IB 

Union Calendar No. 77 

113TH CONGRESS 

1ST SESSION H. R. 1797 

[Report No. 113–109, Part I] 

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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JUNE 14, 2013 

Additional sponsors: Mr. KELLY of Pennsylvania, Mr. FLORES, Ms. JENKINS, 

Mr. HARRIS, Mr. WEBER of Texas, Mr. FORBES, Mr. TERRY, Mr. 

BISHOP of Utah, Mr. KLINE, Mr. CAMP, Mr. FLEISCHMANN, Mr. LABRADOR, Mr. BARLETTA, Mr. LUCAS, Mr. MARCHANT, Mr. RAHALL, Mr. 

LUETKEMEYER, Mr. SENSENBRENNER, Mr. PITTENGER, Mr. DAINES, 

Mr. WOMACK, Mr. MCINTYRE, Mrs. ELLMERS, Mr. SAM JOHNSON of 

Texas, Mrs. BACHMANN, Mr. LATHAM, Mr. THOMPSON of Pennsylvania, 

Mr. LAMBORN, Mr. SOUTHERLAND, Mr. RIBBLE, Mr. BARTON, Mr. 

CHABOT, Mr. SMITH of Texas, Mr. WENSTRUP, Mr. COTTON, Mr. ROGERS of Kentucky, Mr. COLLINS of Georgia, Mr. STUTZMAN, Mr. COBLE, 

Mr. MURPHY of Pennsylvania, Mr. FARENTHOLD, Mr. MCHENRY, Mr. 

DUFFY, Mr. PETERSON, Mr. HENSARLING, Mr. TURNER, Mr. POE of 

Texas, Mr. DENHAM, Ms. FOXX, Mr. HUDSON, Mrs. BROOKS of Indiana, 

Mr. KING of New York, Mr. BENTIVOLIO, Mr. BROOKS of Alabama, Mr. 

RENACCI, Mr. MESSER, Mr. BILIRAKIS, Mr. MCCLINTOCK, Mrs. 

WALORSKI, Mr. MICA, Mrs. MILLER of Michigan, Mr. GIBBS, Mr. 

LAMALFA, Mr. YOHO, Mr. PERRY, Mr. AUSTIN SCOTT of Georgia, Mr. 

NUNES, Mr. MCCAUL, Mr. RADEL, Mr. ROSKAM, Mr. REED, Mr. 

GINGREY of Georgia, Mr. CRENSHAW, Mr. COLLINS of New York, Mr. 

BUCSHON, Mr. GRIFFITH of Virginia, Mr. JOYCE, Mr. DIAZ-BALART, Mr. 

GOODLATTE, Mr. SANFORD, Mr. CULBERSON, Mr. RICE of South Carolina, Mr. WOLF, Mr. GRAVES of Missouri, Mr. WITTMAN, Mr. SMITH of 

Missouri, Mr. PETRI, Mr. GRAVES of Georgia, Mr. WEBSTER of Florida, 

Mr. RIGELL, and Mr. HURT


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JUNE 14, 2013 

Reported from the Committee on the Judiciary with amendments 

[Strike out all after the enacting clause and insert the part printed in italic] 

JUNE 14, 2013 

The Committee on Oversight and Government Reform discharged; committed 

to the Committee of the Whole House on the State of the Union and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on April 26, 2013] 


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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. 


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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: 

10 (1) Pain receptors (nociceptors) are present 

11 throughout the unborn child’s entire body and nerves 

12 link these receptors to the brain’s thalamus and sub13 cortical plate by no later than 20 weeks after fertiliza14 tion. 

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

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

17 reacts to stimuli that would be recognized as painful 

18 if applied to an adult human, for example, by recoil19 ing. 

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

21 painful stimuli is associated with significant in22 creases in stress hormones known as the stress re23 sponse. 

24 (4) Subjection to such painful stimuli is associ25 ated with long-term harmful neurodevelopmental efVerDate Mar 15 2010 02:16 Jun 15, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H1797.RH H1797

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1 fects, such as altered pain sensitivity and, possibly, 

2 emotional, behavioral, and learning disabilities later 

3 in life. 

4 (5) For the purposes of surgery on unborn chil5 dren, fetal anesthesia is routinely administered and is 

6 associated with a decrease in stress hormones com7 pared to their level when painful stimuli are applied 

8 without such anesthesia. In the United States, surgery 

9 of this type is being performed by 20 weeks after fer10 tilization and earlier in specialized units affiliated 

11 with children’s hospitals. 

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

13 that the unborn child is incapable of experiencing 

14 pain until a point later in pregnancy than 20 weeks 

15 after fertilization predominately rests on the assump16 tion that the ability to experience pain depends on 

17 the cerebral cortex and requires nerve connections be18 tween the thalamus and the cortex. However, recent 

19 medical research and analysis, especially since 2007, 

20 provides strong evidence for the conclusion that a 

21 functioning cortex is not necessary to experience 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 structures 

6 used for pain processing in early development differ 

7 from those of adults, using different neural elements 

8 available at specific times during development, such 

9 as the subcortical plate, to fulfill the role of pain 

10 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 reac15 tion of unborn children to painful stimuli and with 

16 the experience of fetal surgeons who have found it nec17 essary to sedate the unborn child with anesthesia to 

18 prevent the unborn child from engaging in vigorous 

19 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, if 

23 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 stage 

6 at which substantial medical evidence indicates that 

7 they are capable of feeling pain is intended to be sep8 arate from and independent of the compelling govern9 mental interest in protecting the lives of unborn chil10 dren from the stage of viability, and neither govern11 mental interest is intended to replace the other. 

12 (14) Congress has authority to extend protection 

13 to pain-capable unborn children under the Supreme 

14 Court’s Commerce Clause precedents and under the 

15 Constitution’s grants of powers to Congress under the 

16 Equal Protection, Due Process, and Enforcement 

17 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 the 

21 following: 

22 ‘‘§ 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) The physician performing or attempting the 

5 abortion shall first make a determination of the prob6 able post-fertilization age of the unborn child or rea7 sonably rely upon such a determination made by an8 other physician. In making such a determination, the 

9 physician shall make such inquiries of the pregnant 

10 woman and perform or cause to be performed such 

11 medical examinations and tests as a reasonably pru12 dent physician, knowledgeable about the case and the 

13 medical conditions involved, would consider necessary 

14 to make an accurate determination of post-fertiliza15 tion age. 

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

17 (B), the abortion shall not be performed or attempted, 

18 if the probable post-fertilization age, as determined 

19 under paragraph (1), of the unborn child is 20 weeks 

20 or greater. 

21 ‘‘(B) Subject to subparagraph (C), subparagraph 

22 (A) does not apply if, in reasonable medical judg23 ment, the abortion is necessary to save the life of a 

24 pregnant woman whose life is endangered by a phys25 ical disorder, physical illness, or physical injury, inVerDate Mar 15 2010 02:16 Jun 15, 2013 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H1797.RH H1797

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1 cluding a life-endangering physical condition caused 

2 by or arising from the pregnancy itself, but not in3 cluding psychological or emotional conditions. 

4 ‘‘(C) Notwithstanding the definitions of ‘abor5 tion’ and ‘attempt an abortion’ in this section, a phy6 sician terminating or attempting to terminate a preg7 nancy under the exception provided by subparagraph 

8 (B) may do so only in the manner which, in reason9 able medical judgment, provides the best opportunity 

10 for the unborn child to survive, unless, in reasonable 

11 medical judgment, termination of the pregnancy in 

12 that manner would pose a greater risk of— 

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

14 ‘‘(ii) the substantial and irreversible phys15 ical impairment of a major bodily function, not 

16 including psychological or emotional conditions, 

17 of the pregnant woman; 

18 than would other available methods. 

19 ‘‘(c) CRIMINAL PENALTY.—Whoever violates subsection 

20 (a) shall be fined under this title or imprisoned for not more 

21 than 5 years, or both. 

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

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

24 attempted may not be prosecuted under, or for a conspiracy 


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1 to violate, subsection (a), or for an offense under section 

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

3 ‘‘(e) DEFINITIONS.—In this section the following defi4 nitions apply: 

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

6 use or prescription of any instrument, medicine, 

7 drug, or any other substance or device— 

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

9 of a woman known to be pregnant; or 

10 ‘‘(B) to intentionally terminate the preg11 nancy of a woman known to be pregnant, with 

12 an intention other than— 

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

14 birth and preserve the life and health of the 

15 child born alive; or 

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

17 ‘‘(2) ATTEMPT AN ABORTION.—The term ‘at18 tempt’, with respect to an abortion, means conduct 

19 that, under the circumstances as the actor believes 

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

21 of conduct planned to culminate in performing an 

22 abortion. 

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

24 means the fusion of human spermatozoon with a 

25 human ovum. 


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1 ‘‘(4) PERFORM.—The term ‘perform’, with re2 spect to an abortion, includes induce an abortion 

3 through a medical or chemical intervention including 

4 writing a prescription for a drug or device intended 

5 to result in an abortion. 

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

7 person licensed to practice medicine and surgery or 

8 osteopathic medicine and surgery, or otherwise legally 

9 authorized to perform an abortion. 

10 ‘‘(6) POST-FERTILIZATION AGE.—The term ‘post11 fertilization age’ means the age of the unborn child as 

12 calculated from the fusion of a human spermatozoon 

13 with a human ovum. 

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

15 THE UNBORN CHILD.—The term ‘probable post-fer16 tilization age of the unborn child’ means what, in 

17 reasonable medical judgment, will with reasonable 

18 probability be the postfertilization age of the unborn 

19 child at the time the abortion is planned to be per20 formed or induced. 

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

22 term ‘reasonable medical judgment’ means a medical 

23 judgment that would be made by a reasonably pru24 dent physician, knowledgeable about the case and the 


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1 treatment possibilities with respect to the medical 

2 conditions involved. 

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

4 means an individual organism of the species homo 

5 sapiens, beginning at fertilization, until the point of 

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

7 ‘‘(10) WOMAN.—The term ‘woman’ means a fe8 male human being whether or not she has reached the 

9 age of majority.’’. 

10 (b) CLERICAL AMENDMENT.—The table of sections at 

11 the beginning of chapter 74 of title 18, United States Code, 

12 is amended by adding at the end the following new item: 

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

13 (c) CHAPTER HEADING AMENDMENTS.— 

14 (1) CHAPTER HEADING IN CHAPTER.—The chap15 ter heading for chapter 74 of title 18, United States 

16 Code, is amended by striking ‘‘PARTIAL-BIRTH 

17 ABORTIONS’’ and inserting ‘‘ABORTIONS’’. 

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

19 relating to chapter 74 in the table of chapters at the 

20 beginning of part I of title 18, United States Code, 

21 is amended by striking ‘‘Partial-Birth Abortions’’ 

22 and inserting ‘‘Abortions’’. 

Amend the title so as to read: ‘‘A bill to amend title 

18, United States Code, to protect pain-capable unborn 

children, and for other purposes.’’. 


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Union Calendar No. 77 

113TH CONGRESS 

1ST SESSION H. R. 1797 

[Report No. 113–109, Part I] 

A BILL 

To amend title 18, United States Code, to protect 

Columbia, and for other purposes. pain-capable unborn children in the District of 

JUNE 14, 2013 

Reported from the Committee on the Judiciary with 

amendments 

JUNE 14, 2013 

The Committee on Oversight and Government Reform 

printed House on the State of the Union and ordered to be discharged; committed to the Committee of the Whole 


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