II 

114TH CONGRESS 

1ST SESSION H. R. 36 

IN THE SENATE OF THE UNITED STATES 

MAY 14, 2015 

Received 

AN ACT 

To amend title 18, United States Code, to protect paincapable unborn children, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Pain-Capable Unborn 

3 Child Protection Act’’. 

4 SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 

5 CONSTITUTIONAL AUTHORITY FOR ENACT6 MENT. 

7 Congress finds and declares the following: 

8 (1) Pain receptors (nociceptors) are present 

9 throughout the unborn child’s entire body and 

10 nerves link these receptors to the brain’s thalamus 

11 and subcortical plate by no later than 20 weeks after 

12 fertilization. 

13 (2) By 8 weeks after fertilization, the unborn 

14 child reacts to touch. After 20 weeks, the unborn 

15 child reacts to stimuli that would be recognized as 

16 painful if applied to an adult human, for example, 

17 by recoiling. 

18 (3) In the unborn child, application of such 

19 painful stimuli is associated with significant in20 creases in stress hormones known as the stress re21 sponse. 

22 (4) Subjection to such painful stimuli is associ23 ated with long-term harmful neurodevelopmental ef24 fects, such as altered pain sensitivity and, possibly, 

25 emotional, behavioral, and learning disabilities later 

26 in life. 

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1 (5) For the purposes of surgery on unborn chil2 dren, fetal anesthesia is routinely administered and 

3 is associated with a decrease in stress hormones 

4 compared to their level when painful stimuli are ap5 plied without such anesthesia. In the United States, 

6 surgery of this type is being performed by 20 weeks 

7 after fertilization and earlier in specialized units af8 filiated with children’s hospitals. 

9 (6) The position, asserted by some physicians, 

10 that the unborn child is incapable of experiencing 

11 pain until a point later in pregnancy than 20 weeks 

12 after fertilization predominately rests on the as13 sumption that the ability to experience pain depends 

14 on the cerebral cortex and requires nerve connec15 tions between the thalamus and the cortex. However, 

16 recent medical research and analysis, especially since 

17 2007, provides strong evidence for the conclusion 

18 that a functioning cortex is not necessary to experi19 ence pain. 

20 (7) Substantial evidence indicates that children 

21 born missing the bulk of the cerebral cortex, those 

22 with hydranencephaly, nevertheless experience pain. 

23 (8) In adult humans and in animals, stimula24 tion or ablation of the cerebral cortex does not alter 

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1 pain perception, while stimulation or ablation of the 

2 thalamus does. 

3 (9) Substantial evidence indicates that struc4 tures used for pain processing in early development 

5 differ from those of adults, using different neural 

6 elements available at specific times during develop7 ment, such as the subcortical plate, to fulfill the role 

8 of pain processing. 

9 (10) The position, asserted by some commenta10 tors, that the unborn child remains in a coma-like 

11 sleep state that precludes the unborn child experi12 encing pain is inconsistent with the documented re13 action of unborn children to painful stimuli and with 

14 the experience of fetal surgeons who have found it 

15 necessary to sedate the unborn child with anesthesia 

16 to prevent the unborn child from engaging in vig17 orous movement in reaction to invasive surgery. 

18 (11) Consequently, there is substantial medical 

19 evidence that an unborn child is capable of experi20 encing pain at least by 20 weeks after fertilization, 

21 if not earlier. 

22 (12) It is the purpose of the Congress to assert 

23 a compelling governmental interest in protecting the 

24 lives of unborn children from the stage at which submstockstill on DSK4VPTVN1PROD with BILLS

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1 stantial medical evidence indicates that they are ca2 pable of feeling pain. 

3 (13) The compelling governmental interest in 

4 protecting the lives of unborn children from the 

5 stage at which substantial medical evidence indicates 

6 that they are capable of feeling pain is intended to 

7 be separate from and independent of the compelling 

8 governmental interest in protecting the lives of un9 born children from the stage of viability, and neither 

10 governmental interest is intended to replace the 

11 other. 

12 (14) Congress has authority to extend protec13 tion to pain-capable unborn children under the Su14 preme Court’s Commerce Clause precedents and 

15 under the Constitution’s grants of powers to Con16 gress under the Equal Protection, Due Process, and 

17 Enforcement Clauses of the Fourteenth Amendment. 

18 SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 

19 (a) IN GENERAL.—Chapter 74 of title 18, United 

20 States Code, is amended by inserting after section 1531 

21 the following: 

22 ‘‘SEC. 1532. PAIN-CAPABLE UNBORN CHILD PROTECTION. 

23 ‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 

24 other provision of law, it shall be unlawful for any person 

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1 to perform an abortion or attempt to do so, unless in con2 formity with the requirements set forth in subsection (b). 

3 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

4 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN5 BORN CHILD.—The physician performing or at6 tempting the abortion shall first make a determina7 tion of the probable post-fertilization age of the un8 born child or reasonably rely upon such a determina9 tion made by another physician. In making such a 

10 determination, the physician shall make such inquir11 ies of the pregnant woman and perform or cause to 

12 be performed such medical examinations and tests 

13 as a reasonably prudent physician, knowledgeable 

14 about the case and the medical conditions involved, 

15 would consider necessary to make an accurate deter16 mination of post-fertilization age. 

17 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER18 TAIN ABORTIONS.— 

19 ‘‘(A) GENERALLY FOR UNBORN CHILDREN

20 20 WEEKS OR OLDER.—Except as provided in 

21 subparagraph (B), the abortion shall not be 

22 performed or attempted, if the probable post23 fertilization age, as determined under para24 graph (1), of the unborn child is 20 weeks or 

25 greater. 

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1 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 

2 does not apply if— 

3 ‘‘(i) in reasonable medical judgment, 

4 the abortion is necessary to save the life of 

5 a pregnant woman whose life is endan6 gered by a physical disorder, physical ill7 ness, or physical injury, including a life-en8 dangering physical condition caused by or 

9 arising from the pregnancy itself, but not 

10 including psychological or emotional condi11 tions; 

12 ‘‘(ii) the pregnancy is the result of 

13 rape against an adult woman, and at least 

14 48 hours prior to the abortion— 

15 ‘‘(I) she has obtained counseling 

16 for the rape; or 

17 ‘‘(II) she has obtained medical 

18 treatment for the rape or an injury 

19 related to the rape; or 

20 ‘‘(iii) the pregnancy is a result of rape 

21 against a minor or incest against a minor, 

22 and the rape or incest has been reported at 

23 any time prior to the abortion to either— 

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1 ‘‘(I) a government agency legally 

2 authorized to act on reports of child 

3 abuse; or 

4 ‘‘(II) a law enforcement agency. 

5 ‘‘(C) REQUIREMENT AS TO MANNER OF

6 PROCEDURE PERFORMED.—Notwithstanding 

7 the definitions of ‘abortion’ and ‘attempt an 

8 abortion’ in this section, a physician termi9 nating or attempting to terminate a pregnancy 

10 under an exception provided by subparagraph 

11 (B) may do so only in the manner which, in 

12 reasonable medical judgment, provides the best 

13 opportunity for the unborn child to survive. 

14 ‘‘(D) REQUIREMENT THAT A PHYSICIAN

15 TRAINED IN NEONATAL RESUSCITATION BE

16 PRESENT.—If, in reasonable medical judgment, 

17 the pain-capable unborn child has the potential 

18 to survive outside the womb, the physician who 

19 performs or attempts an abortion under an ex20 ception provided by subparagraph (B) shall en21 sure a second physician trained in neonatal re22 suscitation is present and prepared to provide 

23 care to the child consistent with the require24 ments of subparagraph (E). 

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1 ‘‘(E) CHILDREN BORN ALIVE AFTER AT2 TEMPTED ABORTIONS.—When a physician per3 forms or attempts an abortion in accordance 

4 with this section, and the child is born alive, as 

5 defined in section 8 of title 1 (commonly known 

6 as the Born-Alive Infants Protection Act of 

7 2002), the following shall apply: 

8 ‘‘(i) DEGREE OF CARE REQUIRED.— 

9 Any health care practitioner present at the 

10 time shall humanely exercise the same de11 gree of professional skill, care, and dili12 gence to preserve the life and health of the 

13 child as a reasonably diligent and conscien14 tious health care practitioner would render 

15 to a child born alive at the same gesta16 tional age in the course of a natural birth. 

17 ‘‘(ii) IMMEDIATE ADMISSION TO A

18 HOSPITAL.—Following the care required to 

19 be rendered under clause (i), the child born 

20 alive shall be immediately transported and 

21 admitted to a hospital. 

22 ‘‘(iii) MANDATORY REPORTING OF

23 VIOLATIONS.—A health care practitioner or 

24 any employee of a hospital, a physician’s 

25 office, or an abortion clinic who has knowlmstockstill on DSK4VPTVN1PROD with BILLS

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1 edge of a failure to comply with the re2 quirements of this subparagraph must im3 mediately report the failure to an appro4 priate State or Federal law enforcement 

5 agency or both. 

6 ‘‘(F) DOCUMENTATION REQUIREMENTS.— 

7 ‘‘(i) DOCUMENTATION PERTAINING TO

8 ADULTS.—A physician who performs or at9 tempts to perform an abortion under an 

10 exception provided by subparagraph (B)(ii) 

11 shall, prior to the abortion, place in the pa12 tient medical file documentation from a 

13 hospital licensed by the State or operated 

14 under authority of a Federal agency, a 

15 medical clinic licensed by the State or op16 erated under authority of a Federal agen17 cy, from a personal physician licensed by 

18 the State, a counselor licensed by the 

19 State, or a victim’s rights advocate pro20 vided by a law enforcement agency that the 

21 adult woman seeking the abortion obtained 

22 medical treatment or counseling for the 

23 rape or an injury related to the rape. 

24 ‘‘(ii) DOCUMENTATION PERTAINING

25 TO MINORS.—A physician who performs or 

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1 attempts to perform an abortion under an 

2 exception provided by subparagraph 

3 (B)(iii) shall, prior to the abortion, place in 

4 the patient medical file documentation 

5 from a government agency legally author6 ized to act on reports of child abuse that 

7 the rape or incest was reported prior to the 

8 abortion; or, as an alternative, documenta9 tion from a law enforcement agency that 

10 the rape or incest was reported prior to the 

11 abortion. 

12 ‘‘(G) INFORMED CONSENT.— 

13 ‘‘(i) CONSENT FORM REQUIRED.—The 

14 physician who intends to perform or at15 tempt to perform an abortion under the 

16 provisions of subparagraph (B) may not 

17 perform any part of the abortion procedure 

18 without first obtaining a signed Informed 

19 Consent Authorization form in accordance 

20 with this subparagraph. 

21 ‘‘(ii) CONTENT OF CONSENT FORM.— 

22 The Informed Consent Authorization form 

23 shall be presented in person by the physi24 cian and shall consist of— 

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1 ‘‘(I) a statement by the physician 

2 indicating the probable post-fertiliza3 tion age of the pain-capable unborn 

4 child; 

5 ‘‘(II) a statement that Federal 

6 law allows abortion after 20 weeks 

7 fetal age only if the mother’s life is 

8 endangered by a physical disorder, 

9 physical illness, or physical injury, 

10 when the pregnancy was the result of 

11 rape, or an act of incest against a 

12 minor; 

13 ‘‘(III) a statement that the abor14 tion must be performed by the method 

15 most likely to allow the child to be 

16 born alive unless this would cause sig17 nificant risk to the mother; 

18 ‘‘(IV) a statement that in any 

19 case in which an abortion procedure 

20 results in a child born alive, Federal 

21 law requires that child to be given 

22 every form of medical assistance that 

23 is provided to children spontaneously 

24 born prematurely, including transpor25 tation and admittance to a hospital; 

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1 ‘‘(V) a statement that these re2 quirements are binding upon the phy3 sician and all other medical personnel 

4 who are subject to criminal and civil 

5 penalties and that a woman on whom 

6 an abortion has been performed may 

7 take civil action if these requirements 

8 are not followed; and 

9 ‘‘(VI) affirmation that each sign10 er has filled out the informed consent 

11 form to the best of their knowledge 

12 and understands the information con13 tained in the form. 

14 ‘‘(iii) SIGNATORIES REQUIRED.—The 

15 Informed Consent Authorization form shall 

16 be signed in person by the woman seeking 

17 the abortion, the physician performing or 

18 attempting to perform the abortion, and a 

19 witness. 

20 ‘‘(iv) RETENTION OF CONSENT

21 FORM.—The physician performing or at22 tempting to perform an abortion must re23 tain the signed informed consent form in 

24 the patient’s medical file. 

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1 ‘‘(H) REQUIREMENT FOR DATA RETEN2 TION.—Paragraph (j)(2) of section 164.530 of 

3 title 45, Code of Federal Regulations, shall 

4 apply to documentation required to be placed in 

5 a patient’s medical file pursuant to subpara6 graph (F) of subsection (b)(2) and a consent 

7 form required to be retained in a patient’s med8 ical file pursuant to subparagraph (G) of such 

9 subsection in the same manner and to the same 

10 extent as such paragraph applies to documenta11 tion required by paragraph (j)(1) of such sec12 tion. 

13 ‘‘(I) ADDITIONAL EXCEPTIONS AND RE14 QUIREMENTS.— 

15 ‘‘(i) IN CASES OF RISK OF DEATH OR

16 MAJOR INJURY TO THE MOTHER.—Sub17 paragraphs (C), (D), and (G) shall not 

18 apply if, in reasonable medical judgment, 

19 compliance with such paragraphs would 

20 pose a greater risk of— 

21 ‘‘(I) the death of the pregnant 

22 woman; or 

23 ‘‘(II) the substantial and irre24 versible physical impairment of a 

25 major bodily function, not including 

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1 psychological or emotional conditions, 

2 of the pregnant woman. 

3 ‘‘(ii) EXCLUSION OF CERTAIN FACILI4 TIES.—Notwithstanding the definitions of 

5 the terms ‘medical treatment’ and ‘coun6 seling’ in subsection (g), the counseling or 

7 medical treatment described in subpara8 graph (B)(ii) may not be provided by a fa9 cility that performs abortions (unless that 

10 facility is a hospital). 

11 ‘‘(iii) RULE OF CONSTRUCTION IN

12 CASES OF REPORTS TO LAW ENFORCE13 MENT.—The requirements of subparagraph 

14 (B)(ii) do not apply if the rape has been 

15 reported at any time prior to the abortion 

16 to a law enforcement agency or Depart17 ment of Defense victim assistance per18 sonnel. 

19 ‘‘(iv) COMPLIANCE WITH CERTAIN

20 STATE LAWS.— 

21 ‘‘(I) STATE LAWS REGARDING

22 REPORTING OF RAPE AND INCEST.— 

23 The physician who performs or at24 tempts to perform an abortion under 

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1 graph (B) shall comply with such ap2 plicable State laws that are in effect 

3 as the State’s Attorney General may 

4 designate, regarding reporting re5 quirements in cases of rape or incest. 

6 ‘‘(II) STATE LAWS REGARDING

7 PARENTAL INVOLVEMENT.—The phy8 sician who intends to perform an 

9 abortion on a minor under an excep10 tion provided by subparagraph (B) 

11 shall comply with any applicable State 

12 laws requiring parental involvement in 

13 a minor’s decision to have an abor14 tion. 

15 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub16 section (a) shall be fined under this title or imprisoned 

17 for not more than 5 years, or both. 

18 ‘‘(d) BAR TO PROSECUTION.—A woman upon whom 

19 an abortion in violation of subsection (a) is performed or 

20 attempted may not be prosecuted under, or for a con21 spiracy to violate, subsection (a), or for an offense under 

22 section 2, 3, or 4 of this title based on such a violation. 

23 ‘‘(e) CIVIL REMEDIES.— 

24 ‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN

25 ABORTION IS PERFORMED.—A woman upon whom 

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1 an abortion has been performed or attempted in vio2 lation of any provision of this section may, in a civil 

3 action against any person who committed the viola4 tion, obtain appropriate relief. 

5 ‘‘(2) CIVIL ACTION BY A PARENT OF A MINOR

6 ON WHOM AN ABORTION IS PERFORMED.—A parent 

7 of a minor upon whom an abortion has been per8 formed or attempted under an exception provided for 

9 in subsection (b)(2)(B), and that was performed in 

10 violation of any provision of this section may, in a 

11 civil action against any person who committed the 

12 violation obtain appropriate relief, unless the preg13 nancy resulted from the plaintiff’s criminal conduct. 

14 ‘‘(3) APPROPRIATE RELIEF.—Appropriate relief 

15 in a civil action under this subsection includes— 

16 ‘‘(A) objectively verifiable money damages 

17 for all injuries, psychological and physical, occa18 sioned by the violation; 

19 ‘‘(B) statutory damages equal to three 

20 times the cost of the abortion; and 

21 ‘‘(C) punitive damages. 

22 ‘‘(4) ATTORNEYS FEES FOR PLAINTIFF.—The 

23 court shall award a reasonable attorney’s fee as part 

24 of the costs to a prevailing plaintiff in a civil action 

25 under this subsection. 

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1 ‘‘(5) ATTORNEYS FEES FOR DEFENDANT.—If a 

2 defendant in a civil action under this subsection pre3 vails and the court finds that the plaintiff’s suit was 

4 frivolous, the court shall award a reasonable attor5 ney’s fee in favor of the defendant against the plain6 tiff. 

7 ‘‘(6) AWARDS AGAINST WOMAN.—Except under 

8 paragraph (5), in a civil action under this sub9 section, no damages, attorney’s fee or other mone10 tary relief may be assessed against the woman upon 

11 whom the abortion was performed or attempted. 

12 ‘‘(f) DATA COLLECTION.— 

13 ‘‘(1) DATA SUBMISSIONS.—Any physician who 

14 performs or attempts an abortion described in sub15 section (b)(2)(B) shall annually submit a summary 

16 of all such abortions to the National Center for 

17 Health Statistics (hereinafter referred to as the 

18 ‘Center’) not later than 60 days after the end of the 

19 calendar year in which the abortion was performed 

20 or attempted. 

21 ‘‘(2) CONTENTS OF SUMMARY.—The summary 

22 shall include the number of abortions performed or 

23 attempted on an unborn child who had a post-fer24 tilization age of 20 weeks or more and specify the 

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1 following for each abortion under subsection 

2 (b)(2)(B)— 

3 ‘‘(A) the probable post-fertilization age of 

4 the unborn child; 

5 ‘‘(B) the method used to carry out the 

6 abortion; 

7 ‘‘(C) the location where the abortion was 

8 conducted; 

9 ‘‘(D) the exception under subsection 

10 (b)(2)(B) under which the abortion was con11 ducted; and 

12 ‘‘(E) any incident of live birth resulting 

13 from the abortion. 

14 ‘‘(3) EXCLUSIONS FROM DATA SUBMISSIONS.— 

15 A summary required under this subsection shall not 

16 contain any information identifying the woman 

17 whose pregnancy was terminated and shall be sub18 mitted consistent with the Health Insurance Port19 ability and Accountability Act of 1996 (42 U.S.C. 

20 1320d–2 note). 

21 ‘‘(4) PUBLIC REPORT.—The Center shall annu22 ally issue a public report providing statistics by 

23 State for the previous year compiled from all of the 

24 summaries made to the Center under this sub25 section. The Center shall take care to ensure that 

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1 none of the information included in the public re2 ports could reasonably lead to the identification of 

3 any pregnant woman upon whom an abortion was 

4 performed or attempted. The annual report shall be 

5 issued by July 1 of the calendar year following the 

6 year in which the abortions were performed or at7 tempted. 

8 ‘‘(g) DEFINITIONS.—In this section the following 

9 definitions apply: 

10 ‘‘(1) ABORTION.—The term ‘abortion’ means 

11 the use or prescription of any instrument, medicine, 

12 drug, or any other substance or device— 

13 ‘‘(A) to intentionally kill the unborn child 

14 of a woman known to be pregnant; or 

15 ‘‘(B) to intentionally terminate the preg16 nancy of a woman known to be pregnant, with 

17 an intention other than— 

18 ‘‘(i) after viability to produce a live 

19 birth and preserve the life and health of 

20 the child born alive; or 

21 ‘‘(ii) to remove a dead unborn child. 

22 ‘‘(2) ATTEMPT.—The term ‘attempt’, with re23 spect to an abortion, means conduct that, under the 

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1 stitutes a substantial step in a course of conduct 

2 planned to culminate in performing an abortion. 

3 ‘‘(3) COUNSELING.—The term ‘counseling’ 

4 means counseling provided by a counselor licensed 

5 by the State, or a victims rights advocate provided 

6 by a law enforcement agency. 

7 ‘‘(4) FACILITY.—The term ‘facility’ means any 

8 medical or counseling group, center or clinic and in9 cludes the entire legal entity, including any entity 

10 that controls, is controlled by, or is under common 

11 control with such facility. 

12 ‘‘(5) FERTILIZATION.—The term ‘fertilization’ 

13 means the fusion of human spermatozoon with a 

14 human ovum. 

15 ‘‘(6) MEDICAL TREATMENT.—The term ‘med16 ical treatment’ means treatment provided at a hos17 pital licensed by the State or operated under author18 ity of a Federal agency, at a medical clinic licensed 

19 by the State or operated under authority of a Fed20 eral agency, or from a personal physician licensed by 

21 the State. 

22 ‘‘(7) MINOR.—The term ‘minor’ means an indi23 vidual who has not attained the age of 18 years. 

24 ‘‘(8) PERFORM.—The term ‘perform’, with re25 spect to an abortion, includes inducing an abortion 

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1 through a medical or chemical intervention including 

2 writing a prescription for a drug or device intended 

3 to result in an abortion. 

4 ‘‘(9) PHYSICIAN.—The term ‘physician’ means 

5 a person licensed to practice medicine and surgery 

6 or osteopathic medicine and surgery, or otherwise le7 gally authorized to perform an abortion. 

8 ‘‘(10) POST-FERTILIZATION AGE.—The term 

9 ‘post-fertilization age’ means the age of the unborn 

10 child as calculated from the fusion of a human 

11 spermatozoon with a human ovum. 

12 ‘‘(11) PROBABLE POST-FERTILIZATION AGE OF

13 THE UNBORN CHILD.—The term ‘probable post-fer14 tilization age of the unborn child’ means what, in 

15 reasonable medical judgment, will with reasonable 

16 probability be the post-fertilization age of the un17 born child at the time the abortion is planned to be 

18 performed or induced. 

19 ‘‘(12) REASONABLE MEDICAL JUDGMENT.—The 

20 term ‘reasonable medical judgment’ means a medical 

21 judgment that would be made by a reasonably pru22 dent physician, knowledgeable about the case and 

23 the treatment possibilities with respect to the med24 ical conditions involved. 

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1 ‘‘(13) UNBORN CHILD.—The term ‘unborn 

2 child’ means an individual organism of the species 

3 homo sapiens, beginning at fertilization, until the 

4 point of being born alive as defined in section 8(b) 

5 of title 1. 

6 ‘‘(14) WOMAN.—The term ‘woman’ means a fe7 male human being whether or not she has reached 

8 the age of majority.’’. 

9 (b) CLERICAL AMENDMENT.—The table of sections 

10 at the beginning of chapter 74 of title 18, United States 

11 Code, is amended by adding at the end the following new 

12 item: 

‘‘1532. Pain-capable unborn child protection.’’. 

13 (c) CHAPTER HEADING AMENDMENTS.— 

14 (1) CHAPTER HEADING IN CHAPTER.—The 

15 chapter heading for chapter 74 of title 18, United 

16 States Code, is amended by striking ‘‘Partial17 Birth Abortions’’ and inserting ‘‘Abortions’’. 

18 (2) TABLE OF CHAPTERS FOR PART I.—The 

19 item relating to chapter 74 in the table of chapters 

20 at the beginning of part I of title 18, United States 

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1 Code, is amended by striking ‘‘Partial-Birth Abor2 tions’’ and inserting ‘‘Abortions’’. 

Passed the House of Representatives May 13, 2015. 

Attest: KAREN L. HAAS, 

Clerk. 

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