I 

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 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Late Term Abortion 

5 Ban Act’’. 

6 SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 

7 CONSTITUTIONAL AUTHORITY FOR ENACT8 MENT. 

9 Congress finds and declares the following: 


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1 (1) Pain receptors (nociceptors) are present 

2 throughout the unborn child’s entire body and 

3 nerves link these receptors to the brain’s thalamus 

4 and subcortical plate by no later than 20 weeks after 

5 fertilization. 

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

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

8 child reacts to stimuli that would be recognized as 

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

10 by recoiling. 

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

12 painful stimuli is associated with significant in13 creases in stress hormones known as the stress re14 sponse. 

15 (4) Subjection to such painful stimuli is associ16 ated with long-term harmful neurodevelopmental ef17 fects, such as altered pain sensitivity and, possibly, 

18 emotional, behavioral, and learning disabilities later 

19 in life. 

20 (5) For the purposes of surgery on unborn chil21 dren, fetal anesthesia is routinely administered and 

22 is associated with a decrease in stress hormones 

23 compared to their level when painful stimuli are ap24 plied without such anesthesia. In the United States, 

25 surgery of this type is being performed by 20 weeks 


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1 after fertilization and earlier in specialized units af2 filiated with children’s hospitals. 

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

4 that the unborn child is incapable of experiencing 

5 pain until a point later in pregnancy than 20 weeks 

6 after fertilization predominately rests on the as7 sumption that the ability to experience pain depends 

8 on the cerebral cortex and requires nerve connec9 tions between the thalamus and the cortex. However, 

10 recent medical research and analysis, especially since 

11 2007, provides strong evidence for the conclusion 

12 that a functioning cortex is not necessary to experi13 ence pain. 

14 (7) Substantial evidence indicates that children 

15 born missing the bulk of the cerebral cortex, those 

16 with hydranencephaly, nevertheless experience pain. 

17 (8) In adult humans and in animals, stimula18 tion or ablation of the cerebral cortex does not alter 

19 pain perception, while stimulation or ablation of the 

20 thalamus does. 

21 (9) Substantial evidence indicates that struc22 tures used for pain processing in early development 

23 differ from those of adults, using different neural 

24 elements available at specific times during developVerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939

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1 ment, such as the subcortical plate, to fulfill the role 

2 of pain processing. 

3 (10) The position, asserted by some commenta4 tors, that the unborn child remains in a coma-like 

5 sleep state that precludes the unborn child experi6 encing pain is inconsistent with the documented re7 action of unborn children to painful stimuli and with 

8 the experience of fetal surgeons who have found it 

9 necessary to sedate the unborn child with anesthesia 

10 to prevent the unborn child from engaging in vig11 orous movement in reaction to invasive surgery. 

12 (11) Consequently, there is substantial medical 

13 evidence that an unborn child is capable of experi14 encing pain at least by 20 weeks after fertilization, 

15 if not earlier. 

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

17 a compelling governmental interest in protecting the 

18 lives of unborn children from the stage at which sub19 stantial medical evidence indicates that they are ca20 pable of feeling pain. 

21 (13) The compelling governmental interest in 

22 protecting the lives of unborn children from the 

23 stage at which substantial medical evidence indicates 

24 that they are capable of feeling pain is intended to 

25 be separate from and independent of the compelling 


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1 governmental interest in protecting the lives of un2 born children from the stage of viability, and neither 

3 governmental interest is intended to replace the 

4 other. 

5 (14) Congress has authority to extend protec6 tion to pain-capable unborn children under the Su7 preme Court’s Commerce Clause precedents and 

8 under the Constitution’s grants of powers to Con9 gress under the Equal Protection, Due Process, and 

10 Enforcement Clauses of the Fourteenth Amendment. 

11 SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 

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

13 States Code, is amended by inserting after section 1531 

14 the following: 

15 ‘‘§ 1532. Pain-capable unborn child protection 

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

17 other provision of law, it shall be unlawful for any person 

18 to perform an abortion or attempt to do so, unless in con19 formity with the requirements set forth in subsection (b). 

20 ‘‘(b) REQUIREMENTS FOR ABORTIONS.— 

21 ‘‘(1) ASSESSMENT OF THE AGE OF THE UN22 BORN CHILD.—The physician performing or at23 tempting the abortion shall first make a determina24 tion of the probable post-fertilization age of the un25 born child or reasonably rely upon such a determinaVerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939

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1 tion made by another physician. In making such a 

2 determination, the physician shall make such inquir3 ies of the pregnant woman and perform or cause to 

4 be performed such medical examinations and tests 

5 as a reasonably prudent physician, knowledgeable 

6 about the case and the medical conditions involved, 

7 would consider necessary to make an accurate deter8 mination of post-fertilization age. 

9 ‘‘(2) PROHIBITION ON PERFORMANCE OF CER10 TAIN ABORTIONS.— 

11 ‘‘(A) GENERALLY FOR UNBORN CHILDREN

12 20 WEEKS OR OLDER.—Except as provided in 

13 subparagraph (B), the abortion shall not be 

14 performed or attempted, if the probable post15 fertilization age, as determined under para16 graph (1), of the unborn child is 20 weeks or 

17 greater. 

18 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 

19 does not apply if— 

20 ‘‘(i) in reasonable medical judgment, 

21 the abortion is necessary to prevent the 

22 loss of life or severe injury (the substantial 

23 and irreversible physical impairment of a 

24 major bodily function, not including psy25 chological or emotional conditions) of a 


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1 pregnant woman endangered by a physical 

2 disorder, physical illness, or physical in3 jury, including a life-endangering physical 

4 condition caused by or arising from the 

5 pregnancy itself, but not including psycho6 logical or emotional conditions; 

7 ‘‘(ii) the pregnancy is the result of 

8 rape against an adult woman; or 

9 ‘‘(iii) the pregnancy is a result of rape 

10 against a minor or incest against a minor. 

11 ‘‘(C) REQUIREMENT AS TO MANNER OF

12 PROCEDURE PERFORMED.—Notwithstanding 

13 the definitions of ‘abortion’ and ‘attempt an 

14 abortion’ in this section, a physician termi15 nating or attempting to terminate a pregnancy 

16 under an exception provided by subparagraph 

17 (B) may do so only in the manner which, in 

18 reasonable medical judgment, provides the best 

19 opportunity for the unborn child to survive. 

20 ‘‘(D) REQUIREMENT THAT A PHYSICIAN

21 TRAINED IN NEONATAL RESUSCITATION BE

22 PRESENT.—If, in reasonable medical judgment, 

23 the unborn child has the potential to survive 

24 outside the womb, the physician who performs 

25 or attempts an abortion under an exception 


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1 provided by subparagraph (B) shall ensure a 

2 second physician trained in neonatal resuscita3 tion is present and prepared to provide care to 

4 the child consistent with the requirements of 

5 subparagraph (E). 

6 ‘‘(E) CHILDREN BORN ALIVE AFTER AT7 TEMPTED ABORTIONS.—When a physician per8 forms or attempts an abortion in accordance 

9 with this section, and the child is born alive, the 

10 following shall apply: 

11 ‘‘(i) DEGREE OF CARE REQUIRED.— 

12 Any health care practitioner present at the 

13 time shall humanely exercise the same de14 gree of professional skill, care, and dili15 gence to preserve the life and health of the 

16 child as a reasonably diligent and conscien17 tious health care practitioner would render 

18 to a child born alive at the same gesta19 tional age in the course of a natural birth. 

20 ‘‘(ii) MANDATORY REPORTING OF VIO21 LATIONS.—A health care practitioner or 

22 employee of a hospital, a physician’s office, 

23 or an abortion clinic who has knowledge of 

24 a failure to comply with the requirements 

25 of this subparagraph must immediately reVerDate Sep 11 2014 00:12 Jan 06, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8939.IH H8939

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1 port the failure to an appropriate State or 

2 Federal law enforcement agency or both. 

3 ‘‘(F) INFORMED CONSENT.— 

4 ‘‘(i) CONSENT FORM REQUIRED.—The 

5 physician who intends to perform or at6 tempt to perform an abortion under the 

7 provisions of subparagraph (B) may not 

8 perform any part of the abortion procedure 

9 without first obtaining a signed Informed 

10 Consent Authorization form in accordance 

11 with this subparagraph. 

12 ‘‘(ii) CONTENT OF CONSENT FORM.— 

13 The Informed Consent Authorization form 

14 shall be presented in person by the physi15 cian and shall consist of— 

16 ‘‘(I) a statement by the physician 

17 indicating the probable post-fertiliza18 tion age of the unborn child; 

19 ‘‘(II) a statement that Federal 

20 law allows abortion after 20 weeks 

21 fetal age only if the mother faces se22 vere injury (the substantial and irre23 versible physical impairment of a 

24 major bodily function, not including 

25 psychological or emotional conditions) 


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1 or her life is endangered by a physical 

2 disorder, physical illness, or physical 

3 injury, when the pregnancy was the 

4 result of rape, or an act of incest 

5 against a minor; 

6 ‘‘(III) a statement that the abor7 tion must be performed by the method 

8 most likely to allow the child to be 

9 born alive unless this would cause sig10 nificant risk to the mother; 

11 ‘‘(IV) a statement that in any 

12 case in which an abortion procedure 

13 results in a child born alive, Federal 

14 law requires that child to be given 

15 every form of medical assistance that 

16 is provided to children spontaneously 

17 born prematurely, including transpor18 tation and admittance to a hospital; 

19 ‘‘(V) a statement that these re20 quirements are binding upon the phy21 sician and all other medical personnel 

22 who are subject to criminal and civil 

23 penalties and that a woman on whom 

24 an abortion has been performed may 


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1 take civil action if these requirements 

2 are not followed; and 

3 ‘‘(VI) affirmation that each sign4 er has filled out the informed consent 

5 form to the best of their knowledge 

6 and understands the information con7 tained in the form. 

8 ‘‘(iii) SIGNATORIES REQUIRED.—The 

9 Informed Consent Authorization form shall 

10 be signed in person by the woman seeking 

11 the abortion, the physician performing or 

12 attempting to perform the abortion, and a 

13 witness. 

14 ‘‘(iv) RETENTION OF CONSENT

15 FORM.—The physician performing or at16 tempting to perform an abortion must re17 tain the signed informed consent form in 

18 the patient’s medical file. 

19 ‘‘(G) REQUIREMENT FOR DATA RETEN20 TION.—Paragraph (j)(2) of section 164.530 of 

21 title 45, Code of Federal Regulations, shall 

22 apply to documentation required to be placed in 

23 a patient’s medical file pursuant to subpara24 graph (F) of subsection (b)(2) and a consent 

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1 ical file pursuant to subparagraph (G) of such 

2 subsection in the same manner and to the same 

3 extent as such paragraph applies to documenta4 tion required by paragraph (j)(1) of such sec5 tion. 

6 ‘‘(H) ADDITIONAL EXCEPTIONS AND RE7 QUIREMENTS.— 

8 ‘‘(i) IN CASES OF RISK OF DEATH OR

9 SEVERE INJURY TO THE MOTHER.—Sub10 paragraphs (C), (D), and (G) shall not 

11 apply if, in reasonable medical judgment, 

12 compliance with such paragraphs would 

13 pose a greater risk of— 

14 ‘‘(I) the death of the pregnant 

15 woman; or 

16 ‘‘(II) the substantial and irre17 versible physical impairment of a 

18 major bodily function, not including 

19 psychological or emotional conditions, 

20 of the pregnant woman. 

21 ‘‘(ii) COMPLIANCE WITH CERTAIN

22 STATE LAWS.— 

23 ‘‘(I) STATE LAWS REGARDING

24 REPORTING OF RAPE AND INCEST.— 

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1 tempts to perform an abortion under 

2 an exception provided by subpara3 graph (B) shall comply with such ap4 plicable State laws that are in effect 

5 as the State’s Attorney General may 

6 designate, regarding reporting re7 quirements in cases of rape or incest. 

8 ‘‘(II) STATE LAWS REGARDING

9 PARENTAL INVOLVEMENT.—The phy10 sician who intends to perform an 

11 abortion on a minor under an excep12 tion provided by subparagraph (B) 

13 shall comply with any applicable State 

14 laws requiring parental involvement in 

15 a minor’s decision to have an abor16 tion. 

17 ‘‘(c) CRIMINAL PENALTY.—Whoever violates sub18 section (a) shall be fined under this title or imprisoned 

19 for not more than 5 years, or both. 

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

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

22 attempted may not be prosecuted under, or for a con23 spiracy to violate, subsection (a), or for an offense under 

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

25 ‘‘(e) CIVIL REMEDIES.— 


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1 ‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN

2 ABORTION IS PERFORMED.—A woman upon whom 

3 an abortion has been performed or attempted in vio4 lation of any provision of this section may, in a civil 

5 action against any person who committed the viola6 tion, obtain appropriate relief. 

7 ‘‘(2) CIVIL ACTION BY A PARENT OF A MINOR

8 ON WHOM AN ABORTION IS PERFORMED.—A parent 

9 of a minor upon whom an abortion has been per10 formed or attempted under an exception provided for 

11 in subsection (b)(2)(B), and that was performed in 

12 violation of any provision of this section may, in a 

13 civil action against any person who committed the 

14 violation obtain appropriate relief, unless the preg15 nancy resulted from the plaintiff’s criminal conduct. 

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

17 in a civil action under this subsection includes— 

18 ‘‘(A) objectively verifiable money damages 

19 for all injuries, psychological and physical, occa20 sioned by the violation; 

21 ‘‘(B) statutory damages equal to three 

22 times the cost of the abortion; and 

23 ‘‘(C) punitive damages. 

24 ‘‘(4) ATTORNEYS FEES FOR PLAINTIFF.—The 

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


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

2 under this subsection. 

3 ‘‘(5) ATTORNEYS FEES FOR DEFENDANT.—If a 

4 defendant in a civil action under this subsection pre5 vails and the court finds that the plaintiff’s suit was 

6 frivolous, the court shall award a reasonable attor7 ney’s fee in favor of the defendant against the plain8 tiff. 

9 ‘‘(6) AWARDS AGAINST WOMAN.—Except under 

10 paragraph (5), in a civil action under this sub11 section, no damages, attorney’s fee or other mone12 tary relief may be assessed against the woman upon 

13 whom the abortion was performed or attempted. 

14 ‘‘(f) DEFINITIONS.—In this section the following defi15 nitions 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.—The term ‘attempt’, with re6 spect to an abortion, means conduct that, under the 

7 circumstances as the actor believes them to be, con8 stitutes a substantial step in a course of conduct 

9 planned to culminate in performing an abortion. 

10 ‘‘(3) COUNSELING.—The term ‘counseling’ 

11 means counseling provided by a counselor licensed 

12 by the State, or a victims rights advocate provided 

13 by a law enforcement agency. 

14 ‘‘(4) FACILITY.—The term ‘facility’ means any 

15 medical or counseling group, center or clinic and in16 cludes the entire legal entity, including any entity 

17 that controls, is controlled by, or is under common 

18 control with such facility. 

19 ‘‘(5) FERTILIZATION.—The term ‘fertilization’ 

20 means the fusion of human spermatozoon with a 

21 human ovum. 

22 ‘‘(6) MEDICAL TREATMENT.—The term ‘med23 ical treatment’ means treatment provided at a hos24 pital licensed by the State or operated under author25 ity of a Federal agency, at a medical clinic licensed 


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1 by the State or operated under authority of a Fed2 eral agency, or from a personal physician licensed by 

3 the State. 

4 ‘‘(7) MINOR.—The term ‘minor’ means an indi5 vidual who has not attained the age of 18 years. 

6 ‘‘(8) PERFORM.—The term ‘perform’, with re7 spect to an abortion, includes inducing an abortion 

8 through a medical or chemical intervention including 

9 writing a prescription for a drug or device intended 

10 to result in an abortion. 

11 ‘‘(9) PHYSICIAN.—The term ‘physician’ means 

12 a person licensed to practice medicine and surgery 

13 or osteopathic medicine and surgery, or otherwise le14 gally authorized to perform an abortion. 

15 ‘‘(10) POST-FERTILIZATION AGE.—The term 

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

17 child as calculated from the fusion of a human 

18 spermatozoon with a human ovum. 

19 ‘‘(11) PROBABLE POST-FERTILIZATION AGE OF

20 THE UNBORN CHILD.—The term ‘probable post-fer21 tilization age of the unborn child’ means what, in 

22 reasonable medical judgment, will with reasonable 

23 probability be the post-fertilization age of the un24 born child at the time the abortion is planned to be 

25 performed or induced. 


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1 ‘‘(12) REASONABLE MEDICAL JUDGMENT.—The 

2 term ‘reasonable medical judgment’ means a medical 

3 judgment that would be made by a reasonably pru4 dent physician, knowledgeable about the case and 

5 the treatment possibilities with respect to the med6 ical conditions involved. 

7 ‘‘(13) UNBORN CHILD.—The term ‘unborn 

8 child’ means an individual organism of the species 

9 homo sapiens, beginning at fertilization, until the 

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

11 of title 1. 

12 ‘‘(14) WOMAN.—The term ‘woman’ means a fe13 male human being whether or not she has reached 

14 the age of majority.’’. 

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

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

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

18 item: 

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

19 (c) CHAPTER HEADING AMENDMENTS.— 

20 (1) CHAPTER HEADING IN CHAPTER.—The 

21 chapter heading for chapter 74 of title 18, United 

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

23 Abortions’’ and inserting ‘‘Abortions’’. 

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 Abor3 tions’’ and inserting ‘‘Abortions’’. 

Æ 


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