[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4840 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4840
To amend title 18, United States Code, to protect pain-capable unborn
children, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 13, 2022
Mr. Graham (for himself, Mr. Daines, and Mr. Rubio) 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 ``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 first moves about in the womb
and first 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;
(C) eye movements can be detected by ultrasound at
12 weeks gestation;
(D) by 8 to 9 weeks gestation, an unborn child has
detectable brain waves;
(E) at 9 weeks gestation--
(i) an unborn child's diaphragm is
developing, and he or she may even hiccup; and
(ii) an unborn child is beginning to move
about freely in the womb;
(F) by 9 to 11 weeks gestation, teeth as well as
external genitalia begin to form;
(G) by 10 weeks gestation--
(i) all of an unborn child's organ
rudiments are formed and in place;
(ii) the digestive system and kidneys start
to function; and
(iii) an unborn child will show a
preference for either right-handedness or left-
handedness; and
(H) at 12 weeks gestation--
(i) an unborn child can open and close his
or her fingers, starts to make sucking motions,
and senses stimulation from the world outside
the womb; and
(ii) fingernails and fingerprints begin to
form.
(2) The Supreme Court of the United States 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).
(3) Pain receptors (also known as ``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. At no later than 16
weeks gestational age, the first contact occurs between the
subcortical plate and these forming fibers.
(4) In considering the use of anesthesia for invasive
medical procedures performed on the fetus, doctors have
concluded, based on the evidence, that from as early as 12
weeks gestational age, and certainly by 15 weeks gestational
age, the fetus is extremely sensitive to painful stimuli,
making it necessary to apply adequate analgesia and anesthesia
to prevent fetal suffering.
(5) Substantial evidence indicates that neural elements,
such as the thalamus and subcortical plate, which 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
beginning at 15 weeks of gestation.
(6) In an unborn child, application of painful stimuli is
associated with significant increases in stress hormones known
as the stress response.
(7) Subjection to 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.
(8) 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.
(9) The assertion by some medical experts that an 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, provide strong
evidence for the conclusion that a functioning cortex is not
necessary to experience pain.
(10) Substantial evidence indicates that children born
missing the bulk of the cerebral cortex, such as those with
hydranencephaly, nevertheless experience pain.
(11) 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.
(12) The assertion of some medical experts that an unborn
child remains in a coma-like sleep state that precludes an
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 an unborn child from engaging in vigorous
movement in reaction to invasive surgery.
(13) 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.
(14) Abortion carries significant physical and
psychological risks to the pregnant woman, and these physical
and psychological risks increase with gestational age.
(15) 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 an
unborn child apart before removing the pieces of the dead child
from the womb.
(16) Medical complications from dismemberment abortions
include 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 a blood
transfusion.
(17) In subparagraphs (J) and (K) of section 2(14) of the
Partial-Birth Abortion Ban Act of 2003 (Public Law 108-105; 117
Stat. 1201), Congress found and declared that 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''.
(18) ``The [Supreme] Court has given state and federal
legislatures wide discretion to pass legislation in areas where
there is medical and scientific uncertainty.'' Gonzales v.
Carhart, 550 U.S. at 163. ``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.'' Gonzales v. Carhart, 550
U.S. at 163. ``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 164.
(19) The Supreme Court has held that ``[i]t 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).
(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) It is the purpose of Congress to assert a legitimate
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.
(22) Congress has authority to extend protection to pain-
capable unborn children under--
(A) the Commerce Clause of section 8 of article I
of the Constitution of the United States, as
interpreted by the Supreme Court; and
(B) the Equal Protection and Due Process Clauses of
section 1, and the Enforcement Clause of section 5, of
the 14th Amendment to the Constitution.
SEC. 3. FEDERAL MINIMUM PROTECTIONS FOR PAIN-CAPABLE UNBORN CHILDREN.
(a) In General.--Chapter 74 of title 18, United States Code, is
amended by inserting after section 1531 the following:
``Sec. 1532. Federal minimum protections for pain-capable unborn
children
``(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 probable 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--
``(I) 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
``(II) 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--
``(aa) the mother's life is
endangered by a physical
disorder, physical illness, or
physical injury; or
``(bb) the pregnancy was
the result of--
``(AA) rape; or
``(BB) 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 3 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 as provided in
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 (in this subsection 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.
``(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) Rules of Construction.--
``(1) Greater protection.--Nothing in this section may be
construed to preempt 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 to--
``(A) create or recognize a right to abortion; or
``(B) make lawful an abortion that is unlawful on
the date of enactment of this section.
``(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 a human spermatozoon with a human ovum.
``(6) Gestational age.--The term `gestational age', with
respect to an unborn child, means the age of the unborn child
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. Federal minimum protections for 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''.
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