Pain-Capable Unborn Child Protection Act

II 117TH CONGRESS 1ST SESSION S. 61 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 27, 2021 Mr. GRAHAM (for himself, Mr. BARRASSO, Mrs. BLACKBURN, Mr. BLUNT, Mr. BOOZMAN, Mr. BRAUN, Mr. CORNYN, Mr. COTTON, Mr. CRAMER, Mr. CRAPO, Mr. CRUZ, Mr. DAINES, Ms. ERNST, Mrs. FISCHER, Mr. GRASS- LEY, Mr. HAGERTY, Mr. HAWLEY, Mr. HOEVEN, Mrs. HYDE-SMITH, Mr. INHOFE, Mr. JOHNSON, Mr. KENNEDY, Mr. LANKFORD, Ms. LUMMIS, Mr. MARSHALL, Mr. MCCONNELL, Mr. MORAN, Mr. PAUL, Mr. PORTMAN, Mr. RISCH, Mr. ROMNEY, Mr. ROUNDS, Mr. RUBIO, Mr. SASSE, Mr. SCOTT of Florida, Mr. SCOTT of South Carolina, Mr. SHELBY, Mr. SULLIVAN, Mr. THUNE, Mr. TILLIS, Mr. TOOMEY, Mr. TUBERVILLE, Mr. WICKER, Mr. YOUNG, and Mr. LEE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to protect pain- capable unborn children, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Pain-Capable Unborn 4 Child Protection Act’’. 5 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 2 •S 61 IS SEC. 2. LEGISLATIVE FINDINGS. 1 Congress finds and declares the following: 2 (1) Pain receptors (nociceptors) are present 3 throughout the unborn child’s entire body and 4 nerves link these receptors to the brain’s thalamus 5 and subcortical plate by no later than 20 weeks after 6 fertilization. 7 (2) By 8 weeks after fertilization, the unborn 8 child reacts to touch. After 20 weeks, the unborn 9 child reacts to stimuli that would be recognized as 10 painful if applied to an adult human, for example, 11 by recoiling. 12 (3) In the unborn child, application of such 13 painful stimuli is associated with significant in- 14 creases in stress hormones known as the stress re- 15 sponse. 16 (4) Subjection to such painful stimuli is associ- 17 ated with long-term harmful neurodevelopmental ef- 18 fects, such as altered pain sensitivity and, possibly, 19 emotional, behavioral, and learning disabilities later 20 in life. 21 (5) For the purposes of surgery on unborn chil- 22 dren, fetal anesthesia is routinely administered and 23 is associated with a decrease in stress hormones 24 compared to their level when painful stimuli are ap- 25 plied without such anesthesia. In the United States, 26 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 3 •S 61 IS surgery of this type is being performed by 20 weeks 1 after fertilization and earlier in specialized units af- 2 filiated with children’s hospitals. 3 (6) The position, asserted by some physicians, 4 that the unborn child is incapable of experiencing 5 pain until a point later in pregnancy than 20 weeks 6 after fertilization predominately rests on the as- 7 sumption that the ability to experience pain depends 8 on the cerebral cortex and requires nerve connec- 9 tions between the thalamus and the cortex. However, 10 recent medical research and analysis, especially since 11 2007, provides strong evidence for the conclusion 12 that a functioning cortex is not necessary to experi- 13 ence pain. 14 (7) Substantial evidence indicates that children 15 born missing the bulk of the cerebral cortex, those 16 with hydranencephaly, nevertheless experience pain. 17 (8) In adult humans and in animals, stimula- 18 tion or ablation of the cerebral cortex does not alter 19 pain perception, while stimulation or ablation of the 20 thalamus does. 21 (9) Substantial evidence indicates that struc- 22 tures used for pain processing in early development 23 differ from those of adults, using different neural 24 elements available at specific times during develop- 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 4 •S 61 IS ment, such as the subcortical plate, to fulfill the role 1 of pain processing. 2 (10) The position, asserted by some commenta- 3 tors, that the unborn child remains in a coma-like 4 sleep state that precludes the unborn child experi- 5 encing pain is inconsistent with the documented re- 6 action of unborn children to painful stimuli and with 7 the experience of fetal surgeons who have found it 8 necessary to sedate the unborn child with anesthesia 9 to prevent the unborn child from engaging in vig- 10 orous movement in reaction to invasive surgery. 11 (11) Consequently, there is substantial medical 12 evidence that an unborn child is capable of experi- 13 encing pain at least by 20 weeks after fertilization, 14 if not earlier. 15 (12) It is the purpose of the Congress to assert 16 a compelling governmental interest in protecting the 17 lives of unborn children from the stage at which sub- 18 stantial medical evidence indicates that they are ca- 19 pable of feeling pain. 20 (13) The compelling governmental interest in 21 protecting the lives of unborn children from the 22 stage at which substantial medical evidence indicates 23 that they are capable of feeling pain is intended to 24 be separate from and independent of the compelling 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 5 •S 61 IS governmental interest in protecting the lives of un- 1 born children from the stage of viability, and neither 2 governmental interest is intended to replace the 3 other. 4 SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 5 (a) IN GENERAL.—Chapter 74 of title 18, United 6 States Code, is amended by inserting after section 1531 7 the following: 8 ‘‘§ 1532. Pain-capable unborn child protection 9 ‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 10 other provision of law, it shall be unlawful for any person 11 to perform an abortion or attempt to do so, unless in con- 12 formity with the requirements set forth in subsection (b). 13 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 14 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN- 15 BORN CHILD.—The physician performing or at- 16 tempting the abortion shall first make a determina- 17 tion of the probable post-fertilization age of the un- 18 born child or reasonably rely upon such a determina- 19 tion made by another physician. In making such a 20 determination, the physician shall make such inquir- 21 ies of the pregnant woman and perform or cause to 22 be performed such medical examinations and tests 23 as a reasonably prudent physician, knowledgeable 24 about the case and the medical conditions involved, 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 6 •S 61 IS would consider necessary to make an accurate deter- 1 mination of post-fertilization age. 2 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER- 3 TAIN ABORTIONS.— 4 ‘‘(A) GENERALLY FOR UNBORN CHILDREN 5 20 WEEKS OR OLDER.—Except as provided in 6 subparagraph (B), the abortion shall not be 7 performed or attempted, if the probable post- 8 fertilization age, as determined under para- 9 graph (1), of the unborn child is 20 weeks or 10 greater. 11 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 12 does not apply if— 13 ‘‘(i) in reasonable medical judgment, 14 the abortion is necessary to save the life of 15 a pregnant woman whose life is endan- 16 gered by a physical disorder, physical ill- 17 ness, or physical injury, including a life-en- 18 dangering physical condition caused by or 19 arising from the pregnancy itself, but not 20 including psychological or emotional condi- 21 tions; 22 ‘‘(ii) the pregnancy is the result of 23 rape against an adult woman, and at least 24 48 hours prior to the abortion— 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 7 •S 61 IS ‘‘(I) she has obtained counseling 1 for the rape; or 2 ‘‘(II) she has obtained medical 3 treatment for the rape or an injury 4 related to the rape; or 5 ‘‘(iii) the pregnancy is a result of rape 6 against a minor or incest against a minor, 7 and the rape or incest has been reported at 8 any time prior to the abortion to either— 9 ‘‘(I) a government agency legally 10 authorized to act on reports of child 11 abuse; or 12 ‘‘(II) a law enforcement agency. 13 ‘‘(C) REQUIREMENT AS TO MANNER OF 14 PROCEDURE PERFORMED.—Notwithstanding 15 the definitions of ‘abortion’ and ‘attempt an 16 abortion’ in this section, a physician termi- 17 nating or attempting to terminate a pregnancy 18 under an exception provided by subparagraph 19 (B) may do so only in the manner which, in 20 reasonable medical judgment, provides the best 21 opportunity for the unborn child to survive. 22 ‘‘(D) REQUIREMENT THAT A PHYSICIAN 23 TRAINED IN NEONATAL RESUSCITATION BE 24 PRESENT.—If, in reasonable medical judgment, 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 8 •S 61 IS the pain-capable unborn child has the potential 1 to survive outside the womb, the physician who 2 performs or attempts an abortion under an ex- 3 ception provided by subparagraph (B) shall en- 4 sure a second physician trained in neonatal re- 5 suscitation is present and prepared to provide 6 care to the child consistent with the require- 7 ments of subparagraph (E). 8 ‘‘(E) CHILDREN BORN ALIVE AFTER AT- 9 TEMPTED ABORTIONS.—When a physician per- 10 forms or attempts an abortion in accordance 11 with this section, and the child is born alive, as 12 defined in section 8 of title 1 (commonly known 13 as the Born-Alive Infants Protection Act of 14 2002), the following shall apply: 15 ‘‘(i) DEGREE OF CARE REQUIRED.— 16 Any health care practitioner present at the 17 time shall humanely exercise the same de- 18 gree of professional skill, care, and dili- 19 gence to preserve the life and health of the 20 child as a reasonably diligent and conscien- 21 tious health care practitioner would render 22 to a child born alive at the same gesta- 23 tional age in the course of a natural birth. 24 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 9 •S 61 IS ‘‘(ii) IMMEDIATE ADMISSION TO A 1 HOSPITAL.—Following the care required to 2 be rendered under clause (i), the child born 3 alive shall be immediately transported and 4 admitted to a hospital. 5 ‘‘(iii) MANDATORY REPORTING OF 6 VIOLATIONS.—A health care practitioner or 7 any employee of a hospital, a physician’s 8 office, or an abortion clinic who has knowl- 9 edge of a failure to comply with the re- 10 quirements of this subparagraph must im- 11 mediately report the failure to an appro- 12 priate State or Federal law enforcement 13 agency or both. 14 ‘‘(F) DOCUMENTATION REQUIREMENTS.— 15 ‘‘(i) DOCUMENTATION PERTAINING TO 16 ADULTS.—A physician who performs or at- 17 tempts to perform an abortion under an 18 exception provided by subparagraph (B)(ii) 19 shall, prior to the abortion, place in the pa- 20 tient medical file documentation from a 21 hospital licensed by the State or operated 22 under authority of a Federal agency, a 23 medical clinic licensed by the State or op- 24 erated under authority of a Federal agen- 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 10 •S 61 IS cy, from a personal physician licensed by 1 the State, a counselor licensed by the 2 State, or a victim’s rights advocate pro- 3 vided by a law enforcement agency that the 4 adult woman seeking the abortion obtained 5 medical treatment or counseling for the 6 rape or an injury related to the rape. 7 ‘‘(ii) DOCUMENTATION PERTAINING 8 TO MINORS.—A physician who performs or 9 attempts to perform an abortion under an 10 exception provided by subparagraph 11 (B)(iii) shall, prior to the abortion, place in 12 the patient medical file documentation 13 from a government agency legally author- 14 ized to act on reports of child abuse that 15 the rape or incest was reported prior to the 16 abortion; or, as an alternative, documenta- 17 tion from a law enforcement agency that 18 the rape or incest was reported prior to the 19 abortion. 20 ‘‘(G) INFORMED CONSENT.— 21 ‘‘(i) CONSENT FORM REQUIRED.—The 22 physician who intends to perform or at- 23 tempt to perform an abortion under the 24 provisions of subparagraph (B) may not 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 11 •S 61 IS perform any part of the abortion procedure 1 without first obtaining a signed Informed 2 Consent Authorization form in accordance 3 with this subparagraph. 4 ‘‘(ii) CONTENT OF CONSENT FORM.— 5 The Informed Consent Authorization form 6 shall be presented in person by the physi- 7 cian and shall consist of— 8 ‘‘(I) a statement by the physician 9 indicating the probable post-fertiliza- 10 tion age of the pain-capable unborn 11 child; 12 ‘‘(II) a statement that Federal 13 law allows abortion after 20 weeks 14 fetal age only if the mother’s life is 15 endangered by a physical disorder, 16 physical illness, or physical injury, 17 when the pregnancy was the result of 18 rape, or an act of incest against a 19 minor; 20 ‘‘(III) a statement that the abor- 21 tion must be performed by the method 22 most likely to allow the child to be 23 born alive unless this would cause sig- 24 nificant risk to the mother; 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S61.IS S61 kjohnson on DSK79L0C42PROD with BILLS 12 •S 61 IS ‘‘(IV) a statement that in any 1 case in which an abortion procedure 2 results in a child born alive, Federal 3 law requires that child to be given 4 every form of medical assistance that 5 is provided to children spontaneously 6 born prematurely, including transpor- 7 tation and admittance to a hospital; 8 ‘‘(V) a statement that these re- 9 quirements are binding upon the phy- 10 sician and all other medical personnel 11 who are subject to criminal and civil 12 penalties and that a woman on whom 13 an abortion has been performed may 14 take civil action if these requirements 15 are not followed; and 16 ‘‘(VI) affirmation that each sign- 17 er has filled out the informed consent 18 form to the best of their knowledge 19 and understands the [Text truncated for display. 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