[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8814 Introduced in House (IH)]
<DOC>
117th CONGRESS
2d Session
H. R. 8814
To amend title 18, United States Code, to protect pain-capable unborn
children, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 13, 2022
Mr. Smith of New Jersey (for himself, Mrs. Fischbach, Mr. Harris, Mrs.
Cammack, Ms. Stefanik, Mr. Kelly of Pennsylvania, Mr. Jordan, Mr.
Banks, Ms. Foxx, Mrs. Hartzler, Mr. Hudson, Mr. Mooney, Mr. Mann, Mr.
Mullin, Mr. Long, Mr. McKinley, Mr. Budd, Mr. Rogers of Alabama, Mrs.
Miller-Meeks, Mr. LaMalfa, Mr. Carter of Georgia, Mr. Babin, Mrs.
Miller of Illinois, Mr. Fleischmann, Mr. Buck, Mr. Weber of Texas, Mr.
Austin Scott of Georgia, Mr. Moolenaar, Mr. Johnson of Louisiana, Mr.
Norman, Mr. Jackson, Mr. Walberg, Mr. Grothman, Mr. Dunn, Mr.
Reschenthaler, Mr. Aderholt, Mr. Stauber, Mrs. Harshbarger, Mr. Gibbs,
Mr. Moore of Alabama, Mr. Clyde, Mr. Smucker, Mr. Westerman, Mr. Rodney
Davis of Illinois, Mr. Crenshaw, Mr. Luetkemeyer, Mr. Kustoff, Mr.
LaHood, Mr. Cline, Mr. Fitzgerald, Mr. Bost, Mr. Rutherford, Mr.
Feenstra, Mr. Johnson of South Dakota, Mr. Cole, Mr. Graves of
Louisiana, Mr. Latta, Mr. Bacon, Mr. Wenstrup, Mr. Hill, Mr. Jacobs of
New York, Mr. Mast, Mrs. McClain, Mr. LaTurner, Mr. Bergman, Mr.
Lamborn, Mr. Rose, Mr. Loudermilk, Mr. Bucshon, Mr. Carter of Texas,
Mr. Emmer, Mr. Davidson, Mr. Huizenga, Mr. Hern, Mr. Hice of Georgia,
Mr. Guest, Mr. Posey, Mr. Keller, Mr. Crawford, Mr. Bishop of North
Carolina, Mr. Williams of Texas, Mr. C. Scott Franklin of Florida, Mr.
Joyce of Pennsylvania, Mrs. Miller of West Virginia, and Mrs. Hinson)
introduced the following bill; which was 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 ``Protecting Pain-Capable Unborn
Children from Late-Term Abortions Act''.
SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF CONSTITUTIONAL
AUTHORITY FOR ENACTMENT.
Congress finds and declares the following:
(1) Medical and other authorities now know more about human
prenatal development than ever before including that--
(A) an unborn child begins to move about in the
womb and reacts to touch at approximately 8 weeks
gestation;
(B) the eyes begin to form at 5 weeks gestation and
finish forming by 10 weeks gestation; eye movements can
be detected by ultrasound at 12 weeks gestation;
(C) by 8 to 9 weeks gestation, the unborn child has
detectable brain waves;
(D) at 9 weeks gestation, an unborn child's
diaphragm is developing, and he or she may even hiccup,
and he or she is beginning to move about freely in the
womb;
(E) at 9 to 11 weeks gestation, teeth as well as
external genitalia begin to form;
(F) by 10 weeks gestation all of an unborn child's
organ rudiments are formed and in place, the digestive
system and kidneys start to function at this time, and
the unborn child will show a preference for either
right handedness or left handedness;
(G) at 12 weeks gestation, an unborn child can open
and close his or her fingers, starts to make sucking
motions, senses stimulation from the world outside the
womb, and fingernails and fingerprints begin to form;
and
(H) the Supreme Court has acknowledged that, by at
least 12 weeks gestation, an unborn child has taken on
``the human form'' in all relevant aspects (Gonzales v.
Carhart, 550 U.S. 124, 160 (2007)).
(2) Pain receptors (nociceptors) begin forming at 7 weeks
gestational age. Nerves linking these pain receptors to the
brain's thalamus and subcortical plate form between 12 and 20
weeks gestational age. It is no later than 16 weeks gestational
age that the first contact occurs between the subcortical plate
and these forming fibers.
(3) In considering the use of anesthesia for invasive
medical procedures performed on the fetus, evidence has
concluded that from as early as 12 weeks, and certainly by 15
weeks gestational age onward, the fetus is extremely sensitive
to painful stimuli, making it necessary to apply adequate
analgesia and anesthesia to prevent fetal suffering.
(4) Substantial evidence indicates that neural elements,
such as the thalamus and subcortical plate, develop at specific
times during the early development of an unborn child, serve as
pain-processing structures, and are different from the neural
elements used for pain processing by adults. Recent evidence,
particularly since 2016, demonstrates that structures
responsible for pain show signs of sufficient maturation from
15 weeks of gestation and thereafter.
(5) In the unborn child, application of such painful
stimuli is associated with significant increases in stress
hormones known as the stress response.
(6) 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.
(7) 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.
(8) The assertion by some medical experts that the unborn
child is incapable of experiencing pain until a point in
pregnancy later than 24 weeks gestational age 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.
(9) Substantial evidence indicates that children born
missing the bulk of the cerebral cortex, such as those with
hydranencephaly, nevertheless experience pain.
(10) 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.
(11) The assertion of some medical experts that the unborn
child remains in a coma-like sleep state that precludes the
unborn child from 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 an unborn child with anesthesia and provide
analgesia to prevent the unborn child from engaging in vigorous
movement in reaction to invasive surgery.
(12) Consequently, there is substantial medical evidence
that an unborn child is capable of experiencing pain at least
by 15 weeks gestational age, if not earlier.
(13) Abortion carries significant physical and
psychological risks to the pregnant woman, and these physical
and psychological risks increase with gestational age.
(14) The majority of abortion procedures performed after 15
weeks gestation are dismemberment abortion procedures which
involve the use of surgical instruments to crush and tear the
unborn child apart before removing the pieces of the dead child
from the womb.
(15) Medical complications from dismemberment abortions
include, but are not limited to, pelvic infection; incomplete
abortions (retained tissue); blood clots; heavy bleeding or
hemorrhage; laceration, tear, or other injury to the cervix;
puncture, laceration, tear, or other injury to the uterus;
injury to the bowel or bladder; depression; anxiety; substance
abuse; and other emotional or psychological problems. Further,
in abortions performed after 15 weeks gestation, there is a
higher risk of requiring a hysterectomy, other reparative
surgery, or blood transfusion.
(16) Subparagraphs (J) and (K) of section 2(14) of the
Partial-Birth Abortion Ban Act of 2003 (Public Law 108-105; 117
Stat. 1202) find that a late-term abortion, such as a
dismemberment abortion, ``confuses the medical, legal, and
ethical duties of physicians to preserve and promote life, as
the physician acts directly against the physical life of a
child'' and ``undermines the public's perception of the
appropriate role of a physician''.
(17) ``The [United States Supreme] Court has given state
and federal legislatures wide discretion to pass legislation in
areas where there is medical and scientific uncertainty'' that
``the law need not give abortion doctors unfettered choice in
the course of their medical practice, nor should it elevate
their status above other physicians in the medical community,''
and that ``medical uncertainty does not foreclose the exercise
of legislative power in the abortion context any more than it
does in other contexts,'' (Gonzales v. Carhart, 550 U.S. at
124).
(18) The Supreme Court has held that ``It is time to heed
the Constitution and return the issue of abortion to the
people's elected representatives''. (Dobbs v. Jackson Women's
Health Organization, 142 S. Ct. 2228, 2243 (2022)).
(19) 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.
(20) The Supreme Court has also held that ``a law
regulating abortion, like other health and welfare laws, is
entitled to a `strong presumption of validity.' . . . It must
be sustained if there is a rational basis on which the
legislature could have thought that it would serve legitimate
state interests. . . . These legitimate interests include
respect for and preservation of prenatal life at all stages of
development . . . ; the protection of maternal health and
safety; the elimination of particularly gruesome or barbaric
medical procedures; the preservation of the integrity of the
medical profession; the mitigation of fetal pain; and the
prevention of discrimination on the basis of race, sex, or
disability.'' (Dobbs v. Jackson Women's Health Organization,
142 S. Ct. at 2239).
(21) Congress has authority to extend protection to pain-
capable unborn children under the Supreme Court's Commerce
Clause precedents and under the Constitution's grants of powers
to Congress under the Equal Protection, Due Process, and
Enforcement Clauses of the Fourteenth Amendment.
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.--Subject to subsection (g) and
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) Minimum 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 gestational 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 gestational age.
``(2) Prohibition on performance of certain abortions.--
``(A) Generally for unborn children 15 weeks or
older.--Except as provided in subparagraph (B), the
abortion shall not be performed or attempted, if the
probable gestational age, as determined under paragraph
(1), of the unborn child is 15 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' 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 gestational age
of the pain-capable unborn child;
``(II) a statement that Federal law
allows abortion after 15 weeks probable
gestational 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
pregnancy must be terminated 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.
``(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 gestational age of 15 weeks or more and specify the
following for each abortion under subsection (b)(2)(B)--
``(A) the probable gestational 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) Rule of Construction.--
``(1) Greater protection.--Nothing in this section may be
construed to pre-empt or limit any Federal, State, or local law
that provides greater protections for an unborn child than
those provided in this section.
``(2) Creating or recognizing right.--Nothing in this
section shall be construed as creating or recognizing a right
to abortion nor shall it make lawful an abortion that is
unlawful on the date of the enactment of such Act.
``(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 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) Gestational age.--The term `gestational age' means
the age of an unborn child as calculated from the first day of
the pregnant woman's last menstrual period.
``(7) 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.
``(8) Minor.--The term `minor' means an individual who has
not attained the age of 18 years.
``(9) 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.
``(10) 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.
``(11) Probable gestational age of the unborn child.--The
term `probable gestational age of the unborn child' means what,
in reasonable medical judgment, will with reasonable
probability be the gestational age at the time the abortion is
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 in the field of obstetrics,
maternal fetal medicine or neonatology who is knowledgeable
about the case and the treatment possibilities with respect to
the medical conditions involved.
``(13) State.--The term `State' means any of the several
States, the District of Columbia, or any territory or
possession of the United States.
``(14) 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.
``(15) 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 ``Unborn
Children''.
(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 ``Unborn Children''.
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