Late Term Abortion Ban Act

I 116TH CONGRESS 2D SESSION H. R. 8939 To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 10, 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 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 ‘‘Late Term Abortion 4 Ban Act’’. 5 SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 6 CONSTITUTIONAL AUTHORITY FOR ENACT- 7 MENT. 8 Congress finds and declares the following: 9 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 2 •HR 8939 IH (1) Pain receptors (nociceptors) are present 1 throughout the unborn child’s entire body and 2 nerves link these receptors to the brain’s thalamus 3 and subcortical plate by no later than 20 weeks after 4 fertilization. 5 (2) By 8 weeks after fertilization, the unborn 6 child reacts to touch. After 20 weeks, the unborn 7 child reacts to stimuli that would be recognized as 8 painful if applied to an adult human, for example, 9 by recoiling. 10 (3) In the unborn child, application of such 11 painful stimuli is associated with significant in- 12 creases in stress hormones known as the stress re- 13 sponse. 14 (4) Subjection to such painful stimuli is associ- 15 ated with long-term harmful neurodevelopmental ef- 16 fects, such as altered pain sensitivity and, possibly, 17 emotional, behavioral, and learning disabilities later 18 in life. 19 (5) For the purposes of surgery on unborn chil- 20 dren, fetal anesthesia is routinely administered and 21 is associated with a decrease in stress hormones 22 compared to their level when painful stimuli are ap- 23 plied without such anesthesia. In the United States, 24 surgery of this type is being performed by 20 weeks 25 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 3 •HR 8939 IH after fertilization and earlier in specialized units af- 1 filiated with children’s hospitals. 2 (6) The position, asserted by some physicians, 3 that the unborn child is incapable of experiencing 4 pain until a point later in pregnancy than 20 weeks 5 after fertilization predominately rests on the as- 6 sumption that the ability to experience pain depends 7 on the cerebral cortex and requires nerve connec- 8 tions between the thalamus and the cortex. However, 9 recent medical research and analysis, especially since 10 2007, provides strong evidence for the conclusion 11 that a functioning cortex is not necessary to experi- 12 ence pain. 13 (7) Substantial evidence indicates that children 14 born missing the bulk of the cerebral cortex, those 15 with hydranencephaly, nevertheless experience pain. 16 (8) In adult humans and in animals, stimula- 17 tion or ablation of the cerebral cortex does not alter 18 pain perception, while stimulation or ablation of the 19 thalamus does. 20 (9) Substantial evidence indicates that struc- 21 tures used for pain processing in early development 22 differ from those of adults, using different neural 23 elements available at specific times during develop- 24 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 4 •HR 8939 IH 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 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 5 •HR 8939 IH 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 (14) Congress has authority to extend protec- 5 tion to pain-capable unborn children under the Su- 6 preme Court’s Commerce Clause precedents and 7 under the Constitution’s grants of powers to Con- 8 gress under the Equal Protection, Due Process, and 9 Enforcement Clauses of the Fourteenth Amendment. 10 SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 11 (a) IN GENERAL.—Chapter 74 of title 18, United 12 States Code, is amended by inserting after section 1531 13 the following: 14 ‘‘§ 1532. Pain-capable unborn child protection 15 ‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 16 other provision of law, it shall be unlawful for any person 17 to perform an abortion or attempt to do so, unless in con- 18 formity with the requirements set forth in subsection (b). 19 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 20 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN- 21 BORN CHILD.—The physician performing or at- 22 tempting the abortion shall first make a determina- 23 tion of the probable post-fertilization age of the un- 24 born child or reasonably rely upon such a determina- 25 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 6 •HR 8939 IH tion made by another physician. In making such a 1 determination, the physician shall make such inquir- 2 ies of the pregnant woman and perform or cause to 3 be performed such medical examinations and tests 4 as a reasonably prudent physician, knowledgeable 5 about the case and the medical conditions involved, 6 would consider necessary to make an accurate deter- 7 mination of post-fertilization age. 8 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER- 9 TAIN ABORTIONS.— 10 ‘‘(A) GENERALLY FOR UNBORN CHILDREN 11 20 WEEKS OR OLDER.—Except as provided in 12 subparagraph (B), the abortion shall not be 13 performed or attempted, if the probable post- 14 fertilization age, as determined under para- 15 graph (1), of the unborn child is 20 weeks or 16 greater. 17 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 18 does not apply if— 19 ‘‘(i) in reasonable medical judgment, 20 the abortion is necessary to prevent the 21 loss of life or severe injury (the substantial 22 and irreversible physical impairment of a 23 major bodily function, not including psy- 24 chological or emotional conditions) of a 25 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 7 •HR 8939 IH pregnant woman endangered by a physical 1 disorder, physical illness, or physical in- 2 jury, including a life-endangering physical 3 condition caused by or arising from the 4 pregnancy itself, but not including psycho- 5 logical or emotional conditions; 6 ‘‘(ii) the pregnancy is the result of 7 rape against an adult woman; or 8 ‘‘(iii) the pregnancy is a result of rape 9 against a minor or incest against a minor. 10 ‘‘(C) REQUIREMENT AS TO MANNER OF 11 PROCEDURE PERFORMED.—Notwithstanding 12 the definitions of ‘abortion’ and ‘attempt an 13 abortion’ in this section, a physician termi- 14 nating or attempting to terminate a pregnancy 15 under an exception provided by subparagraph 16 (B) may do so only in the manner which, in 17 reasonable medical judgment, provides the best 18 opportunity for the unborn child to survive. 19 ‘‘(D) REQUIREMENT THAT A PHYSICIAN 20 TRAINED IN NEONATAL RESUSCITATION BE 21 PRESENT.—If, in reasonable medical judgment, 22 the unborn child has the potential to survive 23 outside the womb, the physician who performs 24 or attempts an abortion under an exception 25 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 8 •HR 8939 IH provided by subparagraph (B) shall ensure a 1 second physician trained in neonatal resuscita- 2 tion is present and prepared to provide care to 3 the child consistent with the requirements of 4 subparagraph (E). 5 ‘‘(E) CHILDREN BORN ALIVE AFTER AT- 6 TEMPTED ABORTIONS.—When a physician per- 7 forms or attempts an abortion in accordance 8 with this section, and the child is born alive, the 9 following shall apply: 10 ‘‘(i) DEGREE OF CARE REQUIRED.— 11 Any health care practitioner present at the 12 time shall humanely exercise the same de- 13 gree of professional skill, care, and dili- 14 gence to preserve the life and health of the 15 child as a reasonably diligent and conscien- 16 tious health care practitioner would render 17 to a child born alive at the same gesta- 18 tional age in the course of a natural birth. 19 ‘‘(ii) MANDATORY REPORTING OF VIO- 20 LATIONS.—A health care practitioner or 21 employee of a hospital, a physician’s office, 22 or an abortion clinic who has knowledge of 23 a failure to comply with the requirements 24 of this subparagraph must immediately re- 25 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 9 •HR 8939 IH port the failure to an appropriate State or 1 Federal law enforcement agency or both. 2 ‘‘(F) INFORMED CONSENT.— 3 ‘‘(i) CONSENT FORM REQUIRED.—The 4 physician who intends to perform or at- 5 tempt to perform an abortion under the 6 provisions of subparagraph (B) may not 7 perform any part of the abortion procedure 8 without first obtaining a signed Informed 9 Consent Authorization form in accordance 10 with this subparagraph. 11 ‘‘(ii) CONTENT OF CONSENT FORM.— 12 The Informed Consent Authorization form 13 shall be presented in person by the physi- 14 cian and shall consist of— 15 ‘‘(I) a statement by the physician 16 indicating the probable post-fertiliza- 17 tion age of the unborn child; 18 ‘‘(II) a statement that Federal 19 law allows abortion after 20 weeks 20 fetal age only if the mother faces se- 21 vere injury (the substantial and irre- 22 versible physical impairment of a 23 major bodily function, not including 24 psychological or emotional conditions) 25 VerDate Sep 11 2014 20:52 Jan 15, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 10 •HR 8939 IH or her life is endangered by a physical 1 disorder, physical illness, or physical 2 injury, when the pregnancy was the 3 result of rape, or an act of incest 4 against a minor; 5 ‘‘(III) a statement that the abor- 6 tion must be performed by the method 7 most likely to allow the child to be 8 born alive unless this would cause sig- 9 nificant risk to the mother; 10 ‘‘(IV) a statement that in any 11 case in which an abortion procedure 12 results in a child born alive, Federal 13 law requires that child to be given 14 every form of medical assistance that 15 is provided to children spontaneously 16 born prematurely, including transpor- 17 tation and admittance to a hospital; 18 ‘‘(V) a statement that these re- 19 quirements are binding upon the phy- 20 sician and all other medical personnel 21 who are subject to criminal and civil 22 penalties and that a woman on whom 23 an abortion has been performed may 24 VerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 11 •HR 8939 IH take civil action if these requirements 1 are not followed; and 2 ‘‘(VI) affirmation that each sign- 3 er has filled out the informed consent 4 form to the best of their knowledge 5 and understands the information con- 6 tained in the form. 7 ‘‘(iii) SIGNATORIES REQUIRED.—The 8 Informed Consent Authorization form shall 9 be signed in person by the woman seeking 10 the abortion, the physician performing or 11 attempting to perform the abortion, and a 12 witness. 13 ‘‘(iv) RETENTION OF CONSENT 14 FORM.—The physician performing or at- 15 tempting to perform an abortion must re- 16 tain the signed informed consent form in 17 the patient’s medical file. 18 ‘‘(G) REQUIREMENT FOR DATA RETEN- 19 TION.—Paragraph (j)(2) of section 164.530 of 20 title 45, Code of Federal Regulations, shall 21 apply to documentation required to be placed in 22 a patient’s medical file pursuant to subpara- 23 graph (F) of subsection (b)(2) and a consent 24 form required to be retained in a patient’s med- 25 VerDate Sep 11 2014 20:52 Jan 15, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 12 •HR 8939 IH ical file pursuant to subparagraph (G) of such 1 subsection in the same manner and to the same 2 extent as such paragraph applies to documenta- 3 tion required by paragraph (j)(1) of such sec- 4 tion. 5 ‘‘(H) ADDITIONAL EXCEPTIONS AND RE- 6 QUIREMENTS.— 7 ‘‘(i) IN CASES OF RISK OF DEATH OR 8 SEVERE INJURY TO THE MOTHER.—Sub- 9 paragraphs (C), (D), and (G) shall not 10 apply if, in reasonable medical judgment, 11 compliance with such paragraphs would 12 pose a greater risk of— 13 ‘‘(I) the death of the pregnant 14 woman; or 15 ‘‘(II) the substantial and irre- 16 versible physical impairment of a 17 major bodily function, not including 18 psychological or emotional conditions, 19 of the pregnant woman. 20 ‘‘(ii) COMPLIANCE WITH CERTAIN 21 STATE LAWS.— 22 ‘‘(I) STATE LAWS REGARDING 23 REPORTING OF RAPE AND INCEST.— 24 The physician who performs or at- 25 VerDate Sep 11 2014 20:52 Jan 15, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939 ctelli on DSK11ZRN23PROD with BILLS 13 •HR 8939 IH tempts to perform an abortion under 1 an exception provided by subpara- 2 graph (B) shall comply with such ap- 3 plicable State laws that [Text truncated for display. 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