Pain-Capable Unborn Child Protection Act - Amends the federal criminal code to prohibit any person from performing or attempting to perform an abortion except in conformity with this Act's requirements.
Requires the physician to first determine the probable post-fertilization age of the unborn child, or reasonably rely upon such a determination made by another physician, by making inquiries of the pregnant woman and performing such medical examinations and tests as a reasonably prudent physician would consider necessary.
Prohibits the abortion from being performed if the probable post-fertilization age of the unborn child is 20 weeks or greater, except: (1) where necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, illness, or injury, excluding psychological or emotional conditions; or (2) where the pregnancy is the result of rape, or the result of incest against a minor, if the rape has been reported at any time prior to the abortion to an appropriate law enforcement agency, or if the incest has been reported at any time prior to the abortion to an appropriate law enforcement agency or to a government agency legally authorized to act on reports of child abuse or neglect. Permits a physician to terminate a pregnancy under such an exception only in the manner that provides the best opportunity for the unborn child to survive, unless that manner would pose a greater risk than other available methods would pose of the death or substantial and irreversible physical impairment of a major bodily function, excluding psychological or emotional conditions, of the pregnant woman.
Subjects individuals who violate this Act to a fine, imprisonment for not more than five years, or both. Bars prosecution of a woman upon whom an abortion is performed in violation of this Act for violating or conspiring to violate this Act.
Defines "abortion" to mean the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally kill an unborn child or to intentionally terminate a pregnancy with an intention other than: (1) after viability, to produce a live birth and preserve the life and health of the child; or (2) to remove a dead unborn child.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1670 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 1670
To amend title 18, United States Code, to protect pain-capable unborn
children, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 7, 2013
Mr. Graham (for himself, Mr. McConnell, Mr. Cornyn, Mr. Thune, Mr.
Barrasso, Mr. Blunt, Mr. Moran, Mr. Portman, Mr. Scott, Mr. Hatch, Mr.
Grassley, Mr. Rubio, Mr. Cruz, Mr. Roberts, Mr. Inhofe, Mr. Vitter, Mr.
Hoeven, Mr. Johanns, Mr. Boozman, Mr. Crapo, Mr. Chambliss, Mr. McCain,
Mr. Enzi, Mr. Risch, Mr. Coats, Mr. Coburn, Mr. Burr, Mr. Johnson of
Wisconsin, Mr. Cochran, Mr. Wicker, Mr. Isakson, Mrs. Fischer, Mr.
Shelby, Mr. Flake, Ms. Ayotte, Mr. Sessions, and Mr. Lee) introduced
the following bill; which was read twice and referred to the Committee
on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to protect pain-capable unborn
children, and for other purposes.
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 ``Pain-Capable Unborn Child Protection
Act''.
SEC. 2. LEGISLATIVE FINDINGS.
Congress finds and declares the following:
(1) 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.
(2) 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.
(3) In the unborn child, application of such painful
stimuli is associated with significant increases in stress
hormones known as the stress response.
(4) 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.
(5) 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.
(6) 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.
(7) Substantial evidence indicates that children born
missing the bulk of the cerebral cortex, those with
hydranencephaly, nevertheless experience pain.
(8) 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.
(9) 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.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.
(a) In General.--Chapter 74 of title 18, United States Code, is
amended by inserting after section 1531 the following:
``Sec. 1532. Pain-capable unborn child protection
``(a) Unlawful Conduct.--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).
``(b) Requirements for Abortions.--
``(1) 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.
``(2)(A) 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.
``(B) Subject to subparagraph (C), subparagraph (A) does
not apply if--
``(i) 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; or
``(ii) the pregnancy is the result of rape, or the
result of incest against a minor, if the rape has been
reported at any time prior to the abortion to an
appropriate law enforcement agency, or if the incest
against a minor has been reported at any time prior to
the abortion to an appropriate law enforcement agency
or to a government agency legally authorized to act on
reports of child abuse or neglect.
``(C) Notwithstanding the definitions of `abortion' and
`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, unless, in
reasonable medical judgment, termination of the pregnancy in
that manner would pose a greater risk of--
``(i) the death of the pregnant woman; or
``(ii) the substantial and irreversible physical
impairment of a major bodily function, not including
psychological or emotional conditions, of the pregnant
woman;
than would other available methods.
``(c) Criminal Penalty.--Whoever violates subsection (a) shall be
fined under this title or imprisoned for not more than 5 years, or
both.
``(d) 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.
``(e) Definitions.--In this section the following definitions
apply:
``(1) Abortion.--The term `abortion' means the use or
prescription of any instrument, medicine, drug, or any other
substance or device--
``(A) to intentionally kill the unborn child of a
woman known to be pregnant; or
``(B) to intentionally terminate the pregnancy of a
woman known to be pregnant, with an intention other
than--
``(i) after viability to produce a live
birth and preserve the life and health of the
child born alive; or
``(ii) to remove a dead unborn child.
``(2) Attempt an abortion.--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.
``(3) Fertilization.--The term `fertilization' means the
fusion of human spermatozoon with a human ovum.
``(4) Perform.--The term `perform', with respect to an
abortion, includes induce an abortion through a medical or
chemical intervention including writing a prescription for a
drug or device intended to result in an abortion.
``(5) Physician.--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.
``(6) Post-fertilization age.--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.
``(7) 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 postfertilization age of the
unborn child at the time the abortion is planned to be
performed or induced.
``(8) 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.
``(9) Unborn child.--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.
``(10) Woman.--The term `woman' means a female human being
whether or not she has reached the age of majority.''.
(b) Clerical Amendment.--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.''.
(c) Chapter Heading Amendments.--
(1) 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
``ABORTIONS''.
(2) 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 ``Abortions''.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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