House Bill 5414


House Bill 5414, passed by the Connecticut General Assembly and signed into law by that U.S. state's Governor, Ned Lamont, on May 5, 2022, as the Reproductive Freedom Defense Act, is intended to protect abortion in the state and expand the procedure's availability. Several of its provisions are responses to the Texas Heartbeat Act, passed in late 2021 and since emulated by two other states, that would prevent enforcement in Connecticut of judgements obtained by lawsuits filed under those laws against abortion providers, patients and those who facilitate them. It also allows more non-physician providers to perform certain types of abortions, codifying a past legal opinion. The law took effect July 1.
The bill was introduced in March by Rep. Matt Blumenthal, a member of the state House from the Democratic Party, which strongly supports abortion rights nationally and enjoys a trifecta in Connecticut, with majority control of both houses of the legislature and the governor's office. Five weeks later it was passed by the House with support from most Democrats and some members of the Republican minority; the state Senate followed 10 days later. In both chambers' debates some Black female Democratic members voted in opposition; while they knew the bill would pass, they spoke of their frustration with the lack of any birth control options for young women in their communities besides abortion and the unsavory past they associated with the procedure. Lamont had promised he would sign the bill; during the week after its passage, a draft majority opinion in the U.S. Supreme Court's then pending Dobbs v. Jackson Women's Health Organization, which as it did when handed down at the end of June overturned Roe v. Wade, its 1973 decision striking down most state abortion laws, was leaked and published, giving the bill greater urgency for its supporters.

Background

Texas

, where Roe had originally been filed, and other states had been trying for several years to pass "heartbeat" bills that would ban all abortions after a fetal heartbeat can be detected, usually within six weeks of conception. This conflicts with Planned Parenthood v. Casey, a successor case to Roe, which had held that the state can regulate abortion prior to viability, roughly twice that time, only to the extent necessary to protect the health of the patient, and accordingly federal courts have barred enforcement of those laws.
In March 2021, Texas's Senate Bill 8, another heartbeat bill, allowing no exceptions even for pregnancies resulting from rape or incest, was introduced with provisions designed to prevent pre-enforcement injunctions: it allowed enforcement only through private lawsuits by private citizens who were not government employees. Since only state officials can be sued to prevent enforcement of an allegedly unconstitutional law, its supporters expected it to survive a facial court challenge.
In May of that year it passed both houses of the legislature and was signed into law by governor Greg Abbott as the Texas Heartbeat Act. On September 1 it went into effect. Lawsuits were filed in state and federal court to block it. The former resulted in a December ruling that held portions of the bill in violation of the Texas Constitution but declined to enjoin its enforcement.
The federal action, Whole Women's Health v. Jackson, sought to block enforcement before its effective date by naming several court clerks and judges as defendants on the grounds that, as state officials, they would play a role in enforcing the law. The motion for a preliminary injunction reached the U.S. Supreme Court, which held that the plaintiffs lacked standing as no actual suit against an abortion provider had yet been brought. On remand to the Fifth Circuit of Appeals, the Texas Supreme Court was asked to certify whether state medical licensing officials could be named as defendants since they might have the power to enforce sanctions against providers accused of violating the law. It said the law prohibited those officials from doing so, and without any defendants, the suit had to be dismissed.

Connecticut

Connecticut has been a national leader in both restricting and permitting abortion, dating to colonial times. In 1742 a Pomfret woman named Sarah Grosvenor died from the complications of a surgical abortion. John Hallowell, the physician believed to have performed it, and Amasa Sessions, the suitor who had allegedly impregnated her, were tried under common law for causing her death; Hallowell was convicted of a misdemeanor and Sessions acquitted of all charges. It was the first known criminal prosecution of a physician over an abortion in British America. Connecticut also became the first state to criminalize abortion in its statutes in 1821, when it made it illegal for pharmacists to sell mixtures designed to induce abortions after the fourth month of a pregnancy.
The Supreme Court's 1965 Griswold v. Connecticut decision, striking down the state's prohibition on the sale or use of contraceptives, laid the legal foundation for Roe through its recognition of an implied constitutional right to privacy. In Connecticut a large group of women filed suit in federal court for the District of Connecticut to block enforcement of the state's abortion law, which allowed the procedure only when the life of the patient was in danger. The court ruled in their favor in 1972, and after the General Assembly amended the statute to include a preamble stating its purpose in preserving life, it found that insufficient when it reviewed the statute a second time later that year, holding that a fetus is not a person within the meaning of the Fourteenth Amendment.
Roe made any appeal moot, and in the years afterwards a postmortem 1964 photograph of Gerri Santoro, a Coventry woman who died in a Norwich motel after her boyfriend attempted to perform a surgical abortion on her, became a rallying image for the national abortion rights movement. In 1990, Gov. William O'Neill, despite his personal opposition to abortion as a Catholic, signed into law a bill that had passed the General Assembly overwhelmingly, repealing Connecticut's older statutes criminalizing abortion and declaring that, prior to viability, the decision about the abortion was entirely the woman's. This ensured that even were Roe to be overturned, abortion would remain legal in Connecticut under its terms.
In the late 20th century Connecticut voters began to be seen as strongly supportive of abortion rights across party lines as the Democratic Party dominated state politics. Thomas Meskill, governor during the 1972 federal lawsuit, was the last executive to actively oppose abortion rights. The next Republican to win that post, John Rowland, supported abortion rights in office after having been opposed to them as a member of the U.S. House.
In early 2021, Connecticut Reps. Matt Blumenthal, of the state House's 147th district in the Fairfield County towns of Darien and Stamford, also son of the state's senior U.S. Senator Richard Blumenthal, and Jillian Gilchrest from the 18th district in West Hartford, also formerly the executive director of NARAL Pro-Choice Connecticut, formed the House's Reproductive Freedom Caucus out of concern that the U.S. Supreme Court's disinterest in reviewing the Texas law, and some of the justices' questions and statements during oral argument in Dobbs, indicated that Roes overturn was imminent. At a news conference held in late January by the caucus, activists, and other legislators including House Speaker Matthew Ritter, to mark the decision's 49th anniversary, Blumenthal noted that although Connecticut had long ago codified the terms of Roe into state law, "there is much more work to do to expand access to reproductive healthcare and protect our residents from other states' extreme laws. There is no time to waste: we must act now." He and Gilchrest indicated that, in consultation with the caucus, they would seek legislation that would expand access to abortion in the state, including greater Medicaid reimbursements for the procedure, allowing telehealth coverage and "policies to protect persons and practitioners and anyone seeking abortion care in Connecticut."
In the wake of the law's passage, abortion seekers went to clinics in other states, including those that do not border Texas. It was unclear whether it permitted suits against providers in other states who perform or oversee an abortion on a Texas patient, whether in person or remotely. A state legislator in Missouri introduced a bill that would specifically allow suits against providers in other states who perform abortions on Missouri women.
Blumenthal and Gilchrest introduced a bill in early March to address those concerns, based in part on a draft Columbia Law Review article exploring the possible extraterritoriality issues that would arise in the wake of Roe's overturn, and how states wishing to continue providing legal abortion could exploit them to do so. It was given the number 5414 and referred to the General Assembly's Judiciary Committee. A week later, Idaho's legislature passed a law similar to Texas's and sent it to governor Brad Little for his signature. Neighboring Washington responded with a law forbidding the state from prosecuting anyone involved in an abortion, with the intent of allowing Idaho abortion seekers to avail themselves of the procedure in Washington.

Legislation

As passed, HB 5414, seven pages long, amends the sections of the Connecticut General Statutes related to criminal procedure, evidence, particularly privileged communications and confidentiality requirements, and the state's public health law governing abortion.
After defining "reproductive health care services" and "person" for the purposes of the bill, the latter including associations, corporations and partnerships, it:
  • Allows anyone sued in another state for lawfully providing reproductive health care services in Connecticut to countersue in Connecticut the party who brought the action and recover attorney's fees incurred in both suits as well as damages equal to those awarded by the foreign court, as long as some part of the actions resulting in the first suit took place in Connecticut.
  • Prohibits any person or business involved in providing health care services from disclosing confidential personal information obtained during treatment or examination for reproductive health services legal in Connecticut without the patient's consent, with the exception of certain categories of professionals who may disclose such information in situations where they have always been allowed to, such as reasonable fear that the patient will hurt themselves or others.
  • Prohibits Connecticut's courts and their officers from issuing subpoenas related to court actions in other states over reproductive health services provided at least in part lawfully in Connecticut, or issuing orders commanding persons in Connecticut to appear in such proceedings out of state.
  • Prohibits the governor from extraditing to another state any individual accused of committing an act in that state which would be legal in Connecticut.
  • Prohibits any state agency, officials, employees or person acting on their behalf from using any public resources to assist in the investigation of such an act by foreign authorities.
  • Allows advance practice registered nurses, nurse midwives and physician's assistants to perform aspiration and medication abortions.
  • Broadens the language for those individuals pregnant and seeking an abortion from "women" to "patients".