Pain-Capable Unborn Child Protection Act

II Calendar No. 420 116TH CONGRESS 2D SESSION S. 3275 To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 11, 2020 Mr. MCCONNELL (for Mr. GRAHAM (for himself, Mr. RUBIO, Mr. BARRASSO, Mr. BLUNT, Mr. RISCH, Mr. LANKFORD, Mr. PORTMAN, Mr. GRASSLEY, Mr. TILLIS, Mr. HOEVEN, Mr. KENNEDY, Mr. CRAPO, Mr. BRAUN, Mr. CORNYN, Mr. SASSE, Mr. INHOFE, Ms. ERNST, Mr. BOOZMAN, Mrs. FISCHER, Mr. CRAMER, Mrs. BLACKBURN, Mr. ROUNDS, Mrs. HYDE- SMITH, Mr. PERDUE, Mr. MORAN, Mr. SULLIVAN, Mr. WICKER, Mr. YOUNG, Mr. ENZI, Mr. BURR, Mr. CASSIDY, Mr. ROMNEY, Mr. JOHN- SON, Mr. DAINES, Mr. SCOTT of South Carolina, Mr. ROBERTS, Mr. COTTON, Mr. LEE, Mr. PAUL, Mr. MCCONNELL, Mr. TOOMEY, Mr. THUNE, Mr. CRUZ, Mr. HAWLEY, Mr. SCOTT of Florida, Mrs. CAPITO, and Mr. SHELBY, and Mrs. LOEFFLER)) introduced the following bill; which was read the first time FEBRUARY 12, 2020 Read the second time and placed on the calendar 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 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3275 PCS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Pain-Capable Unborn 2 Child Protection Act’’. 3 SEC. 2. LEGISLATIVE FINDINGS. 4 Congress finds and declares the following: 5 (1) Pain receptors (nociceptors) are present 6 throughout the unborn child’s entire body and 7 nerves link these receptors to the brain’s thalamus 8 and subcortical plate by no later than 20 weeks after 9 fertilization. 10 (2) By 8 weeks after fertilization, the unborn 11 child reacts to touch. After 20 weeks, the unborn 12 child reacts to stimuli that would be recognized as 13 painful if applied to an adult human, for example, 14 by recoiling. 15 (3) In the unborn child, application of such 16 painful stimuli is associated with significant in- 17 creases in stress hormones known as the stress re- 18 sponse. 19 (4) Subjection to such painful stimuli is associ- 20 ated with long-term harmful neurodevelopmental ef- 21 fects, such as altered pain sensitivity and, possibly, 22 emotional, behavioral, and learning disabilities later 23 in life. 24 (5) For the purposes of surgery on unborn chil- 25 dren, fetal anesthesia is routinely administered and 26 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3275 PCS is associated with a decrease in stress hormones 1 compared to their level when painful stimuli are ap- 2 plied without such anesthesia. In the United States, 3 surgery of this type is being performed by 20 weeks 4 after fertilization and earlier in specialized units af- 5 filiated with children’s hospitals. 6 (6) The position, asserted by some physicians, 7 that the unborn child is incapable of experiencing 8 pain until a point later in pregnancy than 20 weeks 9 after fertilization predominately rests on the as- 10 sumption that the ability to experience pain depends 11 on the cerebral cortex and requires nerve connec- 12 tions between the thalamus and the cortex. However, 13 recent medical research and analysis, especially since 14 2007, provides strong evidence for the conclusion 15 that a functioning cortex is not necessary to experi- 16 ence pain. 17 (7) Substantial evidence indicates that children 18 born missing the bulk of the cerebral cortex, those 19 with hydranencephaly, nevertheless experience pain. 20 (8) In adult humans and in animals, stimula- 21 tion or ablation of the cerebral cortex does not alter 22 pain perception, while stimulation or ablation of the 23 thalamus does. 24 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3275 PCS (9) Substantial evidence indicates that struc- 1 tures used for pain processing in early development 2 differ from those of adults, using different neural 3 elements available at specific times during develop- 4 ment, such as the subcortical plate, to fulfill the role 5 of pain processing. 6 (10) The position, asserted by some commenta- 7 tors, that the unborn child remains in a coma-like 8 sleep state that precludes the unborn child experi- 9 encing pain is inconsistent with the documented re- 10 action of unborn children to painful stimuli and with 11 the experience of fetal surgeons who have found it 12 necessary to sedate the unborn child with anesthesia 13 to prevent the unborn child from engaging in vig- 14 orous movement in reaction to invasive surgery. 15 (11) Consequently, there is substantial medical 16 evidence that an unborn child is capable of experi- 17 encing pain at least by 20 weeks after fertilization, 18 if not earlier. 19 (12) It is the purpose of the Congress to assert 20 a compelling governmental interest in protecting the 21 lives of unborn children from the stage at which sub- 22 stantial medical evidence indicates that they are ca- 23 pable of feeling pain. 24 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3275 PCS (13) The compelling governmental interest in 1 protecting the lives of unborn children from the 2 stage at which substantial medical evidence indicates 3 that they are capable of feeling pain is intended to 4 be separate from and independent of the compelling 5 governmental interest in protecting the lives of un- 6 born children from the stage of viability, and neither 7 governmental interest is intended to replace the 8 other. 9 SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 10 (a) IN GENERAL.—Chapter 74 of title 18, United 11 States Code, is amended by inserting after section 1531 12 the following: 13 ‘‘§ 1532. Pain-capable unborn child protection 14 ‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 15 other provision of law, it shall be unlawful for any person 16 to perform an abortion or attempt to do so, unless in con- 17 formity with the requirements set forth in subsection (b). 18 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 19 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN- 20 BORN CHILD.—The physician performing or at- 21 tempting the abortion shall first make a determina- 22 tion of the probable post-fertilization age of the un- 23 born child or reasonably rely upon such a determina- 24 tion made by another physician. In making such a 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3275 PCS determination, the physician shall make such inquir- 1 ies of the pregnant woman and perform or cause to 2 be performed such medical examinations and tests 3 as a reasonably prudent physician, knowledgeable 4 about the case and the medical conditions involved, 5 would consider necessary to make an accurate deter- 6 mination of post-fertilization age. 7 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER- 8 TAIN ABORTIONS.— 9 ‘‘(A) GENERALLY FOR UNBORN CHILDREN 10 20 WEEKS OR OLDER.—Except as provided in 11 subparagraph (B), the abortion shall not be 12 performed or attempted, if the probable post- 13 fertilization age, as determined under para- 14 graph (1), of the unborn child is 20 weeks or 15 greater. 16 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 17 does not apply if— 18 ‘‘(i) in reasonable medical judgment, 19 the abortion is necessary to save the life of 20 a pregnant woman whose life is endan- 21 gered by a physical disorder, physical ill- 22 ness, or physical injury, including a life-en- 23 dangering physical condition caused by or 24 arising from the pregnancy itself, but not 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3275 PCS including psychological or emotional condi- 1 tions; 2 ‘‘(ii) the pregnancy is the result of 3 rape against an adult woman, and at least 4 48 hours prior to the abortion— 5 ‘‘(I) she has obtained counseling 6 for the rape; or 7 ‘‘(II) she has obtained medical 8 treatment for the rape or an injury 9 related to the rape; or 10 ‘‘(iii) the pregnancy is a result of rape 11 against a minor or incest against a minor, 12 and the rape or incest has been reported at 13 any time prior to the abortion to either— 14 ‘‘(I) a government agency legally 15 authorized to act on reports of child 16 abuse; or 17 ‘‘(II) a law enforcement agency. 18 ‘‘(C) REQUIREMENT AS TO MANNER OF 19 PROCEDURE PERFORMED.—Notwithstanding 20 the definitions of ‘abortion’ and ‘attempt an 21 abortion’ in this section, a physician termi- 22 nating or attempting to terminate a pregnancy 23 under an exception provided by subparagraph 24 (B) may do so only in the manner which, in 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3275 PCS reasonable medical judgment, provides the best 1 opportunity for the unborn child to survive. 2 ‘‘(D) REQUIREMENT THAT A PHYSICIAN 3 TRAINED IN NEONATAL RESUSCITATION BE 4 PRESENT.—If, in reasonable medical judgment, 5 the pain-capable unborn child has the potential 6 to survive outside the womb, the physician who 7 performs or attempts an abortion under an ex- 8 ception provided by subparagraph (B) shall en- 9 sure a second physician trained in neonatal re- 10 suscitation is present and prepared to provide 11 care to the child consistent with the require- 12 ments of subparagraph (E). 13 ‘‘(E) CHILDREN BORN ALIVE AFTER AT- 14 TEMPTED ABORTIONS.—When a physician per- 15 forms or attempts an abortion in accordance 16 with this section, and the child is born alive, as 17 defined in section 8 of title 1 (commonly known 18 as the Born-Alive Infants Protection Act of 19 2002), the following shall apply: 20 ‘‘(i) DEGREE OF CARE REQUIRED.— 21 Any health care practitioner present at the 22 time shall humanely exercise the same de- 23 gree of professional skill, care, and dili- 24 gence to preserve the life and health of the 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3275 PCS child as a reasonably diligent and conscien- 1 tious health care practitioner would render 2 to a child born alive at the same gesta- 3 tional age in the course of a natural birth. 4 ‘‘(ii) IMMEDIATE ADMISSION TO A 5 HOSPITAL.—Following the care required to 6 be rendered under clause (i), the child born 7 alive shall be immediately transported and 8 admitted to a hospital. 9 ‘‘(iii) MANDATORY REPORTING OF 10 VIOLATIONS.—A health care practitioner or 11 any employee of a hospital, a physician’s 12 office, or an abortion clinic who has knowl- 13 edge of a failure to comply with the re- 14 quirements of this subparagraph must im- 15 mediately report the failure to an appro- 16 priate State or Federal law enforcement 17 agency or both. 18 ‘‘(F) DOCUMENTATION REQUIREMENTS.— 19 ‘‘(i) DOCUMENTATION PERTAINING TO 20 ADULTS.—A physician who performs or at- 21 tempts to perform an abortion under an 22 exception provided by subparagraph (B)(ii) 23 shall, prior to the abortion, place in the pa- 24 tient medical file documentation from a 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3275 PCS hospital licensed by the State or operated 1 under authority of a Federal agency, a 2 medical clinic licensed by the State or op- 3 erated under authority of a Federal agen- 4 cy, from a personal physician licensed by 5 the State, a counselor licensed by the 6 State, or a victim’s rights advocate pro- 7 vided by a law enforcement agency that the 8 adult woman seeking the abortion obtained 9 medical treatment or counseling for the 10 rape or an injury related to the rape. 11 ‘‘(ii) DOCUMENTATION PERTAINING 12 TO MINORS.—A physician who performs or 13 attempts to perform an abortion under an 14 exception provided by subparagraph 15 (B)(iii) shall, prior to the abortion, place in 16 the patient medical file documentation 17 from a government agency legally author- 18 ized to act on reports of child abuse that 19 the rape or incest was reported prior to the 20 abortion; or, as an alternative, documenta- 21 tion from a law enforcement agency that 22 the rape or incest was reported prior to the 23 abortion. 24 ‘‘(G) INFORMED CONSENT.— 25 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3275 PCS ‘‘(i) CONSENT FORM REQUIRED.—The 1 physician who intends to perform or at- 2 tempt to perform an abortion under the 3 provisions of subparagraph (B) may not 4 perform any part of the abortion procedure 5 without first obtaining a signed Informed 6 Consent Authorization form in accordance 7 with this subparagraph. 8 ‘‘(ii) CONTENT OF CONSENT FORM.— 9 The Informed Consent Authorization form 10 shall be presented in person by the physi- 11 cian and shall consist of— 12 ‘‘(I) a statement by the physician 13 indicating the probable post-fertiliza- 14 tion age of the pain-capable unborn 15 child; 16 ‘‘(II) a statement that Federal 17 law allows abortion after 20 weeks 18 fetal age only if the mother’s life is 19 endangered by a physical disorder, 20 physical illness, or physical injury, 21 when the pregnancy was the result of 22 rape, or an act of incest against a 23 minor; 24 VerDate Sep 11 2014 23:54 Feb 12, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3275.PCS S3275 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3275 PCS ‘‘(III) a statement that the abor- 1 tion must be performed by the method 2 most likely to allow the child to be 3 born alive unless this would cause sig- 4 nificant risk to the mother; 5 ‘‘(IV) a statement that in any 6 case in which an abortion procedure 7 results in a child born alive, Federal 8 law requires that child to be given 9 every form of medical assistance that 10 is provided to children spontaneously 11 born prematurely, including transpor- 12 tation and admittance to a hospital; 13 ‘‘(V) a statement that these re- 14 quirements are binding upon the phy- 15 sician and all other medical personnel 16 who are subject to criminal and civil 17 penalties and that a woman on whom 18 an abortion has been performed may 19 take civil act [Text truncated for display. 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