What This Bill Does
This bill creates new rules for health care practitioners when a child is born alive during or after an abortion procedure. It requires practitioners to provide the same level of medical care to that child as they would give to any other newborn and to immediately admit the child to a hospital. The bill also establishes criminal penalties and allows civil lawsuits for violations.
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Who It Affects
- Health care practitioners present when a child is born alive after an abortion
- Employees of hospitals, physician's offices, and abortion clinics
- Women who have abortions
- Law enforcement agencies that receive reports of violations
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Key Provisions
- Health care practitioners must exercise professional skill and care equal to what they would provide any other newborn to preserve the child's life and health, then immediately transport and admit the child to a hospital (Sec. 3(a)(1))
- Health care practitioners and clinic employees must immediately report any failure to follow these requirements to state or federal law enforcement (Sec. 3(a)(2))
- Anyone who violates these requirements faces fines or imprisonment for up to 5 years, or both (Sec. 3(b)(1))
- Anyone who intentionally kills a child born alive faces punishment the same as for intentionally killing a human being (Sec. 3(b)(2))
- Women who had the abortion cannot be prosecuted under this law (Sec. 3(c))
- A woman can sue in civil court for money damages, including three times the cost of the abortion and punitive damages (damages meant to punish), with the winner's lawyer fees paid by the loser if the judge finds the case was frivolous (groundless) (Sec. 3(d))
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What Changes
Federal criminal law will add new requirements for how health care practitioners must treat children born alive after abortion procedures and create new criminal penalties for failing to provide care. The law will also create a new civil lawsuit option for women. The chapter heading in federal law covering abortion-related crimes changes from "Partial-Birth Abortions" to "Abortions."
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Important Definitions
- **Abortion**: Using or prescribing instruments, medicine, drugs, or devices to intentionally kill an unborn child or end a pregnancy, except after viability (ability to survive outside the womb) when the goal is a live birth and preserving the child's health, or removing a dead unborn child (Sec. 3(e)(1))
- **Attempt**: Conduct that, in the actor's belief, is a substantial step toward performing an abortion (Sec. 3(e)(2))
- **Child born alive**: Not specified in bill text (references an existing definition in federal law)
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Effective Date
Not specified in bill text
II
Calendar No. 2
118TH CONGRESS
1ST SESSION
H. R. 26
IN THE SENATE OF THE UNITED STATES
JANUARY 23 (legislative day, JANUARY 3), 2023
Received; read the first time
JANUARY 25, 2023
Read the second time and placed on the calendar
AN ACT
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
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Born-Alive Abortion
4
Survivors Protection Act’’.
5
SEC. 2. FINDINGS; CONSTITUTIONAL AUTHORITY.
6
(a) FINDINGS.—Congress finds as follows:
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(1) If an abortion results in the live birth of an
1
infant, the infant is a legal person for all purposes
2
under the laws of the United States, and entitled to
3
all the protections of such laws.
4
(2) Any infant born alive after an abortion or
5
within a hospital, clinic, or other facility has the
6
same claim to the protection of the law that would
7
arise for any newborn, or for any person who comes
8
to a hospital, clinic, or other facility for screening
9
and treatment or otherwise becomes a patient within
10
its care.
11
(b) CONSTITUTIONAL AUTHORITY.—In accordance
12
with the above findings, Congress enacts the following
13
pursuant to Congress’ power under—
14
(1) section 5 of the 14th Amendment, including
15
the power to enforce the prohibition on government
16
action denying equal protection of the laws; and
17
(2) section 8 of article I to make all laws nec-
18
essary and proper for carrying into execution the
19
powers vested by the Constitution of the United
20
States, including the power to regulate commerce
21
under clause 3 of such section.
22
SEC. 3. BORN-ALIVE INFANTS PROTECTION.
23
(a) REQUIREMENTS PERTAINING
TO BORN-ALIVE
24
ABORTION SURVIVORS.—Chapter 74 of title 18, United
25
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HR 26 PCS
States Code, is amended by inserting after section 1531
1
the following:
2
‘‘§ 1532. Requirements pertaining to born-alive abor-
3
tion survivors
4
‘‘(a) REQUIREMENTS FOR HEALTH CARE PRACTI-
5
TIONERS.—In the case of an abortion or attempted abor-
6
tion that results in a child born alive (as defined in section
7
8 of title 1, United States Code (commonly known as the
8
‘Born-Alive Infants Protection Act’)):
9
‘‘(1) DEGREE OF CARE REQUIRED; IMMEDIATE
10
ADMISSION TO A HOSPITAL.—Any health care practi-
11
tioner present at the time the child is born alive
12
shall—
13
‘‘(A) exercise the same degree of profes-
14
sional skill, care, and diligence to preserve the
15
life and health of the child as a reasonably dili-
16
gent and conscientious health care practitioner
17
would render to any other child born alive at
18
the same gestational age; and
19
‘‘(B) following the exercise of skill, care,
20
and diligence required under subparagraph (A),
21
ensure that the child born alive is immediately
22
transported and admitted to a hospital.
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‘‘(2)
MANDATORY
REPORTING
OF
VIOLA-
24
TIONS.—A health care practitioner or any employee
25
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HR 26 PCS
of a hospital, a physician’s office, or an abortion
1
clinic who has knowledge of a failure to comply with
2
the requirements of paragraph (1) shall immediately
3
report the failure to an appropriate State or Federal
4
law enforcement agency, or to both.
5
‘‘(b) PENALTIES.—
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‘‘(1) IN GENERAL.—Whoever violates subsection
7
(a) shall be fined under this title or imprisoned for
8
not more than 5 years, or both.
9
‘‘(2) INTENTIONAL
KILLING
OF
CHILD
BORN
10
ALIVE.—Whoever intentionally performs or attempts
11
to perform an overt act that kills a child born alive
12
described under subsection (a), shall be punished as
13
under section 1111 of this title for intentionally kill-
14
ing or attempting to kill a human being.
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‘‘(c) BAR TO PROSECUTION.—The mother of a child
16
born alive described under subsection (a) may not be pros-
17
ecuted under this section, for conspiracy to violate this
18
section, or for an offense under section 3 or 4 of this title
19
based on such a violation.
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‘‘(d) CIVIL REMEDIES.—
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‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN
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ABORTION IS PERFORMED.—If a child is born alive
23
and there is a violation of subsection (a), the woman
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upon whom the abortion was performed or at-
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HR 26 PCS
tempted may, in a civil action against any person
1
who committed the violation, obtain appropriate re-
2
lief.
3
‘‘(2) APPROPRIATE RELIEF.—Appropriate relief
4
in a civil action under this subsection includes—
5
‘‘(A) objectively verifiable money damage
6
for all injuries, psychological and physical, occa-
7
sioned by the violation of subsection (a);
8
‘‘(B) statutory damages equal to 3 times
9
the cost of the abortion or attempted abortion;
10
and
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‘‘(C) punitive damages.
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‘‘(3) ATTORNEY’S FEE FOR PLAINTIFF.—The
13
court shall award a reasonable attorney’s fee to a
14
prevailing plaintiff in a civil action under this sub-
15
section.
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‘‘(4) ATTORNEY’S FEE FOR DEFENDANT.—If a
17
defendant in a civil action under this subsection pre-
18
vails and the court finds that the plaintiff’s suit was
19
frivolous, the court shall award a reasonable attor-
20
ney’s fee in favor of the defendant against the plain-
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tiff.
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‘‘(e) DEFINITIONS.—In this section the following
23
definitions apply:
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HR 26 PCS
‘‘(1) ABORTION.—The term ‘abortion’ means
1
the use or prescription of any instrument, medicine,
2
drug, or any other substance or device—
3
‘‘(A) to intentionally kill the unborn child
4
of a woman known to be pregnant; or
5
‘‘(B) to intentionally terminate the preg-
6
nancy of a woman known to be pregnant, with
7
an intention other than—
8
‘‘(i) after viability, to produce a live
9
birth and preserve the life and health of
10
the child born alive; or
11
‘‘(ii) to remove a dead unborn child.
12
‘‘(2) ATTEMPT.—The term ‘attempt’, with re-
13
spect to an abortion, means conduct that, under the
14
circumstances as the actor believes them to be, con-
15
stitutes a substantial step in a course of conduct
16
planned to culminate in performing an abortion.’’.
17
(b) CLERICAL AMENDMENT.—The table of sections
18
for chapter 74 of title 18, United States Code, is amended
19
by inserting after the item pertaining to section 1531 the
20
following:
21
‘‘1532. Requirements pertaining to born-alive abortion survivors.’’.
(c) CHAPTER HEADING AMENDMENTS.—
22
(1) CHAPTER
HEADING
IN
CHAPTER.—The
23
chapter heading for chapter 74 of title 18, United
24
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HR 26 PCS
States Code, is amended by striking ‘‘Partial-
1
Birth Abortions’’ and inserting ‘‘Abortions’’.
2
(2) TABLE OF CHAPTERS FOR PART I.—The
3
item relating to chapter 74 in the table of chapters
4
at the beginning of part I of title 18, United States
5
Code, is amended by striking ‘‘Partial-Birth Abor-
6
tions’’ and inserting ‘‘Abortions’’.
7
Passed the House of Representatives January 11,
2023.
Attest:
CHERYL L. JOHNSON,
Clerk.
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Calendar No. 2
118TH CONGRESS
1ST SESSION
H. R. 26
AN ACT
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.
JANUARY 25, 2023
Read the second time and placed on the calendar
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22:52 Jan 25, 2023
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