Unborn Child Pain Awareness Act of 2011 - Amends the Public Health Service Act to require an abortion provider who knowingly performs an abortion of a pain-capable unborn child (defined as an unborn child who has reached a probable stage of development of 20 weeks or more after fertilization), to first: (1) inform the woman of the probable age of the child, (2) provide to the woman an Unborn Child Pain Awareness Brochure (unless she waives receipt), (3) provide information that pain medicine administered to the mother may not prevent pain in the child, but in some cases anesthesia or pain-reducing drugs can be administered directly to the child, (4) give the woman the provider's best medical judgment of the risks and costs of such anesthesia or analgesic, and (5) obtain the woman's signature on the Unborn Child Pain Awareness Decision Form and her explicit request for or refusal of the administration of drugs to the child. Requires the Secretary of Health and Human Services (HHS) to develop the Unborn Child Pain Awareness Brochure that includes a statement that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain and that the mother has the option of having pain-reducing drugs administered directly to the child.
Creates an exception to save the life of the mother.
Establishes civil penalties for willfully failing to comply with this Act. Authorizes: (1) the U.S. Attorney General (DOJ) to bring a civil action under this Act, and (2) private rights of action for violations of this Act.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 314 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 314
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
February 10, 2011
Mr. Johanns (for himself, Mr. Boozman, Mr. Burr, Mr. Cochran, Mr.
Crapo, Mr. Ensign, Mr. Enzi, Mr. Graham, Mr. Grassley, Mr. Hatch, Mr.
Inhofe, Mr. Isakson, Mr. Kyl, Mr. Moran, Mr. Risch, Mr. Roberts, Mr.
Thune, Mr. Vitter, and Mr. Wicker) 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
2011''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) At least by 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 after fertilization who
undergo prenatal surgery.
(4) There is substantial evidence that the abortion methods
most commonly used 20 weeks or more 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 or more after
fertilization include, but are not limited to the following:
(A) The dilation and evacuation (D and 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 with a long-
toothed clamp. The fetal body parts are then torn from
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, and as
further defined in section 1531 of title 18, United
States Code.
(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
preventing or reducing the infliction of pain 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 Act commonly known as the
Humane Slaughter Act of 1958 (Public Law 85-765; 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; and
(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 semiannually 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.
(8) There is a valid Federal Government interest in
preventing harm to developing human life at all stages.
Examples of this include regulations protecting fetal human
subjects from risks of ``harm or discomfort'' in federally
funded biomedical research, 45 C.F.R. 102(i) and 45 C.F.R.
46.201 et seq.
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 XXXIV--UNBORN CHILD PAIN AWARENESS
``SEC. 3401. 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 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--
``(A) to produce a live birth and preserve the life
and health of the child after live birth; or
``(B) 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.
``(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 or more 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 or more 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 using generally accepted medical criteria and
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
whether or not she has reached the age of majority.
``(7) Unemancipated minor.--The term `unemancipated minor'
means an individual who is not older than 18 years and who is
not emancipated under State law.
``SEC. 3402. REQUIREMENT OF INFORMED CONSENT.
``(a) Requirement of Compliance by Providers.--Any abortion
provider in or affecting interstate or foreign commerce, who knowingly
performs any abortion of a pain-capable unborn child, 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). It may not be provided by a tape recording, but
must be provided in a fashion that permits the woman to ask
questions of and receive answers from the abortion provider or
his agent. (In the case of the Unborn Child Pain Awareness
Brochure, it may be provided pursuant to subsection (c)(2) or
(c)(3)).
``(2) Required information.--
``(A) In general.--An abortion provider or the
provider's agent to whom paragraph (1) applies shall
provide the following information 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):
``(i) Age of unborn baby.--The probable age
of development of the unborn baby based on the
number of weeks since fertilization.
``(ii) Unborn child pain awareness
brochure.--An abortion provider to whom
paragraph (1) applies must 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) or with the information described in
subsection (c)(2) relating to accessing such
Brochure.
``(iii) Use of pain-preventing drugs.--
Drugs administered to the mother may not
prevent the unborn child from feeling pain, but
in some cases, anesthesia or other pain-
reducing drug or drugs can be administered
directly to the unborn child.
``(iv) Description of risks.--After
providing the information required under
clauses (i), (ii), and (iii) the abortion
provider shall provide the woman involved with
his or her best medical judgment on the risks,
if any, of administering such anesthesia or
analgesic, and the costs associated therewith.
``(v) Administration of anesthesia.--If the
abortion provider is not qualified or willing
to administer the anesthesia or other pain-
reducing drug to an unborn child in response to
a request from a pregnant women, 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
requires that she receive
anesthesia or other pain-
reducing drug for her unborn
child.
``(vi) Unborn child pain awareness decision
form.--An abortion provider to which paragraph
(1) applies shall provide the pregnant woman
with the Unborn Child Pain Awareness Decision
Form (provided for under subsection (d)) and
obtain the appropriate signature of the woman
on such form.
``(vii) 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) or with the
information described in subsection (c)(2) relating to
accessing such Brochure.
``(C) Unborn child pain awareness decision form.--
An abortion provider to which paragraph (1) applies
shall provide the pregnant woman with the Unborn Child
Pain Awareness Decision Form (provided for under
subsection (d)) 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--
``(A) be written in English and Spanish;
``(B) contain the following text: `Your doctor has
determined that, in his or her best medial judgment,
your unborn child is at least 20 weeks old. There is a
significant body of evidence that unborn children at 20
weeks after fertilization have the physical structures
necessary to experience pain. There is substantial
evidence that at least 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. 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 2011, you have a right to know
that there is evidence that the process of being killed
in an abortion will cause your unborn child pain. You
may request that anesthesia or other pain-reducing drug
or drugs are 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.';
``(C) contain 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;
``(D) be written in an objective and nonjudgmental
manner and be printed in a typeface large enough to be
clearly legible; and
``(E) 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 must provide a pregnant woman with the
Brochure, developed under paragraph (1), before any part of an
abortion of a pain-capable child begins. The brochure may be
provided--
``(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) by certified mail, mailed 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, a
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.
``(d) 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--
``(1) with respect to the pregnant woman--
``(A) contain a statement that affirms that the
woman has received or been offered all of the
information required in subsection (b);
``(B) affirm that the woman has read the following
statement: `You are considering having an abortion of
an unborn child who will have developed, at the time of
the abortion, approximately __ weeks after
fertilization. There is a significant body of evidence
that unborn children at 20 weeks after fertilization
have the physical structures necessary to experience
pain. There is substantial evidence that at least 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. 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 2011,
you have a right to know that there is evidence that
the process of being killed in an abortion will cause
your unborn child pain. You may request that anesthesia
or other pain-reducing drug or drugs are 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.';
``(C) require the woman to explicitly either
request or refuse the administration of pain-reducing
drugs to the unborn child; and
``(D) be signed by a pregnant woman prior to the
performance of an abortion involving a pain-capable
unborn child; and
``(2) with respect to the abortion provider--
``(A) contain a statement that the provider has
provided the woman with all of the information required
under subsection (b);
``(B) if applicable, contain a certification by the
provider that an exception described in section 3403
applies and the detailed reasons for such
certification; and
``(C) be signed by the provider prior to the
performance of the abortion procedure.
``(e) Maintenance of Records.--The Secretary shall promulgate
regulations relating to the period of time during which copies of forms
under subsection (d) shall be maintained by abortion providers.
``SEC. 3403. EXCEPTION TO SAVE THE LIFE OF THE MOTHER.
``The provisions of section 3402 shall not apply to an abortion
provider in the case that the abortion is necessary to save the life of
a mother 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.
``SEC. 3404. 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 of the United
States may commence a civil action under this section.
``(c) 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 and shall assess a civil penalty against
the respondent in an amount not to exceed $100,000.
``(d) 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.
``(e) 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. 4. PREEMPTION.
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
protections for unborn children from pain than the protections provided
under this Act and the amendments made by this Act.
SEC. 5. SEVERABILITY.
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.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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