected by such order. If, upon review of the Attorney General's application, the board determines that, although no palpable demonstration of a clear and imminent danger has been made, the licensee's continued unrestricted practice pending plenary hearing may pose a risk to the public health, safety and welfare, the board may order the licensee to submit to medical or diagnostic testing and monitoring, or psychological evaluation, or an assessment of skills to determine whether the licensee can continue to practice with reasonable skill and safety.

In any administrative proceeding commenced on a complaint alleging a violation of an act or regulation administered by a board, such board may issue subpoenas to compel the attendance of witnesses or the production of books, records, or documents at the hearing on the complaint.

Notwithstanding any provision of law to the contrary, a board shall not impose any penalties pursuant to this section on the holder of a certificate, registration, or license based solely on the holder engaging in reproductive health care activity, as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2001, c.307, s.2)

3. Section 1 of P.L.2022, c.51 (C.2A:84A-22.18) is amended to read as follows:

1. As used in sections 1 and 2 of P.L.2022, c.51 (C.2A:84A-22.18 and C.2A:84A-22.19):

"Person" includes an individual, partnership, association, limited liability company, or corporation.

“Reproductive health care [services” means all medical, surgical, counseling, or referral services relating to the human reproductive system including, but not limited to, services relating to pregnancy, contraception, or termination of a pregnancy] activity” shall have the same meaning as provided in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).

a. Except as provided in sections 3 through 7 of P.L.1968, c.185 (C.2A:84A-22.3 through 2A:84A-22.7), section 1 of P.L.1970, c. 313 (C.2A:84A-22.8), section 29 of P.L.1968, c.401 (C.45:8B-29), and subsection b. of this section, in any civil action or proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a covered entity, as set forth in the medical privacy and security rules pursuant to Parts 160 and 164 of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, shall not disclose, unless the patient or that patient's conservator, guardian, or other authorized legal representative explicitly consents in writing to the disclosure:

(1) any communication made to the covered entity, or any information obtained by the covered entity from, a patient or the conservator, guardian, or other authorized legal representative of a patient relating to reproductive health care [services] activity that [are] is permitted under the laws of this State; or

(2) any information obtained by personal examination of a patient relating to reproductive health care [services] activity that [are] is permitted under the laws of this State.

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 at or before the time reproductive health care [services are] activity is rendered or at such time as the patient discloses any information relating to reproductive health care [services] activity that [have been] was previously rendered.

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 any communication or information:

(1) pursuant to the laws of this State or the Rules of Court;

(2) by a covered entity against whom a claim has been made, or there is a reasonable belief that a claim will be made, in an action or proceeding, to the covered entity's attorney or professional liability insurer or insurer's agent for use in the defense of the action or proceeding;

(3) to the Commissioner of Health, Human Services, or Banking and Insurance, or any professional licensing board operating under the authority of the Division of Consumer Affairs in the Department of Law and Public Safety for records of a patient of a covered entity in connection with an investigation of a complaint, if the records are related to the complaint; or

(4) if child abuse, abuse of an elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability is known or in good faith suspected. For the purposes of this paragraph, [the provision of or material support for] reproductive health care [services] activity that [are] is permitted under the laws of this State shall not constitute abuse.

Nothing in this subsection shall be construed to conflict with or displace any requirements or conditions for disclosure set forth under 45 C.F.R. ss.160.203 and 164.514.

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 Court.

(cf: P.L.2022, c.51, s.1)

4. Section 17 of P.L.2004, c.17 (C.17:30D-22) is amended to read as follows:

17. a. Notwithstanding any other law or regulation to the contrary, an insurer authorized to transact medical malpractice liability insurance in this State shall not increase the premium of any medical malpractice liability insurance policy based on a claim of medical negligence or malpractice against the insured if the insured is dismissed from an action alleging medical malpractice within 180 days of the filing of the last responsive pleading.

b. An insurer authorized to transact medical malpractice liability insurance in this State shall not take any adverse action, including but not limited to, loss or denial of coverage, or imposition of sanctions, fines, penalties, or rate increases, against an insured licensed, certified, or registered in this State for reproductive health care activity based on the fact that the patient receiving the service is a resident of a state where those services are illegal, or based on a revocation of an insured’s license from another state or other disciplinary action by another state that resulted solely from an insured’s reproductive health care activity, if the revocation or disciplinary action was based on a violation of the other state’s law prohibiting the reproductive health care activity.

(cf: P.L.2004, c.17, s.17)

5. (New section) a. A person is guilty of interference with reproductive health care services if the person purposely or knowingly:

(1) inflicts or attempts to inflict bodily injury on another person, with purpose to unlawfully restrict another’s access to or receipt or provision of reproductive health care services or to intimidate the person from becoming or remaining a patient, provider, volunteer, or assistant of reproductive health care services, if the conduct would cause a reasonable person to be intimidated;

(2) physically obstructs any person seeking to enter into or exit from a health care services facility, with the purpose to unlawfully restrict another’s access to or receipt or provision of reproductive health care services or to intimidate the person from becoming or remaining a patient, provider, volunteer, or assistant of reproductive health care services, if the conduct would cause a reasonable person to be intimidated;

(3) intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person or entity:

(a) because that person or entity is a reproductive health care services patient, provider, volunteer, or assistant; or

(b) in order to intimidate a person or entity, or a class of persons or entities, from becoming or remaining a patient, provider, volunteer, or assistant of reproductive health care services; or

(4) damages, defaces, or destroys the property of a person, entity, or facility, or attempts to do so, because the person, entity, or facility provides, volunteers, assists with, or receives reproductive health care services; or

(5) causes a reasonable person to suffer damage to the person’s business or personal reputation, financial harm, or pain and suffering, mental anguish, or emotional harm on the basis that the person, entity, or facility provides, volunteers, assists with, or receives reproductive health care services.

b. Interference with reproductive health care services is a crime of the fourth degree, except that:

(1) it is a crime of the third degree if the victim suffers bodily injury; and

(2) it is a crime of the second degree if the victim suffers significant bodily injury or serious bodily injury.

c. Nothing in this section shall be construed to preclude or limit in any way prosecution and conviction for any other offense including, but not limited to, prosecution and conviction for assault or aggravated assault pursuant to N.J.S.2C:12-1; terroristic threats pursuant to N.J.S.2C:12-3; stalking pursuant to section 1 of P.L.1992, c.209 (C.2C:12-10); criminal coercion pursuant to N.J.S.2C:13-5; or criminal trespass pursuant to N.J.S.2C:18-3.

6. (New section) a. A person who, in violation of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), commits an act of interference with another person’s reproductive health care services shall be liable to that aggrieved person, who may bring a civil action in the Superior Court.

b. The court may award:

(1) injunctive relief;

(2) compensatory damages in an amount not less than liquidated damages computed at the rate of $1,000 for each violation of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(3) punitive damages upon proof of willful or reckless disregard of the law;

(4) reasonable attorney’s fees and other litigation costs reasonably incurred; and

(5) any other preliminary and equitable relief as the court determines to be appropriate.

c. A conviction for a violation of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be a prerequisite for a civil action brought pursuant to this section.

d. A court may, in its discretion, permit a person aggrieved by a violation of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) to use a pseudonym in a civil action brought pursuant to the provisions of this section when reasonably required to safeguard the health, safety, or privacy of the person.

7. (New section) a. The Attorney General or a county or municipal prosecutor may bring a civil action to enjoin, on a temporary, preliminary, or permanent basis, activity that constitutes a violation of section 5 or 6 of P.L. , c. (C. ) (pending before the Legislature as this bill); for compensatory damages to persons aggrieved by the violation; and for the assessment of a civil penalty against each actor who violates section 5 or 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The civil penalty imposed on each actor shall not exceed $10,000 for a first violation, and shall not exceed $25,000 for a second or subsequent violation.

c. In imposing a civil penalty pursuant to this section, the court shall consider a prior violation of the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C., s.248, or a prior violation of a statute of another jurisdiction that would constitute a violation of the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. s.248, to be a prior violation of sections 5 or 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).

8. Section 1 of P.L.2022, c.50 (C.2A:160-14.1) is amended to read as follows:

1. Notwithstanding the provisions of N.J.S.2A:160-14, the Governor shall not surrender, on demand of the executive authority of any other state, any person who:

a. is found in this State;

b. was not in the state whose executive authority is making the demand at the time of the commission of the alleged crime and has not fled therefrom; and

c. is charged in the state whose executive authority is making the demand [with providing, receiving, assisting in providing or receiving, providing material support for, or traveling to obtain] based on reproductive health care [services that are permitted under the laws of this State] activity, as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), including on any theory of vicarious, joint, several or conspiracy liability.

[As used in this section, "reproductive health care services" means all medical, surgical, counseling, or referral services relating to the human reproductive system including, but not limited to, services relating to pregnancy, contraception, or termination of a pregnancy.]

(cf: P.L.2022, c.50, s.1)

9. Section 2 of P.L.2022, c.51 (C.2A:84A-22.19) is amended to read as follows:

2. A public entity of this State or employee, appointee, officer or official or any other person acting on behalf of a public entity shall not 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, receipt, or seeking of, or inquiring or responding to an inquiry about, reproductive health care services, as defined in section 1 of P.L.2022, c.51 (C.2A:84A-22.18), that are legal in this State; or

(2) assisting, advising, aiding, abetting, facilitating, soliciting, or conspiring with any person or entity providing, receiving, seeking, or inquiring or responding to an inquiry about ,] reproductive health care [services] activity, as defined in section 1 of [P.L.2022, c.51 (C.2A:84A-22.18), that are legal in this State] P.L. , c. (C. ) (pending before the Legislature as this bill).

This section shall not apply to any investigation or proceeding when 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. This section shall not apply if it is necessary for the agency or person to engage in conduct otherwise prohibited by this section in order to comply with a valid order issued by a court with jurisdiction over the agency or person, or to comply with applicable provisions of State or federal law.

(cf: P.L.2022, c.51, s.2)

10. (New section) With regard to a person who is charged with, or is suspected or convicted of engaging in reproductive health care activity, as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill):

a. No State or local law enforcement agency or officer shall knowingly arrest or participate in the arrest of the person, unless the person has committed an offense or other violation of the laws of this State that would subject the person to an arrest.

b. No State court, judicial officer, or court employee or clerk shall issue a subpoena pursuant to the laws of another state, in connection with a proceeding in another state, regarding the person, unless the subpoena is related to a legal proceeding for which the person would be subject to a subpoena pursuant to the laws of this State and the Rules of Court.

c. No State court or judicial officer shall issue a search warrant to search for or seize any property in connection with a proceeding in another state regarding the person, unless the warrant is related to a legal proceeding for which the person would be subject to a warrant pursuant to the laws of this State.

d. No State court, judicial officer, court employee or clerk, or authorized attorney shall issue an ex parte order for wiretapping to obtain any wire, or any oral or electronic communication in connection with a legal proceeding in another state regarding the person, unless the person would be subject to an order for wiretapping under the laws of this State.

e. No party shall submit an out-of-State summons for discovery, or a witness to provide testimony, related to an interstate investigation or proceeding that seeks to impose civil liability related to the person, unless the summons is related to a legal proceeding for which the person would be subject to prosecution or liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.

f. No person licensed pursuant to the “Private Detective Act of 1939,” P.L.1939, c.369 (C.45:19-8 et seq.), or the “Bounty Hunter Licensing Act,” P.L.2005, c.376 (C.45:19-28 et seq.) shall knowingly participate in the location or apprehension of the person.

g. This section shall apply to reproductive health care activity within this State, and reproductive health care activity in accordance with State law including, but not limited to, State law governing telemedicine and telehealth services.

11. (New section) a. A law of another state that authorizes a person or government entity to bring a prosecution, civil action, or any other legal action to deter, prevent, sanction, or punish any person engaging in reproductive health care activity is against the public policy of this State.

b. A law described in subsection a. of this section shall not be applied to any matter, case, or controversy heard in a State court or in an administrative tribunal of this State.

c. This section shall apply to reproductive health care activity within this State, and reproductive health care activity in accordance with State law including, but not limited to, State law governing telemedicine and telehealth services.

d. The provisions of this section shall not apply to an action founded upon a tort, contract, or statute under the laws of this State, or an action founded in tort, contract, or statute under the laws of another state and for which a similar claim would exist under the laws of this State including, but not limited to, an alleged act of malpractice or negligence by a person in the person’s profession or occupation.

12. (New section) a. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liberally construed to effect the purpose thereof.

b. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be severable, and if any of its provisions shall be held to be unconstitutional or otherwise invalid, the decision of the court shall not affect the validity of any of the remaining provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

13. (New section) The Commissioners of Health and Human Services shall adopt rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as may be necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill). Notwithstanding any provision of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to the contrary, the commissioners shall be authorized to adopt, immediately upon filing with the Office of Administrative Law, rules and regulations necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill). The rules and regulations adopted pursuant to this section shall be effective for a period not to exceed 18 months following the date of filing, and may thereafter be amended, adopted, or readopted by the commissioners in accordance with the requirements of P.L.1968, c.410 (C.52:14B-1 et seq.).

14. This act shall take effect immediately.