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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8939 Introduced in House (IH)]

<DOC>

116th CONGRESS
  2d Session
                                H. R. 8939

 To amend title 18, United States Code, to protect pain-capable unborn 
                   children, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           December 10, 2020

 Ms. Gabbard introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
 To amend title 18, United States Code, to protect pain-capable unborn 
                   children, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Late Term Abortion Ban Act''.

SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF CONSTITUTIONAL 
              AUTHORITY FOR ENACTMENT.

    Congress finds and declares the following:
            (1) Pain receptors (nociceptors) are present throughout the 
        unborn child's entire body and nerves link these receptors to 
        the brain's thalamus and subcortical plate by no later than 20 
        weeks after fertilization.
            (2) By 8 weeks after fertilization, the unborn child reacts 
        to touch. After 20 weeks, the unborn child reacts to stimuli 
        that would be recognized as painful if applied to an adult 
        human, for example, by recoiling.
            (3) In the unborn child, application of such painful 
        stimuli is associated with significant increases in stress 
        hormones known as the stress response.
            (4) Subjection to such painful stimuli is associated with 
        long-term harmful neurodevelopmental effects, such as altered 
        pain sensitivity and, possibly, emotional, behavioral, and 
        learning disabilities later in life.
            (5) For the purposes of surgery on unborn children, fetal 
        anesthesia is routinely administered and is associated with a 
        decrease in stress hormones compared to their level when 
        painful stimuli are applied without such anesthesia. In the 
        United States, surgery of this type is being performed by 20 
        weeks after fertilization and earlier in specialized units 
        affiliated with children's hospitals.
            (6) The position, asserted by some physicians, that the 
        unborn child is incapable of experiencing pain until a point 
        later in pregnancy than 20 weeks after fertilization 
        predominately rests on the assumption that the ability to 
        experience pain depends on the cerebral cortex and requires 
        nerve connections between the thalamus and the cortex. However, 
        recent medical research and analysis, especially since 2007, 
        provides strong evidence for the conclusion that a functioning 
        cortex is not necessary to experience pain.
            (7) Substantial evidence indicates that children born 
        missing the bulk of the cerebral cortex, those with 
        hydranencephaly, nevertheless experience pain.
            (8) In adult humans and in animals, stimulation or ablation 
        of the cerebral cortex does not alter pain perception, while 
        stimulation or ablation of the thalamus does.
            (9) Substantial evidence indicates that structures used for 
        pain processing in early development differ from those of 
        adults, using different neural elements available at specific 
        times during development, such as the subcortical plate, to 
        fulfill the role of pain processing.
            (10) The position, asserted by some commentators, that the 
        unborn child remains in a coma-like sleep state that precludes 
        the unborn child experiencing pain is inconsistent with the 
        documented reaction of unborn children to painful stimuli and 
        with the experience of fetal surgeons who have found it 
        necessary to sedate the unborn child with anesthesia to prevent 
        the unborn child from engaging in vigorous movement in reaction 
        to invasive surgery.
            (11) Consequently, there is substantial medical evidence 
        that an unborn child is capable of experiencing pain at least 
        by 20 weeks after fertilization, if not earlier.
            (12) It is the purpose of the Congress to assert a 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage at which substantial medical 
        evidence indicates that they are capable of feeling pain.
            (13) The compelling governmental interest in protecting the 
        lives of unborn children from the stage at which substantial 
        medical evidence indicates that they are capable of feeling 
        pain is intended to be separate from and independent of the 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage of viability, and neither 
        governmental interest is intended to replace the other.
            (14) Congress has authority to extend protection to pain-
        capable unborn children under the Supreme Court's Commerce 
        Clause precedents and under the Constitution's grants of powers 
        to Congress under the Equal Protection, Due Process, and 
        Enforcement Clauses of the Fourteenth Amendment.

SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.

    (a) In General.--Chapter 74 of title 18, United States Code, is 
amended by inserting after section 1531 the following:
``Sec. 1532. Pain-capable unborn child protection
    ``(a) Unlawful Conduct.--Notwithstanding any other provision of 
law, it shall be unlawful for any person to perform an abortion or 
attempt to do so, unless in conformity with the requirements set forth 
in subsection (b).
    ``(b) Requirements for Abortions.--
            ``(1) Assessment of the age of the unborn child.--The 
        physician performing or attempting the abortion shall first 
        make a determination of the probable post-fertilization age of 
        the unborn child or reasonably rely upon such a determination 
        made by another physician. In making such a determination, the 
        physician shall make such inquiries of the pregnant woman and 
        perform or cause to be performed such medical examinations and 
        tests as a reasonably prudent physician, knowledgeable about 
        the case and the medical conditions involved, would consider 
        necessary to make an accurate determination of post-
        fertilization age.
            ``(2) Prohibition on performance of certain abortions.--
                    ``(A) Generally for unborn children 20 weeks or 
                older.--Except as provided in subparagraph (B), the 
                abortion shall not be performed or attempted, if the 
                probable post-fertilization age, as determined under 
                paragraph (1), of the unborn child is 20 weeks or 
                greater.
                    ``(B) Exceptions.--Subparagraph (A) does not apply 
                if--
                            ``(i) in reasonable medical judgment, the 
                        abortion is necessary to prevent the loss of 
                        life or severe injury (the substantial and 
                        irreversible physical impairment of a major 
                        bodily function, not including psychological or 
                        emotional conditions) of a pregnant woman 
                        endangered by a physical disorder, physical 
                        illness, or physical injury, including a life-
                        endangering physical condition caused by or 
                        arising from the pregnancy itself, but not 
                        including psychological or emotional 
                        conditions;
                            ``(ii) the pregnancy is the result of rape 
                        against an adult woman; or
                            ``(iii) the pregnancy is a result of rape 
                        against a minor or incest against a minor.
                    ``(C) Requirement as to manner of procedure 
                performed.--Notwithstanding the definitions of 
                `abortion' and `attempt an abortion' in this section, a 
                physician terminating or attempting to terminate a 
                pregnancy under an exception provided by subparagraph 
                (B) may do so only in the manner which, in reasonable 
                medical judgment, provides the best opportunity for the 
                unborn child to survive.
                    ``(D) Requirement that a physician trained in 
                neonatal resuscitation be present.--If, in reasonable 
                medical judgment, the unborn child has the potential to 
                survive outside the womb, the physician who performs or 
                attempts an abortion under an exception provided by 
                subparagraph (B) shall ensure a second physician 
                trained in neonatal resuscitation is present and 
                prepared to provide care to the child consistent with 
                the requirements of subparagraph (E).
                    ``(E) Children born alive after attempted 
                abortions.--When a physician performs or attempts an 
                abortion in accordance with this section, and the child 
                is born alive, the following shall apply:
                            ``(i) Degree of care required.--Any health 
                        care practitioner present at the time shall 
                        humanely exercise the same degree of 
                        professional skill, care, and diligence to 
                        preserve the life and health of the child as a 
                        reasonably diligent and conscientious health 
                        care practitioner would render to a child born 
                        alive at the same gestational age in the course 
                        of a natural birth.
                            ``(ii) Mandatory reporting of violations.--
                        A health care practitioner or employee of a 
                        hospital, a physician's office, or an abortion 
                        clinic who has knowledge of a failure to comply 
                        with the requirements of this subparagraph must 
                        immediately report the failure to an 
                        appropriate State or Federal law enforcement 
                        agency or both.
                    ``(F) Informed consent.--
                            ``(i) Consent form required.--The physician 
                        who intends to perform or attempt to perform an 
                        abortion under the provisions of subparagraph 
                        (B) may not perform any part of the abortion 
                        procedure without first obtaining a signed 
                        Informed Consent Authorization form in 
                        accordance with this subparagraph.
                            ``(ii) Content of consent form.--The 
                        Informed Consent Authorization form shall be 
                        presented in person by the physician and shall 
                        consist of--
                                    ``(I) a statement by the physician 
                                indicating the probable post-
                                fertilization age of the unborn child;
                                    ``(II) a statement that Federal law 
                                allows abortion after 20 weeks fetal 
                                age only if the mother faces severe 
                                injury (the substantial and 
                                irreversible physical impairment of a 
                                major bodily function, not including 
                                psychological or emotional conditions) 
                                or her life is endangered by a physical 
                                disorder, physical illness, or physical 
                                injury, when the pregnancy was the 
                                result of rape, or an act of incest 
                                against a minor;
                                    ``(III) a statement that the 
                                abortion must be performed by the 
                                method most likely to allow the child 
                                to be born alive unless this would 
                                cause significant risk to the mother;
                                    ``(IV) a statement that in any case 
                                in which an abortion procedure results 
                                in a child born alive, Federal law 
                                requires that child to be given every 
                                form of medical assistance that is 
                                provided to children spontaneously born 
                                prematurely, including transportation 
                                and admittance to a hospital;
                                    ``(V) a statement that these 
                                requirements are binding upon the 
                                physician and all other medical 
                                personnel who are subject to criminal 
                                and civil penalties and that a woman on 
                                whom an abortion has been performed may 
                                take civil action if these requirements 
                                are not followed; and
                                    ``(VI) affirmation that each signer 
                                has filled out the informed consent 
                                form to the best of their knowledge and 
                                understands the information contained 
                                in the form.
                            ``(iii) Signatories required.--The Informed 
                        Consent Authorization form shall be signed in 
                        person by the woman seeking the abortion, the 
                        physician performing or attempting to perform 
                        the abortion, and a witness.
                            ``(iv) Retention of consent form.--The 
                        physician performing or attempting to perform 
                        an abortion must retain the signed informed 
                        consent form in the patient's medical file.
                    ``(G) Requirement for data retention.--Paragraph 
                (j)(2) of section 164.530 of title 45, Code of Federal 
                Regulations, shall apply to documentation required to 
                be placed in a patient's medical file pursuant to 
                subparagraph (F) of subsection (b)(2) and a consent 
                form required to be retained in a patient's medical 
                file pursuant to subparagraph (G) of such subsection in 
                the same manner and to the same extent as such 
                paragraph applies to documentation required by 
                paragraph (j)(1) of such section.
                    ``(H) Additional exceptions and requirements.--
                            ``(i) In cases of risk of death or severe 
                        injury to the mother.--Subparagraphs (C), (D), 
                        and (G) shall not apply if, in reasonable 
                        medical judgment, compliance with such 
                        paragraphs would pose a greater risk of--
                                    ``(I) the death of the pregnant 
                                woman; or
                                    ``(II) the substantial and 
                                irreversible physical impairment of a 
                                major bodily function, not including 
                                psychological or emotional conditions, 
                                of the pregnant woman.
                            ``(ii) Compliance with certain state 
                        laws.--
                                    ``(I) State laws regarding 
                                reporting of rape and incest.--The 
                                physician who performs or attempts to 
                                perform an abortion under an exception 
                                provided by subparagraph (B) shall 
                                comply with such applicable State laws 
                                that are in effect as the State's 
                                Attorney General may designate, 
                                regarding reporting requirements in 
                                cases of rape or incest.
                                    ``(II) State laws regarding 
                                parental involvement.--The physician 
                                who intends to perform an abortion on a 
                                minor under an exception provided by 
                                subparagraph (B) shall comply with any 
                                applicable State laws requiring 
                                parental involvement in a minor's 
                                decision to have an abortion.
    ``(c) Criminal Penalty.--Whoever violates subsection (a) shall be 
fined under this title or imprisoned for not more than 5 years, or 
both.
    ``(d) Bar to Prosecution.--A woman upon whom an abortion in 
violation of subsection (a) is performed or attempted may not be 
prosecuted under, or for a conspiracy to violate, subsection (a), or 
for an offense under section 2, 3, or 4 of this title based on such a 
violation.
    ``(e) Civil Remedies.--
            ``(1) Civil action by a woman on whom an abortion is 
        performed.--A woman upon whom an abortion has been performed or 
        attempted in violation of any provision of this section may, in 
        a civil action against any person who committed the violation, 
        obtain appropriate relief.
            ``(2) Civil action by a parent of a minor on whom an 
        abortion is performed.--A parent of a minor upon whom an 
        abortion has been performed or attempted under an exception 
        provided for in subsection (b)(2)(B), and that was performed in 
        violation of any provision of this section may, in a civil 
        action against any person who committed the violation obtain 
        appropriate relief, unless the pregnancy resulted from the 
        plaintiff's criminal conduct.
            ``(3) Appropriate relief.--Appropriate relief in a civil 
        action under this subsection includes--
                    ``(A) objectively verifiable money damages for all 
                injuries, psychological and physical, occasioned by the 
                violation;
                    ``(B) statutory damages equal to three times the 
                cost of the abortion; and
                    ``(C) punitive damages.
            ``(4) Attorneys fees for plaintiff.--The court shall award 
        a reasonable attorney's fee as part of the costs to a 
        prevailing plaintiff in a civil action under this subsection.
            ``(5) Attorneys fees for defendant.--If a defendant in a 
        civil action under this subsection prevails and the court finds 
        that the plaintiff's suit was frivolous, the court shall award 
        a reasonable attorney's fee in favor of the defendant against 
        the plaintiff.
            ``(6) Awards against woman.--Except under paragraph (5), in 
        a civil action under this subsection, no damages, attorney's 
        fee or other monetary relief may be assessed against the woman 
        upon whom the abortion was performed or attempted.
    ``(f) Definitions.--In this section the following definitions 
apply:
            ``(1) Abortion.--The term `abortion' means the use or 
        prescription of any instrument, medicine, drug, or any other 
        substance or device--
                    ``(A) to intentionally kill the unborn child of a 
                woman known to be pregnant; or
                    ``(B) to intentionally terminate the pregnancy of a 
                woman known to be pregnant, with an intention other 
                than--
                            ``(i) after viability to produce a live 
                        birth and preserve the life and health of the 
                        child born alive; or
                            ``(ii) to remove a dead unborn child.
            ``(2) Attempt.--The term `attempt', with respect to an 
        abortion, means conduct that, under the circumstances as the 
        actor believes them to be, constitutes a substantial step in a 
        course of conduct planned to culminate in performing an 
        abortion.
            ``(3) Counseling.--The term `counseling' means counseling 
        provided by a counselor licensed by the State, or a victims 
        rights advocate provided by a law enforcement agency.
            ``(4) Facility.--The term `facility' means any medical or 
        counseling group, center or clinic and includes the entire 
        legal entity, including any entity that controls, is controlled 
        by, or is under common control with such facility.
            ``(5) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
            ``(6) Medical treatment.--The term `medical treatment' 
        means treatment provided at a hospital licensed by the State or 
        operated under authority of a Federal agency, at a medical 
        clinic licensed by the State or operated under authority of a 
        Federal agency, or from a personal physician licensed by the 
        State.
            ``(7) Minor.--The term `minor' means an individual who has 
        not attained the age of 18 years.
            ``(8) Perform.--The term `perform', with respect to an 
        abortion, includes inducing an abortion through a medical or 
        chemical intervention including writing a prescription for a 
        drug or device intended to result in an abortion.
            ``(9) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise legally authorized to 
        perform an abortion.
            ``(10) Post-fertilization age.--The term `post-
        fertilization age' means the age of the unborn child as 
        calculated from the fusion of a human spermatozoon with a human 
        ovum.
            ``(11) Probable post-fertilization age of the unborn 
        child.--The term `probable post-fertilization age of the unborn 
        child' means what, in reasonable medical judgment, will with 
        reasonable probability be the post-fertilization age of the 
        unborn child at the time the abortion is planned to be 
        performed or induced.
            ``(12) Reasonable medical judgment.--The term `reasonable 
        medical judgment' means a medical judgment that would be made 
        by a reasonably prudent physician, knowledgeable about the case 
        and the treatment possibilities with respect to the medical 
        conditions involved.
            ``(13) Unborn child.--The term `unborn child' means an 
        individual organism of the species homo sapiens, beginning at 
        fertilization, until the point of being born alive as defined 
        in section 8(b) of title 1.
            ``(14) Woman.--The term `woman' means a female human being 
        whether or not she has reached the age of majority.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 74 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1532. Pain-capable unborn child protection.''.
    (c) Chapter Heading Amendments.--
            (1) Chapter heading in chapter.--The chapter heading for 
        chapter 74 of title 18, United States Code, is amended by 
        striking ``Partial-Birth Abortions'' and inserting 
        ``Abortions''.
            (2) Table of chapters for part i.--The item relating to 
        chapter 74 in the table of chapters at the beginning of part I 
        of title 18, United States Code, is amended by striking 
        ``Partial-Birth Abortions'' and inserting ``Abortions''.
                                 <all>
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