Unborn Child Pain Awareness Act of 2005 - Amends the Public Health Service Act to require an abortion provider, before beginning any abortion of a pain-capable unborn child (defined as an unborn child who has reached a probable stage of development of 20 weeks after fertilization), to: (1) make a specified statement to the pregnant woman that Congress has determined that there is substantial evidence that the process will cause the unborn child pain, and that the mother has the option of having pain-reducing drugs administered directly to the child; (2) provide to the woman an Unborn Child Pain Awareness Brochure (unless she waives receipt) and an Unborn Child Pain Awareness Decision Form; and (3) obtain on the form the woman's signature and her explicit request for or refusal of the administration of drugs to the child.
Creates an exception for certified medical emergencies.
Establishes penalties for willfully failing to comply with this Act, including civil penalties, medical license suspension, or both. Authorizes: (1) specified officials to bring suit in federal court; and (2) private rights of action by a parent or guardian of a woman who is an unemancipated minor.
Requires each state and state medical licensing authority to promulgate procedures for the revocation or suspension of a provider's license upon a court finding that the provider has violated this Act. Subjects a state that fails to implement such procedures to loss of Medicaid funding.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 51 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 51
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 24, 2005
Mr. Brownback (for himself, Mr. Alexander, Mr. Allen, Mr. Bunning, Mrs.
Dole, Mr. Isakson, Mr. Chambliss, Mr. Burns, Mr. Coburn, Mr. Coleman,
Mr. Cornyn, Mr. Crapo, Mr. DeMint, Mr. DeWine, Mr. Enzi, Mr. Graham,
Mr. Grassley, Mr. Hagel, Mr. Hatch, Mr. Inhofe, Mr. Kyl, Mr. Roberts,
Mr. Santorum, Mr. Sessions, Mr. Shelby, Mr. Talent, Mr. Thune, Mr.
Vitter, Mr. Voinovich, Mr. Martinez, Mr. Ensign, and Mr. McConnell)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unborn Child Pain Awareness Act of
2005''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) At least 20 weeks after fertilization, an unborn child
has the physical structures necessary to experience pain.
(2) There is substantial evidence that by 20 weeks after
fertilization, unborn children draw away from certain stimuli
in a manner which in an infant or an adult would be interpreted
as a response to pain.
(3) Anesthesia is routinely administered to unborn children
who have developed 20 weeks or more past fertilization who
undergo prenatal surgery.
(4) There is substantial evidence that the abortion methods
most commonly used 20 weeks after fertilization cause
substantial pain to an unborn child, whether by dismemberment,
poisoning, penetrating or crushing the skull, or other methods.
Examples of abortion methods used 20 weeks after fertilization
include, but are not limited to the following:
(A) The Dilation and Evacuation (D&E) method of
abortion is commonly performed in the second trimester
of pregnancy. In a dilation and evacuation abortion,
the unborn child's body parts are grasped at random
with a long-toothed clamp. The fetal body parts are
then torn off of the body and pulled out of the vaginal
canal. The remaining body parts are grasped and pulled
out until only the head remains. The head is then
grasped and crushed in order to remove it from the
vaginal canal.
(B) Partial-Birth Abortion is an abortion in which
the abortion practitioner delivers an unborn child's
body until only the head remains inside the womb,
punctures the back of the child's skull with a sharp
instrument, and sucks the child's brains out before
completing the delivery of the dead infant.
(5) Expert testimony confirms that by 20 weeks after
fertilization an unborn child may experience substantial pain
even if the woman herself has received local analgesic or
general anesthesia.
(6) Medical science is capable of reducing such pain
through the administration of anesthesia or other pain-reducing
drugs directly to the unborn child.
(7) There is a valid Federal Government interest in
reducing the number of events in which great pain is inflicted
on sentient creatures. Examples of this are laws governing the
use of laboratory animals and requiring pain-free methods of
slaughtering livestock, which include, but are not limited to
the following:
(A) Section 2 of the Humane Slaughter Act (7 U.S.C.
1902) states, ``No method of slaughter or handling in
connection with slaughtering shall be deemed to comply
with the public policy of the United States unless it
is humane. Either of the following two methods of
slaughtering and handling are hereby found to be
humane:
``(i) in the case of cattle, calves,
horses, mules, sheep, swine, and other
livestock, all animals are rendered insensible
to pain by a single blow or gunshot or an
electrical, chemical or other means that is
rapid and effective, before being shackled,
hoisted, thrown, cast, or cut; or
``(ii) by slaughtering in accordance with
the ritual requirements of the Jewish faith or
any other religious faith that prescribes a
method of slaughter whereby the animal suffers
loss of consciousness by anemia of the brain
caused by the simultaneous and instantaneous
severance of the carotid arteries with a sharp
instrument and handling in connection with such
slaughtering.''.
(B) Section 13(a)(3) of the Animal Welfare Act (7
U.S.C. 2143(a)(3)) sets the standards and certification
process for the humane handling, care, treatment, and
transportation of animals. This includes having
standards with respect to animals in research
facilities that include requirements--
``(i) for animal care, treatment, and
practices in experimental procedures to ensure
that animal pain and distress are minimized,
including adequate veterinary care with the
appropriate use of anesthetic, analgesic,
tranquilizing drugs, or euthanasia;
``(ii) that the principal investigator
considers alternatives to any procedure likely
to produce pain to or distress in an
experimental animal;
``(iii) in any practice which could cause
pain to animals--
``(I) that a doctor of veterinary
medicine is consulted in the planning
of such procedures;
``(II) for the use of
tranquilizers, analgesics, and
anesthetics;
``(III) for pre-surgical and post-
surgical care by laboratory workers, in
accordance with established veterinary
medical and nursing procedures;
``(IV) against the use of
paralytics without anesthesia; and
``(V) that the withholding of
tranquilizers, anesthesia, analgesia,
or euthanasia when scientifically
necessary shall continue for only the
necessary period of time;''.
(C) Section 495 of the Public Health Service Act
(42 U.S.C. 289d) directs the Secretary of Health and
Human Services, acting through the Director of the
National Institutes of Health, to establish guidelines
for research facilities as to the proper care and
treatment of animals, including the appropriate use of
tranquilizers, analgesics, and other drugs, except that
such guidelines may not prescribe methods of research.
Entities that conduct biomedical and behavioral
research with National Institutes of Health funds must
establish animal care committees which must conduct
reviews at least semi-annually and report to the
Director of such Institutes at least annually. If the
Director determines that an entity has not been
following the guidelines, the Director must give the
entity an opportunity to take corrective action, and,
if the entity does not, the Director must suspend or
revoke the grant or contract involved.
SEC. 3. 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:
``TITLE XXIX--UNBORN CHILD PAIN AWARENESS
``SEC. 2901. DEFINITIONS.
``In this title:
``(1) Abortion.--The term `abortion' means the intentional
use or prescription of any instrument, medicine, drug, or any
other substance or device to terminate the pregnancy of a woman
known to be pregnant with an intention other than to increase
the probability of a live birth, to preserve the life or health
of the child after live birth, or to remove a dead fetus.
``(2) Abortion provider.--The term `abortion provider'
means any person legally qualified to perform an abortion under
applicable Federal and State laws.
``(3) Pain-capable unborn child.--
``(A) In general.--The term `pain-capable unborn
child' means an unborn child who has reached a probable
stage of development of 20 weeks after fertilization.
``(B) Rule of construction.--Nothing in
subparagraph (A) shall be construed as a determination
or finding by Congress that pain may not in fact be
experienced by an unborn child at stages of development
prior to 20 weeks after fertilization.
``(4) Probable age of development.--The term `probable age
of development' means the duration of development after
fertilization of the unborn child at the time an abortion is
performed, as determined in the good faith judgment of the
abortion provider on the basis of examination of the unborn
child using ultrasound or other imaging technology, in addition
to information obtained by interviewing the pregnant woman.
``(5) Unborn child.--The term `unborn child' means a member
of the species homo sapiens, at any stage of development, who
is carried in the womb.
``(6) Woman.--The term `woman' means a female human being
who is capable of becoming pregnant, whether or not she has
reached the age of majority.
``SEC. 2902. REQUIREMENT OF INFORMED CONSENT.
``(a) Requirement of Compliance by Providers.--An abortion provider
performing any abortion of a pain-capable unborn child, that is in or
affecting interstate commerce, shall comply with the requirements of
this title.
``(b) Provision of Consent.--
``(1) In general.--Before any part of an abortion involving
a pain-capable unborn child begins, the abortion provider or
his or her agent shall provide the pregnant woman involved, by
telephone or in person, with the information described in
paragraph (2).
``(2) Required information.--
``(A) Oral statement.--
``(i) In general.--An abortion provider or
the provider's agent to whom paragraph (1)
applies shall make the following oral statement
to the pregnant woman (or in the case of a deaf
or non-English speaking woman, provide the
statement in a manner that she can easily
understand):
`You are considering having an abortion of an
unborn child who will have developed, at the
time of the abortion, approximately __ weeks
after fertilization. The Congress of the United
States has determined that at this stage of
development, an unborn child has the physical
structures necessary to experience pain. There
is substantial evidence that by this point,
unborn children draw away from surgical
instruments in a manner which in an infant or
an adult would be interpreted as a response to
pain. Congress finds that there is substantial
evidence that the process of being killed in an
abortion will cause the unborn child pain, even
though you receive a pain-reducing drug or
drugs. Under the Federal Unborn Child Pain
Awareness Act of 2005, you have the option of
choosing to have anesthesia or other pain-
reducing drug or drugs administered directly to
the pain-capable unborn child if you so desire.
The purpose of administering such drug or drugs
would be to reduce or eliminate the capacity of
the unborn child to experience pain during the
abortion procedure. In some cases, there may be
some additional risk to you associated with
administering such a drug.'.
``(ii) Description of risks.--After making
the statement required under clause (i), the
abortion provider may provide the woman
involved with his or her best medical judgment
on the risks of administering such anesthesia
or analgesic, if any, and the costs associated
therewith.
``(iii) Administration of anesthesia.--If
the abortion provider is not qualified or
willing to administer the anesthesia or other
pain-reducing drug in response to the request
of a pregnant woman after making the statement
required under clause (i), the provider shall--
``(I) arrange for a qualified
specialist to administer such
anesthesia or drug; or
``(II) advise the pregnant woman--
``(aa) where she may obtain
such anesthesia or other pain-
reducing drugs for the unborn
child in the course of an
abortion; or
``(bb) that the abortion
provider is unable to perform
the abortion if the woman
elects to receive anesthesia or
other pain-reducing drugs for
her unborn child.
``(iv) Rule of construction.--Nothing in
this section may be construed to impede an
abortion provider or the abortion provider's
agent from offering their own evaluation on the
capacity of the unborn child to experience
pain, the advisability of administering pain-
reducing drugs to the unborn child, or any
other matter, as long as such provider or agent
provides the required information, obtains the
woman's signature on the decision form, and
otherwise complies with the affirmative
requirements of the law.
``(B) Unborn child pain awareness brochure.--An
abortion provider to whom paragraph (1) applies shall
provide the pregnant woman with the Unborn Child Pain
Awareness Brochure (referred to in this section as the
`Brochure') to be developed by the Department of Health
and Human Services under subsection (c).
``(C) Unborn child pain awareness decision form.--
An abortion provider to whom paragraph (1) applies
shall provide the pregnant woman with the Unborn Child
Pain Awareness Decision Form (provided for under
subsection (c)) and obtain the appropriate signature of
the woman on such form.
``(c) Unborn Child Pain Awareness Brochure.--
``(1) Development.--Not later than 90 days after the date
of enactment of this title, the Secretary shall develop an
Unborn Child Pain Awareness Brochure. Such Brochure shall be
written in English and Spanish and shall contain the same
information as required under the statement under subsection
(b)(2)(A)(i), including greater detail on her option of having
a pain-reducing drug or drugs administered to the unborn child
to reduce the experience of pain by the unborn child during the
abortion. Such information shall be written in an objective and
nonjudgmental manner and be printed in a typeface large enough
to be clearly legible. The Brochure shall be made available by
the Secretary at no cost to any abortion provider.
``(2) Internet information.--The Brochure under this
section shall be available on the Internet website of the
Department of Health and Human Services at a minimum resolution
of 70 DPI (dots per inch). All pictures appearing on the
website shall be a minimum of 200x300 pixels. All letters on
the website shall be a minimum of 12 point font. All such
information and pictures shall be accessible with an industry
standard browser, requiring no additional plug-ins.
``(3) Presentation of brochure.--An abortion provider or
his or her agent shall offer to provide a pregnant woman with
the Brochure developed under paragraph (1) before any part of
an abortion of a pain-capable child begins--
``(A) through an in-person visit by the pregnant
woman;
``(B) through an e-mail attachment, from the
abortion provider or his or her agent; or
``(C) through a request to have such Brochure
mailed, by certified mail, to the woman at least 72
hours before any part of the abortion begins.
``(4) Waiver.--After the abortion provider or his or her
agent offers to provide a pregnant woman the Brochure, the
pregnant woman may waive receipt of the Brochure under this
subsection by signing the waiver form contained in the Unborn
Child Pain Awareness Decision Form.
``(5) Unborn child pain awareness decision form.--Not later
than 30 days after the date of enactment of this title, the
Secretary shall develop an Unborn Child Pain Awareness Decision
Form. To be valid, such Form shall--
``(A) with respect to the pregnant woman--
``(i) contain a statement that affirms that
the woman has received or been offered all of
the information required in subsection (b);
``(ii) require the woman to explicitly
either request or refuse the administration of
pain-reducing drugs to the unborn child;
``(iii) be signed by a pregnant woman prior
to the performance of an abortion involving a
pain-capable unborn child; and
``(B) with respect to the abortion provider--
``(i) contain a statement that the provider
has provided the woman with all of the
information required under subsection (b);
``(ii) if applicable, contain a
certification by the provider that an exception
described in section 2903 applies and the
detailed reasons for such certification; and
``(iii) be signed by the provider prior to
the performance of the abortion procedure.
``(6) Maintenance of records.--The Secretary shall
promulgate regulations relating to the period of time during
which copies of Forms under paragraph (5) shall be maintained
by abortion providers.
``SEC. 2903. EXCEPTION FOR MEDICAL EMERGENCIES.
``(a) In General.--The provisions of section 2902 shall not apply
to an abortion provider in the case of a medical emergency.
``(b) Medical Emergency Defined.--
``(1) In general.--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.
``(2) 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.
``(c) Certification.--
``(1) In general.--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.
``(2) False statements.--An abortion provider who willfully
falsifies a certification under paragraph (1) shall be subject
to all the penalties provided for under section 2904 for
failure to comply with this title.
``SEC. 2904. PENALTIES FOR FAILURE TO COMPLY.
``(a) In General.--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.
``(b) Commencement of Action.--The Attorney General, the Deputy
Attorney General, the Associate Attorney General, or any Assistant
Attorney General or United States Attorney who has been specifically
designated by the Attorney General may commence a civil action under
this section.
``(c) Certification Requirements.--At the time of the commencement
of an action under this section, the Attorney General, the Deputy
Attorney General, the Associate Attorney General, or any Assistant
Attorney General or United States Attorney who has been specifically
designated by the Attorney General to commence a civil action under
this section, shall certify to the court involved that, at least 30
calendar days prior to the filing of such action, the Attorney General,
the Deputy Attorney General, the Associate Attorney General, or any
Assistant Attorney General or United States Attorney involved--
``(1) has provided notice of the alleged violation of this
section, in writing, to the Governor or Chief Executive Officer
and Attorney General or Chief Legal Officer of the State or
political subdivision involved, as well as to the State medical
licensing board or other appropriate State agency; and
``(2) believes that such an action by the United States is
in the public interest and necessary to secure substantial
justice.
``(d) First Offense.--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 in order to effect the suspension of the
respondent's medical license in accordance with the regulations and
procedures promulgated under section 2905, or shall assess a civil
penalty against the respondent in an amount not to exceed $100,000, or
both.
``(e) Second Offense.--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 in order to effect the revocation of the respondent's medical
license in accordance with the regulations and procedures promulgated
under section 2905, or shall assess a civil penalty against the
respondent in an amount not to exceed $250,000, or both.
``(f) Hearing.--With respect to an action under this section, the
appropriate State medical licensing authority shall be given
notification of and an opportunity to be heard at a hearing to
determine the penalty to be imposed under this section.
``(g) 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 knowing
or reckless violation of this title for actual and punitive damages.
``SEC. 2905. REGULATIONS.
``A State, and the medical licensing authority of the State, shall
promulgate regulations and procedures for the revocation or suspension
of the medical license of an abortion provider upon a finding by a
court under section 2904 that the provider has violated a provision of
this title. A State that fails to implement such procedures shall be
subject to loss of funding under title XIX of the Social Security Act
(42 U.S.C. 1396 et seq.).
``SEC. 2906. PREEMPTION.
``Nothing in this title shall be construed to preempt any provision
of State law to the extent that such State law establishes, implements,
or continues in effect greater protections for unborn children from
pain than the protections provided for under this title.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
Sponsor introductory remarks on measure. (CR S512-514)
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