Pain-Capable Unborn Child Protection Act

I 116TH CONGRESS 1ST SESSION H. R. 784 To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 24, 2019 Mr. SMITH of New Jersey (for himself, Mr. LIPINSKI, Mr. HARRIS, Mrs. HARTZLER, Mr. LAMBORN, Mr. LATTA, Mr. LUETKEMEYER, Mr. MARCH- ANT, Mr. MASSIE, Mr. MCKINLEY, Mr. MEADOWS, Mr. OLSON, Mr. POSEY, Mr. SCALISE, Mr. SMITH of Missouri, Mr. STEWART, Mrs. WAG- NER, Mr. WALBERG, Mr. WENSTRUP, Mr. WITTMAN, Mr. ZELDIN, Mr. HUNTER, Mr. PALAZZO, Mr. ROUZER, Mr. ALLEN, Mr. MOONEY of West Virginia, Mrs. MILLER, Mr. HUIZENGA, Mr. GRAVES of Missouri, Mr. GRIFFITH, Mr. PERRY, Mr. AUSTIN SCOTT of Georgia, Ms. HERRERA BEUTLER, Mr. THOMPSON of Pennsylvania, Mr. COLE, Mr. TAYLOR, Mr. JONES, Mr. SIMPSON, Mr. JORDAN, Mr. SMITH of Nebraska, Mr. SMUCKER, Mrs. WALORSKI, Mr. WESTERMAN, Mr. ARRINGTON, Mr. BACON, Mr. BANKS, Mr. BRADY, Mr. CLOUD, Mr. COLLINS of Georgia, Mr. RODNEY DAVIS of Illinois, Mr. DUFFY, Mr. ESTES, Mr. FERGUSON, Mr. FORTENBERRY, Mr. GAETZ, Mr. GIANFORTE, Mr. GROTHMAN, Mr. HILL of Arkansas, Mr. HOLDING, Mr. KELLY of Pennsylvania, Mr. LAHOOD, Mrs. LESKO, Mrs. RODGERS of Washington, Mr. RUTHER- FORD, Mr. WALKER, Mr. WILLIAMS, Mr. WILSON of South Carolina, Mr. YOHO, Mr. BIGGS, Mr. BABIN, Mr. BARR, Mr. BILIRAKIS, Mr. BUCK, Mr. CRAWFORD, Mr. DUNCAN, Mr. FLORES, Ms. FOXX of North Carolina, Mr. GIBBS, Mr. GUTHRIE, Mr. AMASH, Mr. ABRAHAM, Mr. BERGMAN, Mr. BISHOP of Utah, Mr. BUDD, Ms. CHENEY, Mr. EMMER, Mr. HICE of Georgia, Mr. HIGGINS of Louisiana, Mr. HUDSON, Mr. KUSTOFF of Tennessee, Mr. LAMALFA, Mr. LOUDERMILK, Mr. MARSHALL, Mr. MITCHELL, Mr. NORMAN, Mr. PALMER, Mr. RATCLIFFE, Mr. DAVID P. ROE of Tennessee, Mr. ROONEY of Florida, Mr. CARTER of Georgia, Mr. SHIMKUS, Mr. MEUSER, Mr. ROY, Mr. RESCHENTHALER, Mr. WATKINS, Mr. STIVERS, and Mr. CONAWAY) introduced the following bill; which was referred to the Committee on the Judiciary VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 2 •HR 784 IH 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 SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 6 CONSTITUTIONAL AUTHORITY FOR ENACT- 7 MENT. 8 Congress finds and declares the following: 9 (1) Pain receptors (nociceptors) are present 10 throughout the unborn child’s entire body and 11 nerves link these receptors to the brain’s thalamus 12 and subcortical plate by no later than 20 weeks after 13 fertilization. 14 (2) By 8 weeks after fertilization, the unborn 15 child reacts to touch. After 20 weeks, the unborn 16 child reacts to stimuli that would be recognized as 17 painful if applied to an adult human, for example, 18 by recoiling. 19 (3) In the unborn child, application of such 20 painful stimuli is associated with significant in- 21 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 3 •HR 784 IH creases in stress hormones known as the stress re- 1 sponse. 2 (4) Subjection to such painful stimuli is associ- 3 ated with long-term harmful neurodevelopmental ef- 4 fects, such as altered pain sensitivity and, possibly, 5 emotional, behavioral, and learning disabilities later 6 in life. 7 (5) For the purposes of surgery on unborn chil- 8 dren, fetal anesthesia is routinely administered and 9 is associated with a decrease in stress hormones 10 compared to their level when painful stimuli are ap- 11 plied without such anesthesia. In the United States, 12 surgery of this type is being performed by 20 weeks 13 after fertilization and earlier in specialized units af- 14 filiated with children’s hospitals. 15 (6) The position, asserted by some physicians, 16 that the unborn child is incapable of experiencing 17 pain until a point later in pregnancy than 20 weeks 18 after fertilization predominately rests on the as- 19 sumption that the ability to experience pain depends 20 on the cerebral cortex and requires nerve connec- 21 tions between the thalamus and the cortex. However, 22 recent medical research and analysis, especially since 23 2007, provides strong evidence for the conclusion 24 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 4 •HR 784 IH that a functioning cortex is not necessary to experi- 1 ence pain. 2 (7) Substantial evidence indicates that children 3 born missing the bulk of the cerebral cortex, those 4 with hydranencephaly, nevertheless experience pain. 5 (8) In adult humans and in animals, stimula- 6 tion or ablation of the cerebral cortex does not alter 7 pain perception, while stimulation or ablation of the 8 thalamus does. 9 (9) Substantial evidence indicates that struc- 10 tures used for pain processing in early development 11 differ from those of adults, using different neural 12 elements available at specific times during develop- 13 ment, such as the subcortical plate, to fulfill the role 14 of pain processing. 15 (10) The position, asserted by some commenta- 16 tors, that the unborn child remains in a coma-like 17 sleep state that precludes the unborn child experi- 18 encing pain is inconsistent with the documented re- 19 action of unborn children to painful stimuli and with 20 the experience of fetal surgeons who have found it 21 necessary to sedate the unborn child with anesthesia 22 to prevent the unborn child from engaging in vig- 23 orous movement in reaction to invasive surgery. 24 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 5 •HR 784 IH (11) Consequently, there is substantial medical 1 evidence that an unborn child is capable of experi- 2 encing pain at least by 20 weeks after fertilization, 3 if not earlier. 4 (12) It is the purpose of the Congress to assert 5 a compelling governmental interest in protecting the 6 lives of unborn children from the stage at which sub- 7 stantial medical evidence indicates that they are ca- 8 pable of feeling pain. 9 (13) The compelling governmental interest in 10 protecting the lives of unborn children from the 11 stage at which substantial medical evidence indicates 12 that they are capable of feeling pain is intended to 13 be separate from and independent of the compelling 14 governmental interest in protecting the lives of un- 15 born children from the stage of viability, and neither 16 governmental interest is intended to replace the 17 other. 18 (14) Congress has authority to extend protec- 19 tion to pain-capable unborn children under the Su- 20 preme Court’s Commerce Clause precedents and 21 under the Constitution’s grants of powers to Con- 22 gress under the Equal Protection, Due Process, and 23 Enforcement Clauses of the Fourteenth Amendment. 24 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 6 •HR 784 IH SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 1 (a) IN GENERAL.—Chapter 74 of title 18, United 2 States Code, is amended by inserting after section 1531 3 the following: 4 ‘‘SEC. 1532. PAIN-CAPABLE UNBORN CHILD PROTECTION. 5 ‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 6 other provision of law, it shall be unlawful for any person 7 to perform an abortion or attempt to do so, unless in con- 8 formity with the requirements set forth in subsection (b). 9 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 10 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN- 11 BORN CHILD.—The physician performing or at- 12 tempting the abortion shall first make a determina- 13 tion of the probable post-fertilization age of the un- 14 born child or reasonably rely upon such a determina- 15 tion made by another physician. In making such a 16 determination, the physician shall make such inquir- 17 ies of the pregnant woman and perform or cause to 18 be performed such medical examinations and tests 19 as a reasonably prudent physician, knowledgeable 20 about the case and the medical conditions involved, 21 would consider necessary to make an accurate deter- 22 mination of post-fertilization age. 23 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER- 24 TAIN ABORTIONS.— 25 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 7 •HR 784 IH ‘‘(A) GENERALLY FOR UNBORN CHILDREN 1 20 WEEKS OR OLDER.—Except as provided in 2 subparagraph (B), the abortion shall not be 3 performed or attempted, if the probable post- 4 fertilization age, as determined under para- 5 graph (1), of the unborn child is 20 weeks or 6 greater. 7 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 8 does not apply if— 9 ‘‘(i) in reasonable medical judgment, 10 the abortion is necessary to save the life of 11 a pregnant woman whose life is endan- 12 gered by a physical disorder, physical ill- 13 ness, or physical injury, including a life-en- 14 dangering physical condition caused by or 15 arising from the pregnancy itself, but not 16 including psychological or emotional condi- 17 tions; 18 ‘‘(ii) the pregnancy is the result of 19 rape against an adult woman, and at least 20 48 hours prior to the abortion— 21 ‘‘(I) she has obtained counseling 22 for the rape; or 23 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 8 •HR 784 IH ‘‘(II) she has obtained medical 1 treatment for the rape or an injury 2 related to the rape; or 3 ‘‘(iii) the pregnancy is a result of rape 4 against a minor or incest against a minor, 5 and the rape or incest has been reported at 6 any time prior to the abortion to either— 7 ‘‘(I) a government agency legally 8 authorized to act on reports of child 9 abuse; or 10 ‘‘(II) a law enforcement agency. 11 ‘‘(C) REQUIREMENT AS TO MANNER OF 12 PROCEDURE PERFORMED.—Notwithstanding 13 the definitions of ‘abortion’ and ‘attempt an 14 abortion’ in this section, a physician termi- 15 nating or attempting to terminate a pregnancy 16 under an exception provided by subparagraph 17 (B) may do so only in the manner which, in 18 reasonable medical judgment, provides the best 19 opportunity for the unborn child to survive. 20 ‘‘(D) REQUIREMENT THAT A PHYSICIAN 21 TRAINED IN NEONATAL RESUSCITATION BE 22 PRESENT.—If, in reasonable medical judgment, 23 the pain-capable unborn child has the potential 24 to survive outside the womb, the physician who 25 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 9 •HR 784 IH performs or attempts an abortion under an ex- 1 ception provided by subparagraph (B) shall en- 2 sure a second physician trained in neonatal re- 3 suscitation is present and prepared to provide 4 care to the child consistent with the require- 5 ments of subparagraph (E). 6 ‘‘(E) CHILDREN BORN ALIVE AFTER AT- 7 TEMPTED ABORTIONS.—When a physician per- 8 forms or attempts an abortion in accordance 9 with this section, and the child is born alive, as 10 defined in section 8 of title 1 (commonly known 11 as the Born-Alive Infants Protection Act of 12 2002), the following shall apply: 13 ‘‘(i) DEGREE OF CARE REQUIRED.— 14 Any health care practitioner present at the 15 time shall humanely exercise the same de- 16 gree of professional skill, care, and dili- 17 gence to preserve the life and health of the 18 child as a reasonably diligent and conscien- 19 tious health care practitioner would render 20 to a child born alive at the same gesta- 21 tional age in the course of a natural birth. 22 ‘‘(ii) IMMEDIATE ADMISSION TO A 23 HOSPITAL.—Following the care required to 24 be rendered under clause (i), the child born 25 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 10 •HR 784 IH alive shall be immediately transported and 1 admitted to a hospital. 2 ‘‘(iii) MANDATORY REPORTING OF 3 VIOLATIONS.—A health care practitioner or 4 any employee of a hospital, a physician’s 5 office, or an abortion clinic who has knowl- 6 edge of a failure to comply with the re- 7 quirements of this subparagraph must im- 8 mediately report the failure to an appro- 9 priate State or Federal law enforcement 10 agency or both. 11 ‘‘(F) DOCUMENTATION REQUIREMENTS.— 12 ‘‘(i) DOCUMENTATION PERTAINING TO 13 ADULTS.—A physician who performs or at- 14 tempts to perform an abortion under an 15 exception provided by subparagraph (B)(ii) 16 shall, prior to the abortion, place in the pa- 17 tient medical file documentation from a 18 hospital licensed by the State or operated 19 under authority of a Federal agency, a 20 medical clinic licensed by the State or op- 21 erated under authority of a Federal agen- 22 cy, from a personal physician licensed by 23 the State, a counselor licensed by the 24 State, or a victim’s rights advocate pro- 25 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 11 •HR 784 IH vided by a law enforcement agency that the 1 adult woman seeking the abortion obtained 2 medical treatment or counseling for the 3 rape or an injury related to the rape. 4 ‘‘(ii) DOCUMENTATION PERTAINING 5 TO MINORS.—A physician who performs or 6 attempts to perform an abortion under an 7 exception provided by subparagraph 8 (B)(iii) shall, prior to the abortion, place in 9 the patient medical file documentation 10 from a government agency legally author- 11 ized to act on reports of child abuse that 12 the rape or incest was reported prior to the 13 abortion; or, as an alternative, documenta- 14 tion from a law enforcement agency that 15 the rape or incest was reported prior to the 16 abortion. 17 ‘‘(G) INFORMED CONSENT.— 18 ‘‘(i) CONSENT FORM REQUIRED.—The 19 physician who intends to perform or at- 20 tempt to perform an abortion under the 21 provisions of subparagraph (B) may not 22 perform any part of the abortion procedure 23 without first obtaining a signed Informed 24 VerDate Sep 11 2014 00:41 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H784.IH H784 kjohnson on DSK79L0C42 with BILLS 12 •HR 784 IH Consent Authorization form in accordance 1 with this subparagraph. 2 ‘‘(ii) CONTENT OF CONSENT FORM.— 3 The Informed Consent Authorization form 4 shall be presen [Text truncated for display. 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