I 

113TH CONGRESS 

1ST SESSION H. R. 1797 

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

children in the District of Columbia, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 26, 2013 

Mr. FRANKS of Arizona (for himself, Mr. SMITH of New Jersey, Mr. SCALISE, 

Mr. GOSAR, Mr. SCHWEIKERT, Mr. SALMON, Mr. JONES, Mr. CONAWAY, 

Mr. CRAWFORD, Mr. NUNNELEE, Mr. CRAMER, Mr. KING of Iowa, Mr. 

FLEMING, Mr. GARRETT, Mr. ROE of Tennessee, Mr. CARTER, Mr. 

NEUGEBAUER, Mrs. ROBY, Mr. COLE, Mr. HUIZENGA of Michigan, Mr. 

HARPER, Mr. MASSIE, Mr. PEARCE, Mrs. BLACKBURN, Mr. BOUSTANY, 

Mrs. HARTZLER, Mr. BRIDENSTINE, Mr. KINGSTON, Mr. GUTHRIE, Mr. 

HOLDING, Mr. GRIFFIN of Arkansas, Mr. ROGERS of Alabama, Mr. 

ADERHOLT, Mr. AMASH, Mr. BUCHANAN, Mr. DUNCAN of South Carolina, Mr. SIMPSON, Mr. MARINO, Mr. CASSIDY, Mr. BRADY of Texas, Mr. 

DUNCAN of Tennessee, Mr. GOWDY, Mr. BACHUS, Mr. LATTA, Mrs. 

BLACK, Mrs. NOEM, Ms. ROS-LEHTINEN, Mr. YOUNG of Indiana, Mr. 

POMPEO, Mr. STOCKMAN, Mr. WILSON of South Carolina, Mr. ALEXANDER, Mr. HUELSKAMP, Mr. SHUSTER, Mr. STIVERS, Mr. BARR, Mr. 

GOHMERT, Mr. FINCHER, Mr. MULLIN, Mr. BROUN of Georgia, Mr. 

LIPINSKI, Mr. BENISHEK, Mr. ROSS, Mr. TIBERI, Mr. WESTMORELAND, 

Mr. ROTHFUS, Mr. PALAZZO, Mr. LONG, Mr. BONNER, Mr. PITTS, Mr. 

PRICE of Georgia, Mr. MCKINLEY, Mr. CALVERT, Mr. JORDAN, Mr. 

WALBERG, Mr. STEWART, Mr. YODER, Mr. HULTGREN, Mr. LANKFORD, 

Mr. OLSON, Mr. SMITH of Nebraska, Mr. DESANTIS, Mr. MEADOWS, Mr. 

ROKITA, Mr. HALL, Mr. NUGENT, Mr. MULVANEY, Mr. MILLER of Florida, Mrs. WAGNER, Mr. RODNEY DAVIS of Illinois, Mr. JOHNSON of 

Ohio, Mr. FORTENBERRY, Mr. SCHOCK, and Mr. POSEY) introduced the 

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

in addition to the Committee on Oversight and Government Reform, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 


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A BILL 

To amend title 18, United States Code, to protect paincapable unborn children in the District of Columbia, 

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 ‘‘District of Columbia 

5 Pain-Capable Unborn Child Protection Act’’. 

6 SEC. 2. LEGISLATIVE FINDINGS. 

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. 


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1 (4) Subjection to such painful stimuli is associ2 ated with long-term harmful neurodevelopmental ef3 fects, such as altered pain sensitivity and, possibly, 

4 emotional, behavioral, and learning disabilities later 

5 in life. 

6 (5) For the purposes of surgery on unborn chil7 dren, fetal anesthesia is routinely administered and 

8 is associated with a decrease in stress hormones 

9 compared to their level when painful stimuli are ap10 plied without such anesthesia. 

11 (6) The position, asserted by some medical ex12 perts, that the unborn child is incapable of experi13 encing pain until a point later in pregnancy than 20 

14 weeks after fertilization predominately rests on the 

15 assumption that the ability to experience pain de16 pends on the cerebral cortex and requires nerve con17 nections between the thalamus and the cortex. How18 ever, recent medical research and analysis, especially 

19 since 2007, provides strong evidence for the conclu20 sion that a functioning cortex is not necessary to ex21 perience pain. 

22 (7) Substantial evidence indicates that children 

23 born missing the bulk of the cerebral cortex, those 

24 with hydranencephaly, nevertheless experience pain. 


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1 (8) In adult humans and in animals, stimula2 tion or ablation of the cerebral cortex does not alter 

3 pain perception, while stimulation or ablation of the 

4 thalamus does. 

5 (9) Substantial evidence indicates that struc6 tures used for pain processing in early development 

7 differ from those of adults, using different neural 

8 elements available at specific times during develop9 ment, such as the subcortical plate, to fulfill the role 

10 of pain processing. 

11 (10) The position, asserted by some commenta12 tors, that the unborn child remains in a coma-like 

13 sleep state that precludes the unborn child experi14 encing pain is inconsistent with the documented re15 action of unborn children to painful stimuli and with 

16 the experience of fetal surgeons who have found it 

17 necessary to sedate the unborn child with anesthesia 

18 to prevent the unborn child from engaging in vig19 orous movement in reaction to invasive surgery. 

20 (11) Consequently, there is substantial medical 

21 evidence that an unborn child is capable of experi22 encing pain at least by 20 weeks after fertilization, 

23 if not earlier. 

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

25 a compelling governmental interest in protecting the 


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1 lives of unborn children from the stage at which sub2 stantial medical evidence indicates that they are ca3 pable of feeling pain. 

4 (13) The compelling governmental interest in 

5 protecting the lives of unborn children from the 

6 stage at which substantial medical evidence indicates 

7 that they are capable of feeling pain is intended to 

8 be separate from and independent of the compelling 

9 governmental interest in protecting the lives of un10 born children from the stage of viability, and neither 

11 governmental interest is intended to replace the 

12 other. 

13 (14) The District Council of the District of Co14 lumbia, operating under authority delegated by Con15 gress, repealed the entire District law limiting abor16 tions, effective April 29, 2004, so that in the Dis17 trict of Columbia, abortion is now legal, for any rea18 son, until the moment of birth. 

19 (15) Article I, section 8 of the Constitution of 

20 the United States of America provides that the Con21 gress shall ‘‘exercise exclusive Legislation in all 

22 Cases whatsoever’’ over the District established as 

23 the seat of government of the United States, now 

24 known as the District of Columbia. The constitu25 tional responsibility for the protection of pain-capaVerDate Mar 15 2010 23:14 May 01, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1797.IH H1797

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1 ble unborn children within the Federal District re2 sides with the Congress. 

3 SEC. 3. DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN 

4 CHILD PROTECTION. 

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

6 States Code, is amended by inserting after section 1531 

7 the following: 

8 ‘‘§ 1532. District of Columbia pain-capable unborn 

9 child protection 

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

11 other provision of law, including any legislation of the Dis12 trict of Columbia under authority delegated by Congress, 

13 it shall be unlawful for any person to perform an abortion 

14 within the District of Columbia, or attempt to do so, un15 less in conformity with the requirements set forth in sub16 section (b). 

17 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

18 ‘‘(1) The physician performing or attempting 

19 the abortion shall first make a determination of the 

20 probable post-fertilization age of the unborn child or 

21 reasonably rely upon such a determination made by 

22 another physician. In making such a determination, 

23 the physician shall make such inquiries of the preg24 nant woman and perform or cause to be performed 

25 such medical examinations and tests as a reasonably 


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1 prudent physician, knowledgeable about the case and 

2 the medical conditions involved, would consider nec3 essary to make an accurate determination of post4 fertilization age. 

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

6 (B), the abortion shall not be performed or at7 tempted, if the probable post-fertilization age, as de8 termined under paragraph (1), of the unborn child 

9 is 20 weeks or greater. 

10 ‘‘(B) Subject to subparagraph (C), subpara11 graph (A) does not apply if, in reasonable medical 

12 judgment, the abortion is necessary to save the life 

13 of a pregnant woman whose life is endangered by a 

14 physical disorder, physical illness, or physical injury, 

15 including a life-endangering physical condition 

16 caused by or arising from the pregnancy itself, but 

17 not including psychological or emotional conditions. 

18 ‘‘(C) Notwithstanding the definitions of ‘abor19 tion’ and ‘attempt an abortion’ in this section, a 

20 physician terminating or attempting to terminate a 

21 pregnancy under the exception provided by subpara22 graph (B) may do so only in the manner which, in 

23 reasonable medical judgment, provides the best op24 portunity for the unborn child to survive, unless, in 

25 reasonable medical judgment, termination of the 


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1 pregnancy in that manner would pose a greater risk 

2 of— 

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

4 ‘‘(ii) the substantial and irreversible phys5 ical impairment of a major bodily function, not 

6 including psychological or emotional conditions, 

7 of the pregnant woman; 

8 than would other available methods. 

9 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub10 section (a) shall be fined under this title or imprisoned 

11 for not more than 2 years, or both. 

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

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

14 attempted may not be prosecuted under, or for a con15 spiracy to violate, subsection (a), or for an offense under 

16 section 2, 3, or 4 based on such a violation. 

17 ‘‘(e) CIVIL REMEDIES.— 

18 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM THE

19 ABORTION IS PERFORMED.—A woman upon whom 

20 an abortion has been performed or attempted in vio21 lation of subsection (a), may in a civil action against 

22 any person who engaged in the violation obtain ap23 propriate relief. 

24 ‘‘(2) CIVIL ACTION BY RELATIVES.—The father 

25 of an unborn child who is the subject of an abortion 


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1 performed or attempted in violation of subsection 

2 (a), or a maternal grandparent of the unborn child 

3 if the pregnant woman is an unemancipated minor, 

4 may in a civil action against any person who en5 gaged in the violation, obtain appropriate relief, un6 less the pregnancy resulted from the plaintiff’s 

7 criminal conduct or the plaintiff consented to the 

8 abortion. 

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

10 in a civil action under this subsection includes— 

11 ‘‘(A) objectively verifiable money damages 

12 for all injuries, psychological and physical, occa13 sioned by the violation of this section; 

14 ‘‘(B) statutory damages equal to three 

15 times the cost of the abortion; and 

16 ‘‘(C) punitive damages. 

17 ‘‘(4) INJUNCTIVE RELIEF.— 

18 ‘‘(A) IN GENERAL.—A qualified plaintiff 

19 may in a civil action obtain injunctive relief to 

20 prevent an abortion provider from performing 

21 or attempting further abortions in violation of 

22 this section. 

23 ‘‘(B) DEFINITION.—In this paragraph the 

24 term ‘qualified plaintiff’ means— 


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1 ‘‘(i) a woman upon whom an abortion 

2 is performed or attempted in violation of 

3 this section; 

4 ‘‘(ii) any person who is the spouse, 

5 parent, sibling or guardian of, or a current 

6 or former licensed health care provider of, 

7 that woman; or 

8 ‘‘(iii) the United States Attorney for 

9 the District of Columbia. 

10 ‘‘(5) ATTORNEYS FEES FOR PLAINTIFF.—The 

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

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

13 under this subsection. 

14 ‘‘(6) ATTORNEYS FEES FOR DEFENDANT.—If a 

15 defendant in a civil action under this section prevails 

16 and the court finds that the plaintiff’s suit was friv17 olous and brought in bad faith, the court shall also 

18 render judgment for a reasonable attorney’s fee in 

19 favor of the defendant against the plaintiff. 

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

21 paragraph (6), in a civil action under this sub22 section, no damages, attorney’s fee or other mone23 tary relief may be assessed against the woman upon 

24 whom the abortion was performed or attempted. 


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1 ‘‘(f) PROTECTION OF PRIVACY IN COURT PRO2 CEEDINGS.— 

3 ‘‘(1) IN GENERAL.—Except to the extent the 

4 Constitution or other similarly compelling reason re5 quires, in every civil or criminal action under this 

6 section, the court shall make such orders as are nec7 essary to protect the anonymity of any woman upon 

8 whom an abortion has been performed or attempted 

9 if she does not give her written consent to such dis10 closure. Such orders may be made upon motion, but 

11 shall be made sua sponte if not otherwise sought by 

12 a party. 

13 ‘‘(2) ORDERS TO PARTIES, WITNESSES, AND

14 COUNSEL.—The court shall issue appropriate orders 

15 under paragraph (1) to the parties, witnesses, and 

16 counsel and shall direct the sealing of the record and 

17 exclusion of individuals from courtrooms or hearing 

18 rooms to the extent necessary to safeguard her iden19 tity from public disclosure. Each such order shall be 

20 accompanied by specific written findings explaining 

21 why the anonymity of the woman must be preserved 

22 from public disclosure, why the order is essential to 

23 that end, how the order is narrowly tailored to serve 

24 that interest, and why no reasonable less restrictive 

25 alternative exists. 


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1 ‘‘(3) PSEUDONYM REQUIRED.—In the absence 

2 of written consent of the woman upon whom an 

3 abortion has been performed or attempted, any 

4 party, other than a public official, who brings an ac5 tion under paragraphs (1), (2), or (4) of subsection 

6 (e) shall do so under a pseudonym. 

7 ‘‘(4) LIMITATION.—This subsection shall not be 

8 construed to conceal the identity of the plaintiff or 

9 of witnesses from the defendant or from attorneys 

10 for the defendant. 

11 ‘‘(g) REPORTING.— 

12 ‘‘(1) DUTY TO REPORT.—Any physician who 

13 performs or attempts an abortion within the District 

14 of Columbia shall report that abortion to the rel15 evant District of Columbia health agency (herein16 after in this section referred to as the ‘health agen17 cy’) on a schedule and in accordance with forms and 

18 regulations prescribed by the health agency. 

19 ‘‘(2) CONTENTS OF REPORT.—The report shall 

20 include the following: 

21 ‘‘(A) POST-FERTILIZATION AGE.—For the 

22 determination of probable postfertilization age 

23 of the unborn child, whether ultrasound was 

24 employed in making the determination, and the 


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1 week of probable post-fertilization age that was 

2 determined. 

3 ‘‘(B) METHOD OF ABORTION.—Which of 

4 the following methods or combination of meth5 ods was employed: 

6 ‘‘(i) Dilation, dismemberment, and 

7 evacuation of fetal parts also known as ‘di8 lation and evacuation’. 

9 ‘‘(ii) Intra-amniotic instillation of sa10 line, urea, or other substance (specify sub11 stance) to kill the unborn child, followed by 

12 induction of labor. 

13 ‘‘(iii) Intracardiac or other intra-fetal 

14 injection of digoxin, potassium chloride, or 

15 other substance (specify substance) in16 tended to kill the unborn child, followed by 

17 induction of labor. 

18 ‘‘(iv) Partial-birth abortion, as defined 

19 in section 1531. 

20 ‘‘(v) Manual vacuum aspiration with21 out other methods. 

22 ‘‘(vi) Electrical vacuum aspiration 

23 without other methods. 


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1 ‘‘(vii) Abortion induced by use of 

2 mifepristone in combination with 

3 misoprostol. 

4 ‘‘(viii) If none of the methods de5 scribed in the other clauses of this sub6 paragraph was employed, whatever method 

7 was employed. 

8 ‘‘(C) AGE OF WOMAN.—The age or approx9 imate age of the pregnant woman. 

10 ‘‘(D) COMPLIANCE WITH REQUIREMENTS

11 FOR EXCEPTION.—The facts relied upon and 

12 the basis for any determinations required to es13 tablish compliance with the requirements for 

14 the exception provided by subsection (b)(2). 

15 ‘‘(3) EXCLUSIONS FROM REPORTS.— 

16 ‘‘(A) A report required under this sub17 section shall not contain the name or the ad18 dress of the woman whose pregnancy was ter19 minated, nor shall the report contain any other 

20 information identifying the woman. 

21 ‘‘(B) Such report shall contain a unique 

22 Medical Record Number, to enable matching 

23 the report to the woman’s medical records. 

24 ‘‘(C) Such reports shall be maintained in 

25 strict confidence by the health agency, shall not 


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1 be available for public inspection, and shall not 

2 be made available except— 

3 ‘‘(i) to the United States Attorney for 

4 the District of Columbia or that Attorney’s 

5 delegate for a criminal investigation or a 

6 civil investigation of conduct that may vio7 late this section; or 

8 ‘‘(ii) pursuant to court order in an ac9 tion under subsection (e). 

10 ‘‘(4) PUBLIC REPORT.—Not later than June 30 

11 of each year beginning after the date of enactment 

12 of this paragraph, the health agency shall issue a 

13 public report providing statistics for the previous 

14 calendar year compiled from all of the reports made 

15 to the health agency under this subsection for that 

16 year for each of the items listed in paragraph (2). 

17 The report shall also provide the statistics for all 

18 previous calendar years during which this section 

19 was in effect, adjusted to reflect any additional in20 formation from late or corrected reports. The health 

21 agency shall take care to ensure that none of the in22 formation included in the public reports could rea23 sonably lead to the identification of any pregnant 

24 woman upon whom an abortion was performed or at25 tempted. 


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1 ‘‘(5) FAILURE TO SUBMIT REPORT.— 

2 ‘‘(A) LATE FEE.—Any physician who fails 

3 to submit a report not later than 30 days after 

4 the date that report is due shall be subject to 

5 a late fee of $1,000 for each additional 30-day 

6 period or portion of a 30-day period the report 

7 is overdue. 

8 ‘‘(B) COURT ORDER TO COMPLY.—A court 

9 of competent jurisdiction may, in a civil action 

10 commenced by the health agency, direct any 

11 physician whose report under this subsection is 

12 still not filed as required, or is incomplete, more 

13 than 180 days after the date the report was 

14 due, to comply with the requirements of this 

15 section under penalty of civil contempt. 

16 ‘‘(C) DISCIPLINARY ACTION.—Intentional 

17 or reckless failure by any physician to comply 

18 with any requirement of this subsection, other 

19 than late filing of a report, constitutes suffi20 cient cause for any disciplinary sanction which 

21 the Health Professional Licensing Administra22 tion of the District of Columbia determines is 

23 appropriate, including suspension or revocation 

24 of any license granted by the Administration. 


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1 ‘‘(6) FORMS AND REGULATIONS.—Not later 

2 than 90 days after the date of the enactment of this 

3 section, the health agency shall prescribe forms and 

4 regulations to assist in compliance with this sub5 section. 

6 ‘‘(7) EFFECTIVE DATE OF REQUIREMENT.— 

7 Paragraph (1) of this subsection takes effect with 

8 respect to all abortions performed on and after the 

9 first day of the first calendar month beginning after 

10 the effective date of such forms and regulations. 

11 ‘‘(h) DEFINITIONS.—In this section the following 

12 definitions apply: 

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

14 the use or prescription of any instrument, medicine, 

15 drug, or any other substance or device— 

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

17 of a woman known to be pregnant; or 

18 ‘‘(B) to intentionally prematurely termi19 nate the pregnancy of a woman known to be 

20 pregnant, with an intention other than to in21 crease the probability of a live birth or of pre22 serving the life or health of the child after live 

23 birth, or to remove a dead unborn child. 

24 ‘‘(2) ATTEMPT AN ABORTION.—The term ‘at25 tempt’, with respect to an abortion, means conduct 


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1 that, under the circumstances as the actor believes 

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

3 of conduct planned to culminate in performing an 

4 abortion in the District of Columbia. 

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

6 means the fusion of human spermatozoon with a 

7 human ovum. 

8 ‘‘(4) HEALTH AGENCY.—The term ‘health 

9 agency’ means the Department of Health of the Dis10 trict of Columbia or any successor agency respon11 sible for the regulation of medical practice. 

12 ‘‘(5) PERFORM.—The term ‘perform’, with re13 spect to an abortion, includes induce an abortion 

14 through a medical or chemical intervention including 

15 writing a prescription for a drug or device intended 

16 to result in an abortion. 

17 ‘‘(6) PHYSICIAN.—The term ‘physician’ means 

18 a person licensed to practice medicine and surgery 

19 or osteopathic medicine and surgery, or otherwise li20 censed to legally perform an abortion. 

21 ‘‘(7) POST-FERTILIZATION AGE.—The term 

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

23 child as calculated from the fusion of a human 

24 spermatozoon with a human ovum. 


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1 ‘‘(8) PROBABLE POST-FERTILIZATION AGE OF

2 THE UNBORN CHILD.—The term ‘probable post-fer3 tilization age of the unborn child’ means what, in 

4 reasonable medical judgment, will with reasonable 

5 probability be the postfertilization age of the unborn 

6 child at the time the abortion is planned to be per7 formed or induced. 

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

9 term ‘reasonable medical judgment’ means a medical 

10 judgment that would be made by a reasonably pru11 dent physician, knowledgeable about the case and 

12 the treatment possibilities with respect to the med13 ical conditions involved. 

14 ‘‘(10) UNBORN CHILD.—The term ‘unborn 

15 child’ means an individual organism of the species 

16 homo sapiens, beginning at fertilization, until the 

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

18 of title 1. 

19 ‘‘(11) UNEMANCIPATED MINOR.—The term 

20 ‘unemancipated minor’ means a minor who is sub21 ject to the control, authority, and supervision of a 

22 parent or guardian, as determined under the law of 

23 the State in which the minor resides. 


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1 ‘‘(12) WOMAN.—The term ‘woman’ means a fe2 male human being whether or not she has reached 

3 the age of majority.’’. 

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

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

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

7 item: 

‘‘1532. District of Columbia pain-capable unborn child protection.’’. 

8 (c) CHAPTER HEADING AMENDMENTS.— 

9 (1) CHAPTER HEADING IN CHAPTER.—The 

10 chapter heading for chapter 74 of title 18, United 

11 States Code, is amended by striking ‘‘PARTIAL12 BIRTH ABORTIONS’’ and inserting ‘‘ABOR13 TIONS’’. 

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

15 item relating to chapter 74 in the table of chapters 

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

17 Code, is amended by striking ‘‘Partial-Birth Abor18 tions’’ and inserting ‘‘Abortions’’. 

Æ 


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