Born-Alive Abortion Survivors Protection Act

II 117TH CONGRESS 1ST SESSION S. 123 To amend title 18, United States Code, to prohibit a health care practitioner from failing to exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion. IN THE SENATE OF THE UNITED STATES JANUARY 28, 2021 Mr. SASSE (for himself, Mr. BARRASSO, Mrs. BLACKBURN, Mr. BLUNT, Mr. BOOZMAN, Mr. BRAUN, Mr. BURR, Mr. CASSIDY, Mr. CORNYN, Mr. COT- TON, Mr. CRAMER, Mr. CRAPO, Mr. CRUZ, Mr. DAINES, Ms. ERNST, Mrs. FISCHER, Mr. GRAHAM, Mr. GRASSLEY, Mr. HAGERTY, Mr. HAWLEY, Mr. HOEVEN, Mrs. HYDE-SMITH, Mr. INHOFE, Mr. JOHNSON, Mr. KEN- NEDY, Mr. LANKFORD, Mr. LEE, Ms. LUMMIS, Mr. MARSHALL, Mr. MCCONNELL, Mr. MORAN, Mr. PAUL, Mr. PORTMAN, Mr. RISCH, Mr. ROUNDS, Mr. ROMNEY, Mr. RUBIO, Mr. SCOTT of Florida, Mr. SCOTT of South Carolina, Mr. SHELBY, Mr. SULLIVAN, Mr. THUNE, Mr. TILLIS, Mr. TOOMEY, Mr. WICKER, and Mr. YOUNG) 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 prohibit a health care practitioner from failing to exercise the proper de- gree of care in the case of a child who survives an abortion or attempted abortion. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 123 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Born-Alive Abortion 2 Survivors Protection Act’’. 3 SEC. 2. FINDINGS. 4 Congress finds the following: 5 (1) If an abortion results in the live birth of an 6 infant, the infant is a legal person for all purposes 7 under the laws of the United States, and entitled to 8 all the protections of such laws. 9 (2) Any infant born alive after an abortion or 10 within a hospital, clinic, or other facility has the 11 same claim to the protection of the law that would 12 arise for any newborn, or for any person who comes 13 to a hospital, clinic, or other facility for screening 14 and treatment or otherwise becomes a patient within 15 its care. 16 SEC. 3. BORN-ALIVE INFANTS PROTECTION. 17 (a) REQUIREMENTS PERTAINING TO BORN-ALIVE 18 ABORTION SURVIVORS.—Chapter 74 of title 18, United 19 States Code, is amended by inserting after section 1531 20 the following: 21 ‘‘§ 1532. Requirements pertaining to born-alive abor- 22 tion survivors 23 ‘‘(a) REQUIREMENTS FOR HEALTH CARE PRACTI- 24 TIONERS.—In the case of an abortion or attempted abor- 25 tion that results in a child born alive: 26 VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 123 IS ‘‘(1) DEGREE OF CARE REQUIRED; IMMEDIATE 1 ADMISSION TO A HOSPITAL.—Any health care practi- 2 tioner present at the time the child is born alive 3 shall— 4 ‘‘(A) exercise the same degree of profes- 5 sional skill, care, and diligence to preserve the 6 life and health of the child as a reasonably dili- 7 gent and conscientious health care practitioner 8 would render to any other child born alive at 9 the same gestational age; and 10 ‘‘(B) following the exercise of skill, care, 11 and diligence required under subparagraph (A), 12 ensure that the child born alive is immediately 13 transported and admitted to a hospital. 14 ‘‘(2) MANDATORY REPORTING OF VIOLA- 15 TIONS.—A health care practitioner or any employee 16 of a hospital, a physician’s office, or an abortion 17 clinic who has knowledge of a failure to comply with 18 the requirements of paragraph (1) shall immediately 19 report the failure to an appropriate State or Federal 20 law enforcement agency, or to both. 21 ‘‘(b) PENALTIES.— 22 ‘‘(1) IN GENERAL.—Whoever violates subsection 23 (a) shall be fined under this title, imprisoned for not 24 more than 5 years, or both. 25 VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 123 IS ‘‘(2) INTENTIONAL KILLING OF CHILD BORN 1 ALIVE.—Whoever intentionally performs or attempts 2 to perform an overt act that kills a child born alive 3 described under subsection (a), shall be punished as 4 under section 1111 of this title for intentionally kill- 5 ing or attempting to kill a human being. 6 ‘‘(c) BAR TO PROSECUTION.—The mother of a child 7 born alive described under subsection (a) may not be pros- 8 ecuted for a violation of this section, an attempt to violate 9 this section, a conspiracy to violate this section, or an of- 10 fense under section 3 or 4 of this title based on such a 11 violation. 12 ‘‘(d) CIVIL REMEDIES.— 13 ‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN 14 ABORTION IS PERFORMED.—If a child is born alive 15 and there is a violation of subsection (a), the woman 16 upon whom the abortion was performed or at- 17 tempted may, in a civil action against any person 18 who committed the violation, obtain appropriate re- 19 lief. 20 ‘‘(2) APPROPRIATE RELIEF.—Appropriate relief 21 in a civil action under this subsection includes— 22 ‘‘(A) objectively verifiable money damage 23 for all injuries, psychological and physical, occa- 24 sioned by the violation of subsection (a); 25 VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 123 IS ‘‘(B) statutory damages equal to 3 times 1 the cost of the abortion or attempted abortion; 2 and 3 ‘‘(C) punitive damages. 4 ‘‘(3) ATTORNEY’S FEE FOR PLAINTIFF.—The 5 court shall award a reasonable attorney’s fee to a 6 prevailing plaintiff in a civil action under this sub- 7 section. 8 ‘‘(4) ATTORNEY’S FEE FOR DEFENDANT.—If a 9 defendant in a civil action under this subsection pre- 10 vails and the court finds that the plaintiff’s suit was 11 frivolous, the court shall award a reasonable attor- 12 ney’s fee in favor of the defendant against the plain- 13 tiff. 14 ‘‘(e) DEFINITIONS.—In this section the following 15 definitions apply: 16 ‘‘(1) ABORTION.—The term ‘abortion’ means 17 the use or prescription of any instrument, medicine, 18 drug, or any other substance or device— 19 ‘‘(A) to intentionally kill the unborn child 20 of a woman known to be pregnant; or 21 ‘‘(B) to intentionally terminate the preg- 22 nancy of a woman known to be pregnant, with 23 an intention other than— 24 VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 123 IS ‘‘(i) after viability, to produce a live 1 birth and preserve the life and health of 2 the child born alive; or 3 ‘‘(ii) to remove a dead unborn child. 4 ‘‘(2) ATTEMPT.—The term ‘attempt’, with re- 5 spect to an abortion, means conduct that, under the 6 circumstances as the actor believes them to be, con- 7 stitutes a substantial step in a course of conduct 8 planned to culminate in performing an abortion. 9 ‘‘(3) BORN ALIVE.—The term ‘born alive’ has 10 the meaning given that term in section 8 of title 1, 11 United States Code (commonly known as the ‘Born- 12 Alive Infants Protection Act’).’’. 13 (b) CONFORMING AMENDMENTS.— 14 (1) The table of sections for chapter 74 of title 15 18, United States Code, is amended by adding at 16 the end the following: 17 ‘‘1532. Requirements pertaining to born-alive abortion survivors.’’. (2) The chapter heading for chapter 74 of title 18 18, United States Code, is amended by striking 19 ‘‘PARTIAL-BIRTH ABORTIONS’’ and insert- 20 ing ‘‘ABORTIONS’’. 21 (3) The table of chapters for part I of title 18, 22 United States Code, is amended by striking the item 23 relating to chapter 74 and inserting the following: 24 ‘‘74. Abortion ....................................................................................... 1531’’. VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6211 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 123 IS SEC. 4. EFFECTIVE DATE. 1 This Act shall take effect one day after the date of 2 enactment. 3 Æ VerDate Sep 11 2014 22:42 Feb 10, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S123.IS S123 pamtmann on DSKBC07HB2PROD with BILLS