II 

112TH CONGRESS 

2D SESSION S. 2103 

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

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

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 13, 2012 

Mr. LEE introduced the following bill; which was read twice and referred to 

the Committee on Homeland Security and Governmental Affairs 

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 


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1 and subcortical plate by no later than 20 weeks after 

2 fertilization. 

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

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

5 child reacts to stimuli that would be recognized as 

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

7 by recoiling. 

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

9 painful stimuli is associated with significant in10 creases in stress hormones known as the stress re11 sponse. 

12 (4) Subjection to such painful stimuli is associ13 ated with long-term harmful neurodevelopmental ef14 fects, such as altered pain sensitivity and, possibly, 

15 emotional, behavioral, and learning disabilities later 

16 in life. 

17 (5) For the purposes of surgery on unborn chil18 dren, fetal anesthesia is routinely administered and 

19 is associated with a decrease in stress hormones 

20 compared to their level when painful stimuli are ap21 plied without such anesthesia. 

22 (6) The position, asserted by some medical ex23 perts, that the unborn child is incapable of experi24 encing pain until a point later in pregnancy than 20 

25 weeks after fertilization predominately rests on the 


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1 assumption that the ability to experience pain de2 pends on the cerebral cortex and requires nerve con3 nections between the thalamus and the cortex. How4 ever, recent medical research and analysis, especially 

5 since 2007, provides strong evidence for the conclu6 sion that a functioning cortex is not necessary to ex7 perience pain. 

8 (7) Substantial evidence indicates that children 

9 born missing the bulk of the cerebral cortex, those 

10 with hydranencephaly, nevertheless experience pain. 

11 (8) In adult humans and in animals, stimula12 tion or ablation of the cerebral cortex does not alter 

13 pain perception, while stimulation or ablation of the 

14 thalamus does. 

15 (9) Substantial evidence indicates that struc16 tures used for pain processing in early development 

17 differ from those of adults, using different neural 

18 elements available at specific times during develop19 ment, such as the subcortical plate, to fulfill the role 

20 of pain processing. 

21 (10) The position, asserted by some commenta22 tors, that the unborn child remains in a coma-like 

23 sleep state that precludes the unborn child experi24 encing pain is inconsistent with the documented re25 action of unborn children to painful stimuli and with 


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1 the experience of fetal surgeons who have found it 

2 necessary to sedate the unborn child with anesthesia 

3 to prevent the unborn child from engaging in vig4 orous movement in reaction to invasive surgery. 

5 (11) Consequently, there is substantial medical 

6 evidence that an unborn child is capable of experi7 encing pain at least by 20 weeks after fertilization, 

8 if not earlier. 

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

10 a compelling governmental interest in protecting the 

11 lives of unborn children from the stage at which sub12 stantial medical evidence indicates that they are ca13 pable of feeling pain. 

14 (13) The compelling governmental interest in 

15 protecting the lives of unborn children from the 

16 stage at which substantial medical evidence indicates 

17 that they are capable of feeling pain is intended to 

18 be separate from and independent of the compelling 

19 governmental interest in protecting the lives of un20 born children from the stage of viability, and neither 

21 governmental interest is intended to replace the 

22 other. 

23 (14) The District Council of the District of Co24 lumbia, operating under authority delegated by ConVerDate Mar 15 2010 00:36 Feb 14, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2103.IS S2103

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1 gress, repealed all limitations on abortion at any 

2 stage of pregnancy, effective April 29, 2004. 

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

4 the United States of America provides that the Con5 gress shall ‘‘exercise exclusive Legislation in all 

6 Cases whatsoever’’ over the District established as 

7 the seat of government of the United States, now 

8 known as the District of Columbia. The constitu9 tional responsibility for the protection of pain-capa10 ble unborn children within the Federal District re11 sides with the Congress. 

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

13 CHILD PROTECTION. 

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

15 States Code, is amended by inserting after section 1531 

16 the following: 

17 ‘‘§ 1532. District of Columbia pain-capable unborn 

18 child protection 

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

20 other provision of law, including any legislation of the Dis21 trict of Columbia under authority delegated by Congress, 

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

23 within the District of Columbia, or attempt to do so, un24 less in conformity with the requirements set forth in sub25 section (b). 


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1 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

2 ‘‘(1) The physician performing or attempting 

3 the abortion shall first make a determination of the 

4 probable post-fertilization age of the unborn child or 

5 reasonably rely upon such a determination made by 

6 another physician. In making such a determination, 

7 the physician shall make such inquiries of the preg8 nant woman and perform or cause to be performed 

9 such medical examinations and tests as a reasonably 

10 prudent physician, knowledgeable about the case and 

11 the medical conditions involved, would consider nec12 essary to make an accurate determination of post13 fertilization age. 

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

15 (B), the abortion shall not be performed or at16 tempted, if the probable post-fertilization age, as de17 termined under paragraph (1), of the unborn child 

18 is 20 weeks or greater. 

19 ‘‘(B) Subject to subparagraph (C), subpara20 graph (A) does not apply if, in reasonable medical 

21 judgment, the abortion is necessary to save the life 

22 of a pregnant woman whose life is endangered by a 

23 physical disorder, physical illness, or physical injury, 

24 including a life-endangering physical condition 

25 caused by or arising from the pregnancy itself, but 


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1 not including psychological or emotional conditions 

2 or any claim or diagnosis that the woman will en3 gage in conduct which she intends to result in her 

4 death. 

5 ‘‘(C) A physician terminating or attempting to 

6 terminate a pregnancy under the exception provided 

7 by subparagraph (B) may do so only in the manner 

8 which, in reasonable medical judgment, provides the 

9 best opportunity for the unborn child to survive, un10 less, in reasonable medical judgment, termination of 

11 the pregnancy in that manner would pose a greater 

12 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 sub20 section (a) shall be fined under this title or imprisoned 

21 for not more than 2 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 conVerDate Mar 15 2010 00:36 Feb 14, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2103.IS S2103

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

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

3 ‘‘(e) CIVIL REMEDIES.— 

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

5 ABORTION IS PERFORMED.—A woman upon whom 

6 an abortion has been performed or attempted in vio7 lation of subsection (a), may in a civil action against 

8 any person who engaged in the violation obtain ap9 propriate relief. 

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

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

12 performed or attempted in violation of subsection 

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

14 if the pregnant woman is an unemancipated minor, 

15 may in a civil action against any person who en16 gaged in the violation, obtain appropriate relief, un17 less the pregnancy resulted from the plaintiff’s 

18 criminal conduct or the plaintiff consented to the 

19 abortion. 

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

21 in a civil action under this subsection includes— 

22 ‘‘(A) objectively verifiable money damages 

23 for all injuries, psychological and physical, occa24 sioned by the violation of this section; 


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1 ‘‘(B) statutory damages equal to three 

2 times the cost of the abortion; and 

3 ‘‘(C) punitive damages. 

4 ‘‘(4) INJUNCTIVE RELIEF.— 

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

6 may in a civil action obtain injunctive relief to 

7 prevent an abortion provider from performing 

8 or attempting further abortions in violation of 

9 this section. 

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

11 term ‘qualified plaintiff’ means— 

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

13 is performed or attempted in violation of 

14 this section; 

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

16 parent, sibling or guardian of, or a current 

17 or former licensed health care provider of, 

18 that woman; or 

19 ‘‘(iii) the United States Attorney for 

20 the District of Columbia. 

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

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

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

24 under this subsection. 


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

2 defendant in a civil action under this section prevails 

3 and the court finds that the plaintiff’s suit was friv4 olous and brought in bad faith, the court shall also 

5 render judgment for a reasonable attorney’s fee in 

6 favor of the defendant against the plaintiff. 

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

8 paragraph (6), 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) PROTECTION OF PRIVACY IN COURT PRO13 CEEDINGS.— 

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

15 Constitution or other similarly compelling reason re16 quires, in every civil or criminal action under this 

17 section, the court shall make such orders as are nec18 essary to protect the anonymity of any woman upon 

19 whom an abortion has been performed or attempted 

20 if she does not give her written consent to such dis21 closure. Such orders may be made upon motion, but 

22 shall be made sua sponte if not otherwise sought by 

23 a party. 

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

25 COUNSEL.—The court shall issue appropriate orders 


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

2 counsel and shall direct the sealing of the record and 

3 exclusion of individuals from courtrooms or hearing 

4 rooms to the extent necessary to safeguard her iden5 tity from public disclosure. Each such order shall be 

6 accompanied by specific written findings explaining 

7 why the anonymity of the woman must be preserved 

8 from public disclosure, why the order is essential to 

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

10 that interest, and why no reasonable less restrictive 

11 alternative exists. 

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

13 of written consent of the woman upon whom an 

14 abortion has been performed or attempted, any 

15 party, other than a public official, who brings an ac16 tion under paragraphs (1), (2), or (4) of subsection 

17 (e) shall do so under a pseudonym. 

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

19 construed to conceal the identity of the plaintiff or 

20 of witnesses from the defendant or from attorneys 

21 for the defendant. 

22 ‘‘(g) REPORTING.— 

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

24 performs or attempts an abortion within the District 

25 of Columbia shall report that abortion to the relVerDate Mar 15 2010 00:36 Feb 14, 2012 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2103.IS S2103

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1 evant District of Columbia health agency (herein2 after in this section referred to as the ‘health agen3 cy’) on a schedule and in accordance with forms and 

4 regulations prescribed by the health agency. 

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

6 include the following: 

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

8 determination of probable postfertilization age 

9 of the unborn child, whether ultrasound was 

10 employed in making the determination, and the 

11 week of probable post-fertilization age that was 

12 determined. 

13 ‘‘(B) METHOD OF ABORTION.—Which of 

14 the following methods or combination of meth15 ods was employed: 

16 ‘‘(i) Dilation, dismemberment, and 

17 evacuation of fetal parts also known as ‘di18 lation and evacuation’. 

19 ‘‘(ii) Intra-amniotic instillation of sa20 line, urea, or other substance (specify sub21 stance) to kill the unborn child, followed by 

22 induction of labor. 

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

24 injection of digoxin, potassium chloride, or 

25 other substance (specify substance) inVerDate Mar 15 2010 00:36 Feb 14, 2012 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2103.IS S2103

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1 tended to kill the unborn child, followed by 

2 induction of labor. 

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

4 in section 1531. 

5 ‘‘(v) Manual vacuum aspiration with6 out other methods. 

7 ‘‘(vi) Electrical vacuum aspiration 

8 without other methods. 

9 ‘‘(vii) Abortion induced by use of 

10 mifepristone in combination with 

11 misoprostol; or 

12 ‘‘(viii) if none of the methods de13 scribed in the other clauses of this sub14 paragraph was employed, whatever method 

15 was employed. 

16 ‘‘(C) AGE OF WOMAN.—The age or approx17 imate age of the pregnant woman. 

18 ‘‘(D) COMPLIANCE WITH REQUIREMENTS

19 FOR EXCEPTION.—The facts relied upon and 

20 the basis for any determinations required to es21 tablish compliance with the requirements for 

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

23 ‘‘(3) EXCLUSIONS FROM REPORTS.— 

24 ‘‘(A) A report required under this sub25 section shall not contain the name or the adVerDate Mar 15 2010 00:36 Feb 14, 2012 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2103.IS S2103

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1 dress of the woman whose pregnancy was ter2 minated, nor shall the report contain any other 

3 information identifying the woman. 

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

5 Medical Record Number, to enable matching 

6 the report to the woman’s medical records. 

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

8 strict confidence by the health agency, shall not 

9 be available for public inspection, and shall not 

10 be made available except— 

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

12 the District of Columbia or that Attorney’s 

13 delegate for a criminal investigation or a 

14 civil investigation of conduct that may vio15 late this section; or 

16 ‘‘(ii) pursuant to court order in an ac17 tion under subsection (e). 

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

19 of each year beginning after the date of enactment 

20 of this paragraph, the health agency shall issue a 

21 public report providing statistics for the previous 

22 calendar year compiled from all of the reports made 

23 to the health agency under this subsection for that 

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

25 The report shall also provide the statistics for all 


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1 previous calendar years during which this section 

2 was in effect, adjusted to reflect any additional in3 formation from late or corrected reports. The health 

4 agency shall take care to ensure that none of the in5 formation included in the public reports could rea6 sonably lead to the identification of any pregnant 

7 woman upon whom an abortion was performed or at8 tempted. 

9 ‘‘(5) FAILURE TO SUBMIT REPORT.— 

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

11 to submit a report not later than 30 days after 

12 the date that report is due shall be subject to 

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

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

15 is overdue. 

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

17 of competent jurisdiction may, in a civil action 

18 commenced by the health agency, direct any 

19 physician whose report under this subsection is 

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

21 than 180 days after the date the report was 

22 due, to comply with the requirements of this 

23 section under penalty of civil contempt. 

24 ‘‘(C) DISCIPLINARY ACTION.—Intentional 

25 or reckless failure by any physician to comply 


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1 with any requirement of this subsection, other 

2 than late filing of a report, constitutes suffi3 cient cause for any disciplinary sanction which 

4 the Health Professional Licensing Administra5 tion of the District of Columbia determines is 

6 appropriate, including suspension or revocation 

7 of any license granted by the Administration. 

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

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

10 section, the health agency shall prescribe forms and 

11 regulations to assist in compliance with this sub12 section. 

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

14 Paragraph (1) of this subsection takes effect with 

15 respect to all abortions performed on and after the 

16 first day of the first calendar month beginning after 

17 the effective date of such forms and regulations. 

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

19 definitions apply: 

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

21 the use or prescription of any instrument, medicine, 

22 drug, or any other substance or device— 

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

24 of a woman known to be pregnant; or 


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1 ‘‘(B) to otherwise intentionally terminate 

2 the pregnancy of a woman known to be preg3 nant with an intention other than to increase 

4 the probability of a live birth, to preserve the 

5 life or health of the child after live birth, or to 

6 remove a dead unborn child who died as the re7 sult of natural causes in utero, accidental trau8 ma, or a criminal assault on the pregnant 

9 woman or her unborn child, and which causes 

10 the premature termination of the pregnancy. 

11 ‘‘(2) ATTEMPT AN ABORTION.—The term ‘at12 tempt’, with respect to an abortion, means conduct 

13 that, under the circumstances as the actor believes 

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

15 of conduct planned to culminate in performing an 

16 abortion in the District of Columbia. 

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

18 means the fusion of human spermatozoon with a 

19 human ovum. 

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

21 agency’ means the Department of Health of the Dis22 trict of Columbia or any successor agency respon23 sible for the regulation of medical practice. 

24 ‘‘(5) PERFORM.—The term ‘perform’, with re25 spect to an abortion, includes induce 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 ‘‘(6) PHYSICIAN.—The term ‘physician’ means 

5 a person licensed to practice medicine and surgery 

6 or osteopathic medicine and surgery, or otherwise li7 censed to legally perform an abortion. 

8 ‘‘(7) 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 ‘‘(8) 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 postfertilization age of the unborn 

17 child at the time the abortion is planned to be per18 formed or induced. 

19 ‘‘(9) 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 ‘‘(10) 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 ‘‘(11) UNEMANCIPATED MINOR.—The term 

7 ‘unemancipated minor’ means a minor who is sub8 ject to the control, authority, and supervision of a 

9 parent or guardian, as determined under the law of 

10 the State in which the minor resides. 

11 ‘‘(12) WOMAN.—The term ‘woman’ means a fe12 male human being whether or not she has reached 

13 the age of majority.’’. 

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

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

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

17 item: 

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

18 (c) CHAPTER HEADING AMENDMENTS.— 

19 (1) CHAPTER HEADING IN CHAPTER.—The 

20 chapter heading for chapter 74 of title 18, United 

21 States Code, is amended by striking ‘‘PARTIAL 

22 BIRTH ABORTIONS’’ and inserting ‘‘ABOR23 TIONS’’. 

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

25 item relating to chapter 74 in the table of chapters 


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

2 Code, is amended by striking ‘‘PARTIAL BIRTH 

3 ABORTIONS’’ and inserting ‘‘ABORTIONS’’. 

Æ 


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