I 

114TH CONGRESS 

1ST SESSION H. R. 36 

To amend title 18, United States Code, to protect pain-capable unborn 

children, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 6, 2015 

Mr. FRANKS of Arizona (for himself and Mrs. BLACKBURN) introduced the 

following bill; which was referred to the Committee on the Judiciary 

A BILL 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 Child Protection Act’’. 

6 SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 

7 CONSTITUTIONAL AUTHORITY FOR ENACT8 MENT. 

9 Congress finds and declares the following: 


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1 (1) Pain receptors (nociceptors) are present 

2 throughout the unborn child’s entire body and 

3 nerves link these receptors to the brain’s thalamus 

4 and subcortical plate by no later than 20 weeks after 

5 fertilization. 

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

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

8 child reacts to stimuli that would be recognized as 

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

10 by recoiling. 

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

12 painful stimuli is associated with significant in13 creases in stress hormones known as the stress re14 sponse. 

15 (4) Subjection to such painful stimuli is associ16 ated with long-term harmful neurodevelopmental ef17 fects, such as altered pain sensitivity and, possibly, 

18 emotional, behavioral, and learning disabilities later 

19 in life. 

20 (5) For the purposes of surgery on unborn chil21 dren, fetal anesthesia is routinely administered and 

22 is associated with a decrease in stress hormones 

23 compared to their level when painful stimuli are ap24 plied without such anesthesia. In the United States, 

25 surgery of this type is being performed by 20 weeks 


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1 after fertilization and earlier in specialized units af2 filiated with children’s hospitals. 

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

4 that the unborn child is incapable of experiencing 

5 pain until a point later in pregnancy than 20 weeks 

6 after fertilization predominately rests on the as7 sumption that the ability to experience pain depends 

8 on the cerebral cortex and requires nerve connec9 tions between the thalamus and the cortex. However, 

10 recent medical research and analysis, especially since 

11 2007, provides strong evidence for the conclusion 

12 that a functioning cortex is not necessary to experi13 ence pain. 

14 (7) Substantial evidence indicates that children 

15 born missing the bulk of the cerebral cortex, those 

16 with hydranencephaly, nevertheless experience pain. 

17 (8) In adult humans and in animals, stimula18 tion or ablation of the cerebral cortex does not alter 

19 pain perception, while stimulation or ablation of the 

20 thalamus does. 

21 (9) Substantial evidence indicates that struc22 tures used for pain processing in early development 

23 differ from those of adults, using different neural 

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1 ment, such as the subcortical plate, to fulfill the role 

2 of pain processing. 

3 (10) The position, asserted by some commenta4 tors, that the unborn child remains in a coma-like 

5 sleep state that precludes the unborn child experi6 encing pain is inconsistent with the documented re7 action of unborn children to painful stimuli and with 

8 the experience of fetal surgeons who have found it 

9 necessary to sedate the unborn child with anesthesia 

10 to prevent the unborn child from engaging in vig11 orous movement in reaction to invasive surgery. 

12 (11) Consequently, there is substantial medical 

13 evidence that an unborn child is capable of experi14 encing pain at least by 20 weeks after fertilization, 

15 if not earlier. 

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

17 a compelling governmental interest in protecting the 

18 lives of unborn children from the stage at which sub19 stantial medical evidence indicates that they are ca20 pable of feeling pain. 

21 (13) The compelling governmental interest in 

22 protecting the lives of unborn children from the 

23 stage at which substantial medical evidence indicates 

24 that they are capable of feeling pain is intended to 

25 be separate from and independent of the compelling 


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1 governmental interest in protecting the lives of un2 born children from the stage of viability, and neither 

3 governmental interest is intended to replace the 

4 other. 

5 (14) Congress has authority to extend protec6 tion to pain-capable unborn children under the Su7 preme Court’s Commerce Clause precedents and 

8 under the Constitution’s grants of powers to Con9 gress under the Equal Protection, Due Process, and 

10 Enforcement Clauses of the Fourteenth Amendment. 

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

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

13 States Code, is amended by inserting after section 1531 

14 the following: 

15 ‘‘§ 1532. Pain-capable unborn child protection 

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

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

18 to perform an abortion or attempt to do so, unless in con19 formity with the requirements set forth in subsection (b). 

20 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

21 ‘‘(1) The physician performing or attempting 

22 the abortion shall first make a determination of the 

23 probable post-fertilization age of the unborn child or 

24 reasonably rely upon such a determination made by 

25 another physician. In making such a determination, 


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1 the physician shall make such inquiries of the preg2 nant woman and perform or cause to be performed 

3 such medical examinations and tests as a reasonably 

4 prudent physician, knowledgeable about the case and 

5 the medical conditions involved, would consider nec6 essary to make an accurate determination of post7 fertilization age. 

8 ‘‘(2)(A) Except as provided in subparagraph 

9 (B), the abortion shall not be performed or at10 tempted, if the probable post-fertilization age, as de11 termined under paragraph (1), of the unborn child 

12 is 20 weeks or greater. 

13 ‘‘(B) Subject to subparagraph (C), subpara14 graph (A) does not apply if— 

15 ‘‘(i) in reasonable medical judgment, the 

16 abortion is necessary to save the life of a preg17 nant woman whose life is endangered by a 

18 physical disorder, physical illness, or physical 

19 injury, including a life-endangering physical 

20 condition caused by or arising from the preg21 nancy itself, but not including psychological or 

22 emotional conditions; or 

23 ‘‘(ii) the pregnancy is the result of rape, or 

24 the result of incest against a minor, if the rape 

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1 tion to an appropriate law enforcement agency, 

2 or if the incest against a minor has been re3 ported at any time prior to the abortion to an 

4 appropriate law enforcement agency or to a 

5 government agency legally authorized to act on 

6 reports of child abuse or neglect. 

7 ‘‘(C) Notwithstanding the definitions of ‘abor8 tion’ and ‘attempt an abortion’ in this section, a 

9 physician terminating or attempting to terminate a 

10 pregnancy under an exception provided by subpara11 graph (B) may do so only in the manner which, in 

12 reasonable medical judgment, provides the best op13 portunity for the unborn child to survive, unless, in 

14 reasonable medical judgment, termination of the 

15 pregnancy in that manner would pose a greater risk 

16 of— 

17 ‘‘(i) the death of the pregnant woman; or 

18 ‘‘(ii) the substantial and irreversible phys19 ical impairment of a major bodily function, not 

20 including psychological or emotional conditions, 

21 of the pregnant woman; 

22 than would other available methods. 

23 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub24 section (a) shall be fined under this title or imprisoned 

25 for not more than 5 years, or both. 


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

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

3 attempted may not be prosecuted under, or for a con4 spiracy to violate, subsection (a), or for an offense under 

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

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 preg14 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 AN ABORTION.—The term ‘at21 tempt’, with respect to an abortion, means conduct 

22 that, under the circumstances as the actor believes 

23 them to be, constitutes a substantial step in a course 

24 of conduct planned to culminate in performing an 

25 abortion. 


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1 ‘‘(3) FERTILIZATION.—The term ‘fertilization’ 

2 means the fusion of human spermatozoon with a 

3 human ovum. 

4 ‘‘(4) PERFORM.—The term ‘perform’, with re5 spect to an abortion, includes induce an abortion 

6 through a medical or chemical intervention including 

7 writing a prescription for a drug or device intended 

8 to result in an abortion. 

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

10 a person licensed to practice medicine and surgery 

11 or osteopathic medicine and surgery, or otherwise le12 gally authorized to perform an abortion. 

13 ‘‘(6) POST-FERTILIZATION AGE.—The term 

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

15 child as calculated from the fusion of a human 

16 spermatozoon with a human ovum. 

17 ‘‘(7) PROBABLE POST-FERTILIZATION AGE OF

18 THE UNBORN CHILD.—The term ‘probable post-fer19 tilization age of the unborn child’ means what, in 

20 reasonable medical judgment, will with reasonable 

21 probability be the postfertilization age of the unborn 

22 child at the time the abortion is planned to be per23 formed or induced. 

24 ‘‘(8) REASONABLE MEDICAL JUDGMENT.—The 

25 term ‘reasonable medical judgment’ means a medical 


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1 judgment that would be made by a reasonably pru2 dent physician, knowledgeable about the case and 

3 the treatment possibilities with respect to the med4 ical conditions involved. 

5 ‘‘(9) UNBORN CHILD.—The term ‘unborn child’ 

6 means an individual organism of the species homo 

7 sapiens, beginning at fertilization, until the point of 

8 being born alive as defined in section 8(b) of title 1. 

9 ‘‘(10) WOMAN.—The term ‘woman’ means a fe10 male human being whether or not she has reached 

11 the age of majority.’’. 

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

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

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

15 item: 

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

16 (c) CHAPTER HEADING AMENDMENTS.— 

17 (1) CHAPTER HEADING IN CHAPTER.—The 

18 chapter heading for chapter 74 of title 18, United 

19 States Code, is amended by striking ‘‘PARTIAL20 BIRTH ABORTIONS’’ and inserting ‘‘ABOR21 TIONS’’. 

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

23 item relating to chapter 74 in the table of chapters 

24 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’’. 

Æ 


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