H. R. 36
IN THE SENATE OF THE UNITED STATES
October 4, 2017
Received; read twice and referred to the Committee on the Judiciary
To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes.
This Act may be cited as the
Pain-Capable Unborn Child Protection Act.
Legislative findings and declaration of constitutional authority for enactment
Congress finds and declares the following:
Pain receptors (nociceptors) are present throughout the unborn child’s entire body and nerves link these receptors to the brain’s thalamus and subcortical plate by no later than 20 weeks after fertilization.
By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.
In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.
Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.
For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia. In the United States, surgery of this type is being performed by 20 weeks after fertilization and earlier in specialized units affiliated with children’s hospitals.
The position, asserted by some physicians, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.
Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.
In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.
The position, asserted by some commentators, that the unborn child remains in a coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child from engaging in vigorous movement in reaction to invasive surgery.
Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.
It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.
The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is intended to be separate from and independent of the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is intended to replace the other.
Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.
Pain-capable unborn child protection
Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following:
Pain-capable unborn child protection
Notwithstanding any other provision of law, it shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in subsection (b).
Requirements for Abortions
Assessment of the age of the unborn child
The physician performing or attempting the abortion shall first make a determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the pregnant woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of post-fertilization age.
Prohibition on performance of certain abortions
Generally for unborn children 20 weeks or older
Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 weeks or greater.
Subparagraph (A) does not apply if—
in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions;
the pregnancy is the result of rape against an adult woman, and at least 48 hours prior to the abortion—
she has obtained counseling for the rape; or
she has obtained medical treatment for the rape or an injury related to the rape; or
the pregnancy is a result of rape against a minor or incest against a minor, and the rape or incest has been reported at any time prior to the abortion to either—
a government agency legally authorized to act on reports of child abuse; or
a law enforcement agency.
Requirement as to manner of procedure performed
Notwithstanding the definitions of
attempt an abortion in this section, a physician terminating or attempting to terminate a pregnancy under an exception provided by subparagraph (B) may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.
Requirement that a physician trained in neonatal resuscitation be present
If, in reasonable medical judgment, the pain-capable unborn child has the potential to survive outside the womb, the physician who performs or attempts an abortion under an exception provided by subparagraph (B) shall ensure a second physician trained in neonatal resuscitation is present and prepared to provide care to the child consistent with the requirements of subparagraph (E).
Children born alive after attempted abortions
When a physician performs or attempts an abortion in accordance with this section, and the child is born alive, as defined in section 8 of title 1 (commonly known as the Born-Alive Infants Protection Act of 2002), the following shall apply:
Degree of care required
Any health care practitioner present at the time shall humanely exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to a child born alive at the same gestational age in the course of a natural birth.
Immediate admission to a hospital
Following the care required to be rendered under clause (i), the child born alive shall be immediately transported and admitted to a hospital.
Mandatory reporting of violations
A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with the requirements of this subparagraph must immediately report the failure to an appropriate State or Federal law enforcement agency or both.
Documentation pertaining to adults
A physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B)(ii) shall, prior to the abortion, place in the patient medical file documentation from a hospital licensed by the State or operated under authority of a Federal agency, a medical clinic licensed by the State or operated under authority of a Federal agency, from a personal physician licensed by the State, a counselor licensed by the State, or a victim’s rights advocate provided by a law enforcement agency that the adult woman seeking the abortion obtained medical treatment or counseling for the rape or an injury related to the rape.
Documentation pertaining to minors
A physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B)(iii) shall, prior to the abortion, place in the patient medical file documentation from a government agency legally authorized to act on reports of child abuse that the rape or incest was reported prior to the abortion; or, as an alternative, documentation from a law enforcement agency that the rape or incest was reported prior to the abortion.
Consent form required
The physician who intends to perform or attempt to perform an abortion under the provisions of subparagraph (B) may not perform any part of the abortion procedure without first obtaining a signed Informed Consent Authorization form in accordance with this subparagraph.
Content of consent form
The Informed Consent Authorization form shall be presented in person by the physician and shall consist of—
a statement by the physician indicating the probable post-fertilization age of the pain-capable unborn child;
a statement that Federal law allows abortion after 20 weeks fetal age only if the mother’s life is endangered by a physical disorder, physical illness, or physical injury, when the pregnancy was the result of rape, or an act of incest against a minor;
a statement that the abortion must be performed by the method most likely to allow the child to be born alive unless this would cause significant risk to the mother;
a statement that in any case in which an abortion procedure results in a child born alive, Federal law requires that child to be given every form of medical assistance that is provided to children spontaneously born prematurely, including transportation and admittance to a hospital;
a statement that these requirements are binding upon the physician and all other medical personnel who are subject to criminal and civil penalties and that a woman on whom an abortion has been performed may take civil action if these requirements are not followed; and
affirmation that each signer has filled out the informed consent form to the best of their knowledge and understands the information contained in the form.
The Informed Consent Authorization form shall be signed in person by the woman seeking the abortion, the physician performing or attempting to perform the abortion, and a witness.
Retention of consent form
The physician performing or attempting to perform an abortion must retain the signed informed consent form in the patient’s medical file.
Requirement for data retention
Paragraph (j)(2) of section 164.530 of title 45, Code of Federal Regulations, shall apply to documentation required to be placed in a patient’s medical file pursuant to subparagraph (F) of subsection (b)(2) and a consent form required to be retained in a patient’s medical file pursuant to subparagraph (G) of such subsection in the same manner and to the same extent as such paragraph applies to documentation required by paragraph (j)(1) of such section.
Additional exceptions and requirements
In cases of risk of death or major injury to the mother
Subparagraphs (C), (D), and (G) shall not apply if, in reasonable medical judgment, compliance with such paragraphs would pose a greater risk of—
the death of the pregnant woman; or
the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.
Exclusion of certain facilities
Notwithstanding the definitions of the terms
medical treatment and
counseling in subsection (g), the counseling or medical treatment described in subparagraph (B)(ii) may not be provided by a facility that performs abortions (unless that facility is a hospital).
Rule of construction in cases of reports to law enforcement
The requirements of subparagraph (B)(ii) do not apply if the rape has been reported at any time prior to the abortion to a law enforcement agency or Department of Defense victim assistance personnel.
Compliance with certain State laws
State laws regarding reporting of rape and incest
The physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B) shall comply with such applicable State laws that are in effect as the State’s Attorney General may designate, regarding reporting requirements in cases of rape or incest.
State laws regarding parental involvement
The physician who intends to perform an abortion on a minor under an exception provided by subparagraph (B) shall comply with any applicable State laws requiring parental involvement in a minor’s decision to have an abortion.
Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.
Bar to prosecution
A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 of this title based on such a violation.
Civil action by a woman on whom an abortion is performed
A woman upon whom an abortion has been performed or attempted in violation of any provision of this section may, in a civil action against any person who committed the violation, obtain appropriate relief.
Civil action by a parent of a minor on whom an abortion is performed
A parent of a minor upon whom an abortion has been performed or attempted under an exception provided for in subsection (b)(2)(B), and that was performed in violation of any provision of this section may, in a civil action against any person who committed the violation obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct.
Appropriate relief in a civil action under this subsection includes—
objectively verifiable money damages for all injuries, psychological and physical, occasioned by the violation;
statutory damages equal to three times the cost of the abortion; and
Attorneys fees for plaintiff
The court shall award a reasonable attorney’s fee as part of the costs to a prevailing plaintiff in a civil action under this subsection.
Attorneys fees for defendant
If a defendant in a civil action under this subsection prevails and the court finds that the plaintiff’s suit was frivolous, the court shall award a reasonable attorney’s fee in favor of the defendant against the plaintiff.
Awards against woman
Except under paragraph (5), in a civil action under this subsection, no damages, attorney’s fee or other monetary relief may be assessed against the woman upon whom the abortion was performed or attempted.
Any physician who performs or attempts an abortion described in subsection (b)(2)(B) shall annually submit a summary of all such abortions to the National Center for Health Statistics (hereinafter referred to as the
Center) not later than 60 days after the end of the calendar year in which the abortion was performed or attempted.
Contents of summary
The summary shall include the number of abortions performed or attempted on an unborn child who had a post-fertilization age of 20 weeks or more and specify the following for each abortion under subsection (b)(2)(B)—
the probable post-fertilization age of the unborn child;
the method used to carry out the abortion;
the location where the abortion was conducted;
the exception under subsection (b)(2)(B) under which the abortion was conducted; and
any incident of live birth resulting from the abortion.
Exclusions from data submissions
A summary required under this subsection shall not contain any information identifying the woman whose pregnancy was terminated and shall be submitted consistent with the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note).
The Center shall annually issue a public report providing statistics by State for the previous year compiled from all of the summaries made to the Center under this subsection. The Center shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed or attempted. The annual report shall be issued by July 1 of the calendar year following the year in which the abortions were performed or attempted.
In this section the following definitions apply:
The term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device—
to intentionally kill the unborn child of a woman known to be pregnant; or
to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than—
after viability to produce a live birth and preserve the life and health of the child born alive; or
to remove a dead unborn child.
The term attempt, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.
The term counseling means counseling provided by a counselor licensed by the State, or a victims rights advocate provided by a law enforcement agency.
facility means any medical or counseling group, center or clinic and includes the entire legal entity, including any entity that controls, is controlled by, or is under common control with such facility.
The term fertilization means the fusion of human spermatozoon with a human ovum.
The term medical treatment means treatment provided at a hospital licensed by the State or operated under authority of a Federal agency, at a medical clinic licensed by the State or operated under authority of a Federal agency, or from a personal physician licensed by the State.
minor means an individual who has not attained the age of 18 years.
The term perform, with respect to an abortion, includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.
The term physician means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.
The term post-fertilization age means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
Probable post-fertilization age of the unborn child
The term probable post-fertilization age of the unborn child means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.
Reasonable medical judgment
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.
The term unborn child means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive as defined in section 8(b) of title 1.
The term woman means a female human being whether or not she has reached the age of majority.
The table of sections at the beginning of chapter 74 of title 18, United States Code, is amended by adding at the end the following new item:
1532. Pain-capable unborn child protection.
Chapter heading amendments
Chapter heading in chapter
The chapter heading for chapter 74 of title 18, United States Code, is amended by striking
Partial-Birth Abortions and inserting
Table of chapters for part i
The item relating to chapter 74 in the table of chapters at the beginning of part I of title 18, United States Code, is amended by striking
Partial-Birth Abortions and inserting
Passed the House of Representatives October 3, 2017.
Karen L. Haas,