Pain-Capable Unborn Child Protection Act
This bill establishes a new criminal offense for performing or attempting to perform an abortion if the probable post-fertilization age of the fetus is 20 weeks or more.
A violator is subject to criminal penalties—a fine, a prison term of up to five years, or both.
The bill provides exceptions for an abortion (1) that is necessary to save the life of the pregnant woman, or (2) when the pregnancy is the result of rape or incest. A physician who performs or attempts to perform an abortion under an exception must comply with specified requirements.
A woman who undergoes a prohibited abortion may not be prosecuted for violating or conspiring to violate the provisions of this bill.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 160 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 160
To amend title 18, United States Code, to protect pain-capable unborn
children, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 16, 2019
Mr. Graham (for himself, Mr. Rubio, Mr. Barrasso, Mr. Blunt, Mr. Risch,
Mr. Lankford, Mr. Portman, Mr. Grassley, Mr. Tillis, Mr. Hoeven, Mr.
Kennedy, Mr. Crapo, Mr. Braun, Mr. Cornyn, Mr. Sasse, Mr. Inhofe, Ms.
Ernst, Mr. Boozman, Mrs. Fischer, Mr. Cramer, Mrs. Blackburn, Mr.
Rounds, Mrs. Hyde-Smith, Mr. Perdue, Mr. Moran, Mr. Sullivan, Mr.
Wicker, Mr. Young, Mr. Enzi, Mr. Burr, Mr. Cassidy, Mr. Romney, Mr.
Isakson, Mr. Johnson, Mr. Daines, Mr. Scott of South Carolina, Mr.
Roberts, Mr. Cotton, Mr. Lee, Mr. Paul, Mr. McConnell, Mr. Toomey, and
Mr. Thune) 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) 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.
``(2) Prohibition on performance of certain abortions.--
``(A) 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.
``(B) Exceptions.--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;
``(ii) the pregnancy is the result of rape
against an adult woman, and at least 48 hours
prior to the abortion--
``(I) she has obtained counseling
for the rape; or
``(II) she has obtained medical
treatment for the rape or an injury
related to the rape; or
``(iii) 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--
``(I) a government agency legally
authorized to act on reports of child
abuse; or
``(II) a law enforcement agency.
``(C) Requirement as to manner of procedure
performed.--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.
``(D) 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).
``(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:
``(i) 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.
``(ii) 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.
``(iii) 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.
``(F) Documentation requirements.--
``(i) 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.
``(ii) 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.
``(G) Informed consent.--
``(i) 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.
``(ii) Content of consent form.--The
Informed Consent Authorization form shall be
presented in person by the physician and shall
consist of--
``(I) a statement by the physician
indicating the probable post-
fertilization age of the pain-capable
unborn child;
``(II) 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;
``(III) 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;
``(IV) 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;
``(V) 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
``(VI) 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.
``(iii) Signatories required.--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.
``(iv) 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.
``(H) 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.
``(I) Additional exceptions and requirements.--
``(i) 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--
``(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.
``(ii) 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).
``(iii) 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.
``(iv) Compliance with certain state
laws.--
``(I) 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.
``(II) 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.
``(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) Civil Remedies.--
``(1) 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.
``(2) 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.
``(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;
``(B) statutory damages equal to three times the
cost of the abortion; and
``(C) punitive damages.
``(4) 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.
``(5) 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.
``(6) 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.
``(f) Data Collection.--
``(1) Data submissions.--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.
``(2) 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):
``(A) the probable post-fertilization age of the
unborn child;
``(B) the method used to carry out the abortion;
``(C) the location where the abortion was
conducted;
``(D) the exception under subsection (b)(2)(B)
under which the abortion was conducted; and
``(E) any incident of live birth resulting from the
abortion.
``(3) 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).
``(4) Public report.--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.
``(g) 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.--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) Counseling.--The term `counseling' means counseling
provided by a counselor licensed by the State, or a victims
rights advocate provided by a law enforcement agency.
``(4) Facility.--The term `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.
``(5) Fertilization.--The term `fertilization' means the
fusion of human spermatozoon with a human ovum.
``(6) Medical treatment.--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.
``(7) Minor.--The term `minor' means an individual who has
not attained the age of 18 years.
``(8) 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.
``(9) 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.
``(10) 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.
``(11) 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.
``(12) 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.
``(13) 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.
``(14) 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 to read as follows:
``74. Abortions............................................ 1531''.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
Committee on the Judiciary. Hearings held.
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