District of Columbia Pain-Capable Unborn Child Protection Act - Amends the federal criminal code to prohibit any person from performing or attempting to perform an abortion within the District of Columbia except in conformity with this Act's requirements.
Requires the physician to 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, 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. Makes an exception 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. Permits a physician to terminate a pregnancy under such exception only in the manner which provides the best opportunity for the unborn child to survive, unless termination of the pregnancy in that manner would pose a greater risk of the death or 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.
Prescribes penalties for violations. Bars prosecution of a woman upon whom an abortion is performed in violation of this Act, but authorizes such a woman or the father or maternal grandparent of the unborn child to obtain appropriate relief through a civil action. Provides for injunctive relief to prevent violations. Sets forth specified privacy protections in court proceedings for the woman upon whom an abortion has been performed.
Requires any physician who performs an abortion within the District to report it to the Department of Health of the District of Columbia, which shall issue annual public reports.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 886 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 886
To amend title 18, United States Code, to protect pain-capable unborn
children in the District of Columbia, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 7, 2013
Mr. Lee (for himself, Mr. Barrasso, Mr. Blunt, Mr. Boozman, Mr. Burr,
Mr. Enzi, Mr. Chambliss, Mr. Coats, Mr. Cochran, Mr. Coburn, Mr.
Cornyn, Mr. Crapo, Mr. Cruz, Mrs. Fischer, Mr. Graham, Mr. Grassley,
Mr. Hatch, Mr. Inhofe, Mr. Johanns, Mr. Johnson of Wisconsin, Mr.
McConnell, Mr. Moran, Mr. Paul, Mr. Portman, Mr. Risch, Mr. Roberts,
Mr. Rubio, Mr. Scott, Mr. Sessions, Mr. Toomey, Mr. Vitter, Mr. Wicker,
and Ms. Ayotte) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to protect pain-capable unborn
children in the District of Columbia, 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 ``District of Columbia 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.
(6) The position, asserted by some medical experts, 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.
(14) The District Council of the District of Columbia,
operating under authority delegated by Congress, repealed the
entire District law limiting abortions, effective April 29,
2004, so that in the District of Columbia, abortion is now
legal, for any reason, until the moment of birth.
(15) Article I, section 8 of the Constitution of the United
States of America provides that the Congress shall ``exercise
exclusive Legislation in all Cases whatsoever'' over the
District established as the Seat of Government of the United
States, now known as the District of Columbia. The
constitutional responsibility for the protection of pain-
capable unborn children within the Federal District resides
with the Congress.
SEC. 3. DISTRICT OF COLUMBIA 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. District of Columbia pain-capable unborn child protection
``(a) Unlawful Conduct.--Notwithstanding any other provision of
law, including any legislation of the District of Columbia under
authority delegated by Congress, it shall be unlawful for any person to
perform an abortion within the District of Columbia, 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, 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.
``(C) Notwithstanding the definitions of `abortion' and
`attempt an abortion' in this section, a physician terminating
or attempting to terminate a pregnancy under the 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 2 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 based on such a violation.
``(e) Civil Remedies.--
``(1) Civil action by woman on whom the abortion is
performed.--A woman upon whom an abortion has been performed or
attempted in violation of subsection (a), may in a civil action
against any person who engaged in the violation obtain
appropriate relief.
``(2) Civil action by relatives.--The father of an unborn
child who is the subject of an abortion performed or attempted
in violation of subsection (a), or a maternal grandparent of
the unborn child if the pregnant woman is an unemancipated
minor, may in a civil action against any person who engaged in
the violation, obtain appropriate relief, unless the pregnancy
resulted from the plaintiff's criminal conduct or the plaintiff
consented to the abortion.
``(3) Appropriate relief.--Appropriate relief in a civil
action under this subsection includes--
``(A) objectively verifiable money damages for all
injuries, psychological and physical, occasioned by the
violation of this section;
``(B) statutory damages equal to three times the
cost of the abortion; and
``(C) punitive damages.
``(4) Injunctive relief.--
``(A) In general.--A qualified plaintiff may in a
civil action obtain injunctive relief to prevent an
abortion provider from performing or attempting further
abortions in violation of this section.
``(B) Definition.--In this paragraph the term
`qualified plaintiff' means--
``(i) a woman upon whom an abortion is
performed or attempted in violation of this
section;
``(ii) any person who is the spouse,
parent, sibling or guardian of, or a current or
former licensed health care provider of, that
woman; or
``(iii) the United States Attorney for the
District of Columbia.
``(5) 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.
``(6) Attorneys fees for defendant.--If a defendant in a
civil action under this section prevails and the court finds
that the plaintiff's suit was frivolous and brought in bad
faith, the court shall also render judgment for a reasonable
attorney's fee in favor of the defendant against the plaintiff.
``(7) Awards against woman.--Except under paragraph (6), 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.
``(f) Protection of Privacy in Court Proceedings.--
``(1) In general.--Except to the extent the Constitution or
other similarly compelling reason requires, in every civil or
criminal action under this section, the court shall make such
orders as are necessary to protect the anonymity of any woman
upon whom an abortion has been performed or attempted if she
does not give her written consent to such disclosure. Such
orders may be made upon motion, but shall be made sua sponte if
not otherwise sought by a party.
``(2) Orders to parties, witnesses, and counsel.--The court
shall issue appropriate orders under paragraph (1) to the
parties, witnesses, and counsel and shall direct the sealing of
the record and exclusion of individuals from courtrooms or
hearing rooms to the extent necessary to safeguard her identity
from public disclosure. Each such order shall be accompanied by
specific written findings explaining why the anonymity of the
woman must be preserved from public disclosure, why the order
is essential to that end, how the order is narrowly tailored to
serve that interest, and why no reasonable less restrictive
alternative exists.
``(3) Pseudonym required.--In the absence of written
consent of the woman upon whom an abortion has been performed
or attempted, any party, other than a public official, who
brings an action under paragraphs (1), (2), or (4) of
subsection (e) shall do so under a pseudonym.
``(4) Limitation.--This subsection shall not be construed
to conceal the identity of the plaintiff or of witnesses from
the defendant or from attorneys for the defendant.
``(g) Reporting.--
``(1) Duty to report.--Any physician who performs or
attempts an abortion within the District of Columbia shall
report that abortion to the relevant District of Columbia
health agency (hereinafter in this section referred to as the
`health agency') on a schedule and in accordance with forms and
regulations prescribed by the health agency.
``(2) Contents of report.--The report shall include the
following:
``(A) Post-fertilization age.--For the
determination of probable post-fertilization age of the
unborn child, whether ultrasound was employed in making
the determination, and the week of probable post-
fertilization age that was determined.
``(B) Method of abortion.--Which of the following
methods or combination of methods was employed:
``(i) Dilation, dismemberment, and
evacuation of fetal parts also known as
`dilation and evacuation'.
``(ii) Intra-amniotic instillation of
saline, urea, or other substance (specify
substance) to kill the unborn child, followed
by induction of labor.
``(iii) Intracardiac or other intra-fetal
injection of digoxin, potassium chloride, or
other substance (specify substance) intended to
kill the unborn child, followed by induction of
labor.
``(iv) Partial-birth abortion, as defined
in section 1531.
``(v) Manual vacuum aspiration without
other methods.
``(vi) Electrical vacuum aspiration without
other methods.
``(vii) Abortion induced by use of
mifepristone in combination with misoprostol.
``(viii) If none of the methods described
in the other clauses of this subparagraph was
employed, whatever method was employed.
``(C) Age of woman.--The age or approximate age of
the pregnant woman.
``(D) Compliance with requirements for exception.--
The facts relied upon and the basis for any
determinations required to establish compliance with
the requirements for the exception provided by
subsection (b)(2).
``(3) Exclusions from reports.--
``(A) A report required under this subsection shall
not contain the name or the address of the woman whose
pregnancy was terminated, nor shall the report contain
any other information identifying the woman.
``(B) Such report shall contain a unique Medical
Record Number, to enable matching the report to the
woman's medical records.
``(C) Such reports shall be maintained in strict
confidence by the health agency, shall not be available
for public inspection, and shall not be made available
except--
``(i) to the United States Attorney for the
District of Columbia or that Attorney's
delegate for a criminal investigation or a
civil investigation of conduct that may violate
this section; or
``(ii) pursuant to court order in an action
under subsection (e).
``(4) Public report.--Not later than June 30 of each year
beginning after the date of enactment of this paragraph, the
health agency shall issue a public report providing statistics
for the previous calendar year compiled from all of the reports
made to the health agency under this subsection for that year
for each of the items listed in paragraph (2). The report shall
also provide the statistics for all previous calendar years
during which this section was in effect, adjusted to reflect
any additional information from late or corrected reports. The
health agency 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.
``(5) Failure to submit report.--
``(A) Late fee.--Any physician who fails to submit
a report not later than 30 days after the date that
report is due shall be subject to a late fee of $1,000
for each additional 30-day period or portion of a 30-
day period the report is overdue.
``(B) Court order to comply.--A court of competent
jurisdiction may, in a civil action commenced by the
health agency, direct any physician whose report under
this subsection is still not filed as required, or is
incomplete, more than 180 days after the date the
report was due, to comply with the requirements of this
section under penalty of civil contempt.
``(C) Disciplinary action.--Intentional or reckless
failure by any physician to comply with any requirement
of this subsection, other than late filing of a report,
constitutes sufficient cause for any disciplinary
sanction which the Health Professional Licensing
Administration of the District of Columbia determines
is appropriate, including suspension or revocation of
any license granted by the Administration.
``(6) Forms and regulations.--Not later than 90 days after
the date of the enactment of this section, the health agency
shall prescribe forms and regulations to assist in compliance
with this subsection.
``(7) Effective date of requirement.--Paragraph (1) of this
subsection takes effect with respect to all abortions performed
on and after the first day of the first calendar month
beginning after the effective date of such forms and
regulations.
``(h) 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 prematurely terminate the
pregnancy of a woman known to be pregnant, with an
intention other than to increase the probability of a
live birth or of preserving the life or health of the
child after live birth, or 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 in the District of Columbia.
``(3) Fertilization.--The term `fertilization' means the
fusion of human spermatozoon with a human ovum.
``(4) Health agency.--The term `health agency' means the
Department of Health of the District of Columbia or any
successor agency responsible for the regulation of medical
practice.
``(5) Perform.--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.
``(6) Physician.--The term `physician' means a person
licensed to practice medicine and surgery or osteopathic
medicine and surgery, or otherwise licensed to legally perform
an abortion.
``(7) 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.
``(8) 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.
``(9) 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.
``(10) 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.
``(11) Unemancipated minor.--The term `unemancipated minor'
means a minor who is subject to the control, authority, and
supervision of a parent or guardian, as determined under the
law of the State in which the minor resides.
``(12) 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. District of Columbia 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 Homeland Security and Governmental Affairs.
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