IIB 

113TH CONGRESS 

1ST SESSION H. R. 1797 

IN THE SENATE OF THE UNITED STATES 

JUNE 19, 2013 

Received; read twice and referred to the Committee on the Judiciary 

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 subVerDate Mar 15 2010 20:51 Jun 20, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1797.RFS H1797

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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 ‘‘§ 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 

5 the abortion shall first make a determination of the 

6 probable post-fertilization age of the unborn child or 

7 reasonably rely upon such a determination made by 

8 another physician. In making such a determination, 

9 the physician shall make such inquiries of the preg10 nant woman and perform or cause to be performed 

11 such medical examinations and tests as a reasonably 

12 prudent physician, knowledgeable about the case and 

13 the medical conditions involved, would consider nec14 essary to make an accurate determination of post15 fertilization age. 

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

17 (B), the abortion shall not be performed or at18 tempted, if the probable post-fertilization age, as de19 termined under paragraph (1), of the unborn child 

20 is 20 weeks or greater. 

21 ‘‘(B) Subject to subparagraph (C), subpara22 graph (A) does not apply if— 

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

24 abortion is necessary to save the life of a preg25 nant woman whose life is endangered by a 


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1 physical disorder, physical illness, or physical 

2 injury, including a life-endangering physical 

3 condition caused by or arising from the preg4 nancy itself, but not including psychological or 

5 emotional conditions; or 

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

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

8 has been reported at any time prior to the abor9 tion to an appropriate law enforcement agency, 

10 or if the incest against a minor has been re11 ported at any time prior to the abortion to an 

12 appropriate law enforcement agency or to a 

13 government agency legally authorized to act on 

14 reports of child abuse or neglect. 

15 ‘‘(C) Notwithstanding the definitions of ‘abor16 tion’ and ‘attempt an abortion’ in this section, a 

17 physician terminating or attempting to terminate a 

18 pregnancy under an exception provided by subpara19 graph (B) may do so only in the manner which, in 

20 reasonable medical judgment, provides the best op21 portunity for the unborn child to survive, unless, in 

22 reasonable medical judgment, termination of the 

23 pregnancy in that manner would pose a greater risk 

24 of— 

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


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1 ‘‘(ii) the substantial and irreversible phys2 ical impairment of a major bodily function, not 

3 including psychological or emotional conditions, 

4 of the pregnant woman; 

5 than would other available methods. 

6 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub7 section (a) shall be fined under this title or imprisoned 

8 for not more than 5 years, or both. 

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

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

11 attempted may not be prosecuted under, or for a con12 spiracy to violate, subsection (a), or for an offense under 

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

14 ‘‘(e) DEFINITIONS.—In this section the following 

15 definitions apply: 

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

17 the use or prescription of any instrument, medicine, 

18 drug, or any other substance or device— 

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

20 of a woman known to be pregnant; or 

21 ‘‘(B) to intentionally terminate the preg22 nancy of a woman known to be pregnant, with 

23 an intention other than— 


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

2 birth and preserve the life and health of 

3 the child born alive; or 

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

5 ‘‘(2) ATTEMPT AN ABORTION.—The term ‘at6 tempt’, with respect to an abortion, means conduct 

7 that, under the circumstances as the actor believes 

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

9 of conduct planned to culminate in performing an 

10 abortion. 

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

12 means the fusion of human spermatozoon with a 

13 human ovum. 

14 ‘‘(4) PERFORM.—The term ‘perform’, with re15 spect to an abortion, includes induce an abortion 

16 through a medical or chemical intervention including 

17 writing a prescription for a drug or device intended 

18 to result in an abortion. 

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

20 a person licensed to practice medicine and surgery 

21 or osteopathic medicine and surgery, or otherwise le22 gally authorized to perform an abortion. 

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

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


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1 child as calculated from the fusion of a human 

2 spermatozoon with a human ovum. 

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

4 THE UNBORN CHILD.—The term ‘probable post-fer5 tilization age of the unborn child’ means what, in 

6 reasonable medical judgment, will with reasonable 

7 probability be the postfertilization age of the unborn 

8 child at the time the abortion is planned to be per9 formed or induced. 

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

11 term ‘reasonable medical judgment’ means a medical 

12 judgment that would be made by a reasonably pru13 dent physician, knowledgeable about the case and 

14 the treatment possibilities with respect to the med15 ical conditions involved. 

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

17 means an individual organism of the species homo 

18 sapiens, beginning at fertilization, until the point of 

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

20 ‘‘(10) WOMAN.—The term ‘woman’ means a fe21 male human being whether or not she has reached 

22 the age of majority.’’. 

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

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


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

2 item: 

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

3 (c) CHAPTER HEADING AMENDMENTS.— 

4 (1) CHAPTER HEADING IN CHAPTER.—The 

5 chapter heading for chapter 74 of title 18, United 

6 States Code, is amended by striking ‘‘PARTIAL7 BIRTH ABORTIONS’’ and inserting ‘‘ABOR8 TIONS’’. 

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

10 item relating to chapter 74 in the table of chapters 

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

12 Code, is amended by striking ‘‘Partial-Birth Abor13 tions’’ and inserting ‘‘Abortions’’. 

Passed the House of Representatives June 18, 2013. 

Attest: KAREN L. HAAS, 

Clerk. 


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