Protection of Born-Alive Abortion Survivors Act

I 116TH CONGRESS 2D SESSION H. R. 8923 To amend title 18, United States Code, to ensure a health care practitioner exercises the proper degree of care in the case of a child who survives an abortion or attempted abortion. IN THE HOUSE OF REPRESENTATIVES DECEMBER 9, 2020 Ms. GABBARD introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to ensure a health care practitioner exercises the proper degree 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protection of Born- 4 Alive Abortion Survivors Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 8923 IH (1) If an abortion or attempted abortion results 1 in the live birth of an infant, the infant is a legal 2 person for all purposes under the laws of the United 3 States, and entitled to all the protections of such 4 laws. 5 (2) Any infant born alive after an abortion has 6 the same claim to the protection of the law that 7 would arise for any newborn, or for any person who 8 comes to a hospital, clinic, or other facility for 9 screening and treatment or otherwise becomes a pa- 10 tient within its care. 11 SEC. 3. BORN-ALIVE INFANTS PROTECTION. 12 (a) REQUIREMENTS PERTAINING TO BORN-ALIVE 13 ABORTION SURVIVORS.—Chapter 74 of title 18, United 14 States Code, is amended by inserting after section 1531 15 the following: 16 ‘‘§ 1532. Requirements pertaining to born-alive abor- 17 tion survivors 18 ‘‘(a) REQUIREMENTS FOR HEALTH CARE PRACTI- 19 TIONERS.—In the case of an abortion or attempted abor- 20 tion that results in a child born alive: 21 ‘‘(1) DEGREE OF CARE REQUIRED.—Any health 22 care practitioner present at the time the child is 23 born alive shall exercise the same degree of profes- 24 sional skill, care, and diligence to preserve the life 25 VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 8923 IH and health of the child as a reasonably diligent and 1 conscientious health care practitioner would render 2 to any other child born alive at the same gestational 3 age, ensuring the child is receiving the best available 4 care. 5 ‘‘(2) MANDATORY REPORTING OF VIOLA- 6 TIONS.—A health care practitioner or employee of a 7 hospital, a physician’s office, or an abortion clinic 8 who has knowledge of a failure to comply with the 9 requirements of paragraph (1) shall immediately re- 10 port the failure to an appropriate State or Federal 11 law enforcement agency, or to both. 12 ‘‘(b) PENALTIES.— 13 ‘‘(1) IN GENERAL.—Whoever violates subsection 14 (a) shall be fined under this title, imprisoned for not 15 more than 5 years, or both. 16 ‘‘(2) INTENTIONAL KILLING OF CHILD BORN 17 ALIVE.—Whoever intentionally performs or attempts 18 to perform an overt act that kills a child born alive 19 described under subsection (a), shall be punished as 20 under section 1111 of this title for intentionally kill- 21 ing or attempting to kill a human being. 22 ‘‘(c) BAR TO PROSECUTION.—The mother of a child 23 born alive described under subsection (a) may not be pros- 24 ecuted for a violation of this section, an attempt to violate 25 VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 8923 IH this section, a conspiracy to violate this section, or an of- 1 fense under section 3 or 4 of this title based on such a 2 violation. 3 ‘‘(d) CIVIL REMEDIES.— 4 ‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN 5 ABORTION IS PERFORMED.—If a child is born alive 6 and there is a violation of subsection (a), the woman 7 upon whom the abortion was performed or at- 8 tempted may, in a civil action against any person 9 who committed the violation, obtain appropriate re- 10 lief. 11 ‘‘(2) APPROPRIATE RELIEF.—Appropriate relief 12 in a civil action under this subsection includes— 13 ‘‘(A) objectively verifiable money damage 14 for all injuries, psychological and physical, occa- 15 sioned by the violation of subsection (a); 16 ‘‘(B) statutory damages equal to 3 times 17 the cost of the abortion or attempted abortion; 18 and 19 ‘‘(C) punitive damages. 20 ‘‘(3) ATTORNEY’S FEE FOR PLAINTIFF.—The 21 court shall award a reasonable attorney’s fee to a 22 prevailing plaintiff in a civil action under this sub- 23 section. 24 VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 8923 IH ‘‘(4) ATTORNEY’S FEE FOR DEFENDANT.—If a 1 defendant in a civil action under this subsection pre- 2 vails and the court finds that the plaintiff’s suit was 3 frivolous, the court shall award a reasonable attor- 4 ney’s fee in favor of the defendant against the plain- 5 tiff. 6 ‘‘(e) DEFINITIONS.—In this section the following 7 definitions apply: 8 ‘‘(1) ABORTION.—The term ‘abortion’ means 9 the use or prescription of any instrument, medicine, 10 drug, or any other substance or device— 11 ‘‘(A) to intentionally kill the unborn child 12 of a woman known to be pregnant; or 13 ‘‘(B) to intentionally terminate the preg- 14 nancy of a woman known to be pregnant, with 15 an intention other than— 16 ‘‘(i) after viability, to produce a live 17 birth and preserve the life and health of 18 the child born alive; or 19 ‘‘(ii) to remove a dead unborn child. 20 ‘‘(2) ATTEMPT.—The term ‘attempt’, with re- 21 spect to an abortion, means conduct that, under the 22 circumstances as the actor believes them to be, con- 23 stitutes a substantial step in a course of conduct 24 planned to culminate in performing an abortion. 25 VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 8923 IH ‘‘(3) BORN ALIVE.—The term ‘born alive’ has 1 the meaning given that term in section 8 of title 1, 2 United States Code (commonly known as the ‘Born- 3 Alive Infants Protection Act’).’’. 4 (b) CONFORMING AMENDMENTS.— 5 (1) The table of sections for chapter 74 of title 6 18, United States Code, is amended by adding at 7 the end the following: 8 ‘‘1532. Requirements pertaining to born-alive abortion survivors.’’. (2) The chapter heading for chapter 74 of title 9 18, United States Code, is amended by striking 10 ‘‘PARTIAL-BIRTH ABORTIONS’’ and insert- 11 ing ‘‘ABORTIONS’’. 12 (3) The table of chapters for part I of title 18, 13 United States Code, is amended by striking the item 14 relating to chapter 74 and inserting the following: 15 ‘‘74. Abortions .......................................................................................... 1531’’. SEC. 4. EFFECTIVE DATE. 16 This Act shall take effect one day after the date of 17 enactment. 18 Æ VerDate Sep 11 2014 19:30 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\H8923.IH H8923 pamtmann on DSKBC07HB2PROD with BILLS