IN THE SENATE OF THE UNITED STATES
September 20, 2007
Mr. Brownback (for himself, Mr. Martinez, Mr. Coleman, Mr. Vitter, Mr. Inhofe, and Mr. Thune) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
To ensure that women seeking an abortion receive an ultrasound and the opportunity to review the ultrasound before giving informed consent to receive an abortion.
This Act may be cited as the
Ultrasound Informed Consent
Amendment to the Public Health Service Act
The Public Health Service Act (42 U.S.C. 201 et seq.) is amended by adding at the end the following:
In this title:
The term abortion means the intentional use or prescription of any instrument, medicine, drug, or any other substance or device or method to terminate the life of an unborn child, or to terminate the pregnancy of a woman known to be pregnant with an intention other than—
to produce a live birth and preserve the life and health of the child after live birth; or
to remove an ectopic pregnancy, or to remove a dead unborn child who died as the result of a spontaneous abortion, accidental trauma, or a criminal assault on the pregnant female or her unborn child.
The term abortion provider means any person legally qualified to perform an abortion under applicable Federal and State laws.
The term unborn child means a member of the species homo sapiens, at any stage of development prior to birth.
The term woman means a female human being whether or not she has reached the age of majority.
Requirement of informed consent
Requirement of Compliance by Providers
Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion, shall comply with the requirements of this title.
Performance and review of ultrasound
Prior to a woman giving informed consent to having any part of an abortion performed, the physician who is to perform the abortion, or certified technician working in conjunction with the physician, shall—
perform an obstetric ultrasound on the pregnant woman;
provide an explanation of the results of the ultrasound;
display the ultrasound images so that the pregnant woman may view them; and
provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.
No requirement To view ultrasound images
Nothing in this section shall be construed to require a woman to view the ultrasound images. Neither the physician nor the woman shall be subject to any penalty if she refuses to look at the presented ultrasound images.
Exception for medical emergencies
The provisions of section 3002 shall not apply to an abortion provider or facility in the case of a medical emergency.
Medical emergency defined
In subsection (a), the term medical emergency means a condition which, in the reasonable medical judgment of the abortion provider, so complicates the medical condition of the pregnant woman that a delay in commencing an abortion procedure would impose a serious risk of causing grave and irreversible physical health damage entailing substantial impairment of a major bodily function, not including any psychological or emotional condition or function.
Reasonable medical judgment
In paragraph (1), the term reasonable medical judgment means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
Upon a determination by an abortion provider under subsection (a) that a medical emergency exists with respect to a pregnant woman, such provider shall certify the specific medical conditions that constitute the emergency and include such certification in the medical file of the pregnant woman.
An abortion provider who willfully falsifies a certification under paragraph (1) shall be subject to all the penalties provided for under section 3004 for failure to comply with this title.
Penalties for failure to comply
An abortion provider who willfully fails to comply with the provisions of this title shall be subject to civil penalties in accordance with this section in an appropriate Federal court.
Commencement of Action
The Attorney General may commence a civil action under this section.
Upon a finding by a court that a respondent in an action commenced under this section has knowingly violated a provision of this title, the court shall notify the appropriate State medical licensing authority and shall assess a civil penalty against the respondent in an amount not to exceed $100,000.
Second and subsequent offenses
Upon a finding by a court that the respondent in an action commenced under this section has knowingly violated a provision of this title and the respondent has been found to have knowingly violated a provision of this title on a prior occasion, the court shall notify the appropriate State medical licensing authority and shall assess a civil penalty against the respondent in an amount not to exceed $250,000.
Private right of action
A pregnant woman upon whom an abortion has been performed in violation of this title, or the parent or legal guardian of such a woman if she is an unemancipated minor, may commence a civil action against the abortion provider for any willful violation of this title for actual and punitive damages.
Nothing in this Act or the amendments made by this Act shall be construed to preempt any provision of State law to the extent that such State law establishes, implements, or continues in effect greater disclosure requirements regarding abortion than those provided under this Act and the amendments made by this Act.
The provisions of this Act shall be severable. If any provision of this Act, or any application thereof, is found unconstitutional, that finding shall not affect any provision or application of the Act not so adjudicated.