II 

113TH CONGRESS 

1ST SESSION S. 886 

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 

MAY 7, 2013 

Mr. LEE (for himself, Mr. BARRASSO, Mr. BLUNT, Mr. BOOZMAN, Mr. BURR, 

Mr. ENZI, Mr. CHAMBLISS, Mr. COATS, Mr. COCHRAN, Mr. COBURN, Mr. 

CORNYN, Mr. CRAPO, Mr. CRUZ, Mrs. FISCHER, Mr. GRAHAM, Mr. 

GRASSLEY, Mr. HATCH, Mr. INHOFE, Mr. JOHANNS, Mr. JOHNSON of 

Wisconsin, Mr. MCCONNELL, Mr. MORAN, Mr. PAUL, Mr. PORTMAN, Mr. 

RISCH, Mr. ROBERTS, Mr. RUBIO, Mr. SCOTT, Mr. SESSIONS, Mr. 

TOOMEY, Mr. VITTER, Mr. WICKER, and Ms. AYOTTE) 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’’. 

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1 SEC. 2. LEGISLATIVE FINDINGS. 

2 Congress finds and declares the following: 

3 (1) Pain receptors (nociceptors) are present 

4 throughout the unborn child’s entire body and 

5 nerves link these receptors to the brain’s thalamus 

6 and subcortical plate by no later than 20 weeks after 

7 fertilization. 

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

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

10 child reacts to stimuli that would be recognized as 

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

12 by recoiling. 

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

14 painful stimuli is associated with significant in15 creases in stress hormones known as the stress re16 sponse. 

17 (4) Subjection to such painful stimuli is associ18 ated with long-term harmful neurodevelopmental ef19 fects, such as altered pain sensitivity and, possibly, 

20 emotional, behavioral, and learning disabilities later 

21 in life. 

22 (5) For the purposes of surgery on unborn chil23 dren, fetal anesthesia is routinely administered and 

24 is associated with a decrease in stress hormones 

25 compared to their level when painful stimuli are ap26 plied without such anesthesia. 

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1 (6) The position, asserted by some medical ex2 perts, that the unborn child is incapable of experi3 encing pain until a point later in pregnancy than 20 

4 weeks after fertilization predominately rests on the 

5 assumption that the ability to experience pain de6 pends on the cerebral cortex and requires nerve con7 nections between the thalamus and the cortex. How8 ever, recent medical research and analysis, especially 

9 since 2007, provides strong evidence for the conclu10 sion that a functioning cortex is not necessary to ex11 perience pain. 

12 (7) Substantial evidence indicates that children 

13 born missing the bulk of the cerebral cortex, those 

14 with hydranencephaly, nevertheless experience pain. 

15 (8) In adult humans and in animals, stimula16 tion or ablation of the cerebral cortex does not alter 

17 pain perception, while stimulation or ablation of the 

18 thalamus does. 

19 (9) Substantial evidence indicates that struc20 tures used for pain processing in early development 

21 differ from those of adults, using different neural 

22 elements available at specific times during develop23 ment, such as the subcortical plate, to fulfill the role 

24 of pain processing. 

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1 (10) The position, asserted by some commenta2 tors, that the unborn child remains in a coma-like 

3 sleep state that precludes the unborn child experi4 encing pain is inconsistent with the documented re5 action of unborn children to painful stimuli and with 

6 the experience of fetal surgeons who have found it 

7 necessary to sedate the unborn child with anesthesia 

8 to prevent the unborn child from engaging in vig9 orous movement in reaction to invasive surgery. 

10 (11) Consequently, there is substantial medical 

11 evidence that an unborn child is capable of experi12 encing pain at least by 20 weeks after fertilization, 

13 if not earlier. 

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

15 a compelling governmental interest in protecting the 

16 lives of unborn children from the stage at which sub17 stantial medical evidence indicates that they are ca18 pable of feeling pain. 

19 (13) The compelling governmental interest in 

20 protecting the lives of unborn children from the 

21 stage at which substantial medical evidence indicates 

22 that they are capable of feeling pain is intended to 

23 be separate from and independent of the compelling 

24 governmental interest in protecting the lives of un25 born children from the stage of viability, and neither 

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1 governmental interest is intended to replace the 

2 other. 

3 (14) The District Council of the District of Co4 lumbia, operating under authority delegated by Con5 gress, repealed the entire District law limiting abor6 tions, effective April 29, 2004, so that in the Dis7 trict of Columbia, abortion is now legal, for any rea8 son, until the moment of birth. 

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

10 the United States of America provides that the Con11 gress shall ‘‘exercise exclusive Legislation in all 

12 Cases whatsoever’’ over the District established as 

13 the Seat of Government of the United States, now 

14 known as the District of Columbia. The constitu15 tional responsibility for the protection of pain-capa16 ble unborn children within the Federal District re17 sides with the Congress. 

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

19 CHILD PROTECTION. 

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

21 States Code, is amended by inserting after section 1531 

22 the following: 

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1 ‘‘§ 1532. District of Columbia pain-capable unborn 

2 child protection 

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

4 other provision of law, including any legislation of the Dis5 trict of Columbia under authority delegated by Congress, 

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

7 within the District of Columbia, or attempt to do so, un8 less in conformity with the requirements set forth in sub9 section (b). 

10 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

11 ‘‘(1) The physician performing or attempting 

12 the abortion shall first make a determination of the 

13 probable post-fertilization age of the unborn child or 

14 reasonably rely upon such a determination made by 

15 another physician. In making such a determination, 

16 the physician shall make such inquiries of the preg17 nant woman and perform or cause to be performed 

18 such medical examinations and tests as a reasonably 

19 prudent physician, knowledgeable about the case and 

20 the medical conditions involved, would consider nec21 essary to make an accurate determination of post22 fertilization age. 

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

24 (B), the abortion shall not be performed or at25 tempted, if the probable post-fertilization age, as demstockstill on DSK4VPTVN1PROD with BILLS

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1 termined under paragraph (1), of the unborn child 

2 is 20 weeks or greater. 

3 ‘‘(B) Subject to subparagraph (C), subpara4 graph (A) does not apply if, in reasonable medical 

5 judgment, the abortion is necessary to save the life 

6 of a pregnant woman whose life is endangered by a 

7 physical disorder, physical illness, or physical injury, 

8 including a life-endangering physical condition 

9 caused by or arising from the pregnancy itself, but 

10 not including psychological or emotional conditions. 

11 ‘‘(C) Notwithstanding the definitions of ‘abor12 tion’ and ‘attempt an abortion’ in this section, a 

13 physician terminating or attempting to terminate a 

14 pregnancy under the exception provided by subpara15 graph (B) may do so only in the manner which, in 

16 reasonable medical judgment, provides the best op17 portunity for the unborn child to survive, unless, in 

18 reasonable medical judgment, termination of the 

19 pregnancy in that manner would pose a greater risk 

20 of— 

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

22 ‘‘(ii) the substantial and irreversible phys23 ical impairment of a major bodily function, not 

24 including psychological or emotional conditions, 

25 of the pregnant woman; 

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1 than would other available methods. 

2 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub3 section (a) shall be fined under this title or imprisoned 

4 for not more than 2 years, or both. 

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

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

7 attempted may not be prosecuted under, or for a con8 spiracy to violate, subsection (a), or for an offense under 

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

10 ‘‘(e) CIVIL REMEDIES.— 

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

12 ABORTION IS PERFORMED.—A woman upon whom 

13 an abortion has been performed or attempted in vio14 lation of subsection (a), may in a civil action against 

15 any person who engaged in the violation obtain ap16 propriate relief. 

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

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

19 performed or attempted in violation of subsection 

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

21 if the pregnant woman is an unemancipated minor, 

22 may in a civil action against any person who en23 gaged in the violation, obtain appropriate relief, un24 less the pregnancy resulted from the plaintiff’s 

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1 criminal conduct or the plaintiff consented to the 

2 abortion. 

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

4 in a civil action under this subsection includes— 

5 ‘‘(A) objectively verifiable money damages 

6 for all injuries, psychological and physical, occa7 sioned by the violation of this section; 

8 ‘‘(B) statutory damages equal to three 

9 times the cost of the abortion; and 

10 ‘‘(C) punitive damages. 

11 ‘‘(4) INJUNCTIVE RELIEF.— 

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

13 may in a civil action obtain injunctive relief to 

14 prevent an abortion provider from performing 

15 or attempting further abortions in violation of 

16 this section. 

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

18 term ‘qualified plaintiff’ means— 

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

20 is performed or attempted in violation of 

21 this section; 

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

23 parent, sibling or guardian of, or a current 

24 or former licensed health care provider of, 

25 that woman; or 

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1 ‘‘(iii) the United States Attorney for 

2 the District of Columbia. 

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

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

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

6 under this subsection. 

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

8 defendant in a civil action under this section prevails 

9 and the court finds that the plaintiff’s suit was friv10 olous and brought in bad faith, the court shall also 

11 render judgment for a reasonable attorney’s fee in 

12 favor of the defendant against the plaintiff. 

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

14 paragraph (6), in a civil action under this sub15 section, no damages, attorney’s fee or other mone16 tary relief may be assessed against the woman upon 

17 whom the abortion was performed or attempted. 

18 ‘‘(f) PROTECTION OF PRIVACY IN COURT PRO19 CEEDINGS.— 

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

21 Constitution or other similarly compelling reason re22 quires, in every civil or criminal action under this 

23 section, the court shall make such orders as are nec24 essary to protect the anonymity of any woman upon 

25 whom an abortion has been performed or attempted 

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1 if she does not give her written consent to such dis2 closure. Such orders may be made upon motion, but 

3 shall be made sua sponte if not otherwise sought by 

4 a party. 

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

6 COUNSEL.—The court shall issue appropriate orders 

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

8 counsel and shall direct the sealing of the record and 

9 exclusion of individuals from courtrooms or hearing 

10 rooms to the extent necessary to safeguard her iden11 tity from public disclosure. Each such order shall be 

12 accompanied by specific written findings explaining 

13 why the anonymity of the woman must be preserved 

14 from public disclosure, why the order is essential to 

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

16 that interest, and why no reasonable less restrictive 

17 alternative exists. 

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

19 of written consent of the woman upon whom an 

20 abortion has been performed or attempted, any 

21 party, other than a public official, who brings an ac22 tion under paragraphs (1), (2), or (4) of subsection 

23 (e) shall do so under a pseudonym. 

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

25 construed to conceal the identity of the plaintiff or 

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1 of witnesses from the defendant or from attorneys 

2 for the defendant. 

3 ‘‘(g) REPORTING.— 

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

5 performs or attempts an abortion within the District 

6 of Columbia shall report that abortion to the rel7 evant District of Columbia health agency (herein8 after in this section referred to as the ‘health agen9 cy’) on a schedule and in accordance with forms and 

10 regulations prescribed by the health agency. 

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

12 include the following: 

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

14 determination of probable post-fertilization age 

15 of the unborn child, whether ultrasound was 

16 employed in making the determination, and the 

17 week of probable post-fertilization age that was 

18 determined. 

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

20 the following methods or combination of meth21 ods was employed: 

22 ‘‘(i) Dilation, dismemberment, and 

23 evacuation of fetal parts also known as ‘di24 lation and evacuation’. 

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1 ‘‘(ii) Intra-amniotic instillation of sa2 line, urea, or other substance (specify sub3 stance) to kill the unborn child, followed by 

4 induction of labor. 

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

6 injection of digoxin, potassium chloride, or 

7 other substance (specify substance) in8 tended to kill the unborn child, followed by 

9 induction of labor. 

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

11 in section 1531. 

12 ‘‘(v) Manual vacuum aspiration with13 out other methods. 

14 ‘‘(vi) Electrical vacuum aspiration 

15 without other methods. 

16 ‘‘(vii) Abortion induced by use of 

17 mifepristone in combination with 

18 misoprostol. 

19 ‘‘(viii) If none of the methods de20 scribed in the other clauses of this sub21 paragraph was employed, whatever method 

22 was employed. 

23 ‘‘(C) AGE OF WOMAN.—The age or approx24 imate age of the pregnant woman. 

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1 ‘‘(D) COMPLIANCE WITH REQUIREMENTS

2 FOR EXCEPTION.—The facts relied upon and 

3 the basis for any determinations required to es4 tablish compliance with the requirements for 

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

6 ‘‘(3) EXCLUSIONS FROM REPORTS.— 

7 ‘‘(A) A report required under this sub8 section shall not contain the name or the ad9 dress of the woman whose pregnancy was ter10 minated, nor shall the report contain any other 

11 information identifying the woman. 

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

13 Medical Record Number, to enable matching 

14 the report to the woman’s medical records. 

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

16 strict confidence by the health agency, shall not 

17 be available for public inspection, and shall not 

18 be made available except— 

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

20 the District of Columbia or that Attorney’s 

21 delegate for a criminal investigation or a 

22 civil investigation of conduct that may vio23 late this section; or 

24 ‘‘(ii) pursuant to court order in an ac25 tion under subsection (e). 

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

2 of each year beginning after the date of enactment 

3 of this paragraph, the health agency shall issue a 

4 public report providing statistics for the previous 

5 calendar year compiled from all of the reports made 

6 to the health agency under this subsection for that 

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

8 The report shall also provide the statistics for all 

9 previous calendar years during which this section 

10 was in effect, adjusted to reflect any additional in11 formation from late or corrected reports. The health 

12 agency shall take care to ensure that none of the in13 formation included in the public reports could rea14 sonably lead to the identification of any pregnant 

15 woman upon whom an abortion was performed or at16 tempted. 

17 ‘‘(5) FAILURE TO SUBMIT REPORT.— 

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

19 to submit a report not later than 30 days after 

20 the date that report is due shall be subject to 

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

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

23 is overdue. 

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

25 of competent jurisdiction may, in a civil action 

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1 commenced by the health agency, direct any 

2 physician whose report under this subsection is 

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

4 than 180 days after the date the report was 

5 due, to comply with the requirements of this 

6 section under penalty of civil contempt. 

7 ‘‘(C) DISCIPLINARY ACTION.—Intentional 

8 or reckless failure by any physician to comply 

9 with any requirement of this subsection, other 

10 than late filing of a report, constitutes suffi11 cient cause for any disciplinary sanction which 

12 the Health Professional Licensing Administra13 tion of the District of Columbia determines is 

14 appropriate, including suspension or revocation 

15 of any license granted by the Administration. 

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

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

18 section, the health agency shall prescribe forms and 

19 regulations to assist in compliance with this sub20 section. 

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

22 Paragraph (1) of this subsection takes effect with 

23 respect to all abortions performed on and after the 

24 first day of the first calendar month beginning after 

25 the effective date of such forms and regulations. 

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

2 definitions apply: 

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

4 the use or prescription of any instrument, medicine, 

5 drug, or any other substance or device— 

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

7 of a woman known to be pregnant; or 

8 ‘‘(B) to intentionally prematurely termi9 nate the pregnancy of a woman known to be 

10 pregnant, with an intention other than to in11 crease the probability of a live birth or of pre12 serving the life or health of the child after live 

13 birth, or to remove a dead unborn child. 

14 ‘‘(2) ATTEMPT AN ABORTION.—The term ‘at15 tempt’, with respect to an abortion, means conduct 

16 that, under the circumstances as the actor believes 

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

18 of conduct planned to culminate in performing an 

19 abortion in the District of Columbia. 

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

21 means the fusion of human spermatozoon with a 

22 human ovum. 

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

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1 trict of Columbia or any successor agency respon2 sible for the regulation of medical practice. 

3 ‘‘(5) PERFORM.—The term ‘perform’, with re4 spect to an abortion, includes inducing an abortion 

5 through a medical or chemical intervention including 

6 writing a prescription for a drug or device intended 

7 to result in an abortion. 

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

9 a person licensed to practice medicine and surgery 

10 or osteopathic medicine and surgery, or otherwise li11 censed to legally perform an abortion. 

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

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

14 child as calculated from the fusion of a human 

15 spermatozoon with a human ovum. 

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

17 THE UNBORN CHILD.—The term ‘probable post-fer18 tilization age of the unborn child’ means what, in 

19 reasonable medical judgment, will with reasonable 

20 probability be the post-fertilization age of the un21 born child at the time the abortion is planned to be 

22 performed or induced. 

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

24 term ‘reasonable medical judgment’ means a medical 

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1 dent physician, knowledgeable about the case and 

2 the treatment possibilities with respect to the med3 ical conditions involved. 

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

5 child’ means an individual organism of the species 

6 homo sapiens, beginning at fertilization, until the 

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

8 of title 1. 

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

10 ‘unemancipated minor’ means a minor who is sub11 ject to the control, authority, and supervision of a 

12 parent or guardian, as determined under the law of 

13 the State in which the minor resides. 

14 ‘‘(12) WOMAN.—The term ‘woman’ means a fe15 male human being whether or not she has reached 

16 the age of majority.’’. 

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

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

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

20 item: 

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

21 (c) CHAPTER HEADING AMENDMENTS.— 

22 (1) CHAPTER HEADING IN CHAPTER.—The 

23 chapter heading for chapter 74 of title 18, United 

24 States Code, is amended by striking ‘‘Partial-Birth 

25 Abortions’’ and inserting ‘‘Abortions’’. 

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

2 item relating to chapter 74 in the table of chapters 

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

4 Code, is amended by striking ‘‘Partial-Birth Abor5 tions’’ and inserting ‘‘Abortions’’. 

Æ 

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