II 

112TH CONGRESS 

1ST SESSION S. 314 

To ensure that women seeking an abortion are fully informed regarding 

the pain experienced by their unborn child. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 10, 2011 

Mr. JOHANNS (for himself, Mr. BOOZMAN, Mr. BURR, Mr. COCHRAN, Mr. 

CRAPO, Mr. ENSIGN, Mr. ENZI, Mr. GRAHAM, Mr. GRASSLEY, Mr. 

HATCH, Mr. INHOFE, Mr. ISAKSON, Mr. KYL, Mr. MORAN, Mr. RISCH, 

Mr. ROBERTS, Mr. THUNE, Mr. VITTER, and Mr. WICKER) introduced 

the following bill; which was read twice and referred to the Committee 

on Health, Education, Labor, and Pensions 

A BILL 

To ensure that women seeking an abortion are fully informed 

regarding the pain experienced by their unborn child. 

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 ‘‘Unborn Child Pain 

5 Awareness Act of 2011’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


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1 (1) At least by 20 weeks after fertilization, an 

2 unborn child has the physical structures necessary to 

3 experience pain. 

4 (2) There is substantial evidence that by 20 

5 weeks after fertilization, unborn children draw away 

6 from certain stimuli in a manner which in an infant 

7 or an adult would be interpreted as a response to 

8 pain. 

9 (3) Anesthesia is routinely administered to un10 born children who have developed 20 weeks or more 

11 after fertilization who undergo prenatal surgery. 

12 (4) There is substantial evidence that the abor13 tion methods most commonly used 20 weeks or more 

14 after fertilization cause substantial pain to an un15 born child, whether by dismemberment, poisoning, 

16 penetrating or crushing the skull, or other methods. 

17 Examples of abortion methods used 20 weeks or 

18 more after fertilization include, but are not limited 

19 to the following: 

20 (A) The dilation and evacuation (D and E) 

21 method of abortion is commonly performed in 

22 the second trimester of pregnancy. In a dilation 

23 and evacuation abortion, the unborn child’s 

24 body parts are grasped with a long-toothed 

25 clamp. The fetal body parts are then torn from 


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1 the body and pulled out of the vaginal canal. 

2 The remaining body parts are grasped and 

3 pulled out until only the head remains. The 

4 head is then grasped and crushed in order to 

5 remove it from the vaginal canal. 

6 (B) Partial-birth abortion is an abortion in 

7 which the abortion practitioner delivers an un8 born child’s body until only the head remains 

9 inside the womb, punctures the back of the 

10 child’s skull with a sharp instrument, and sucks 

11 the child’s brains out before completing the de12 livery of the dead infant, and as further defined 

13 in section 1531 of title 18, United States Code. 

14 (5) Expert testimony confirms that by 20 weeks 

15 after fertilization an unborn child may experience 

16 substantial pain even if the woman herself has re17 ceived local analgesic or general anesthesia. 

18 (6) Medical science is capable of reducing such 

19 pain through the administration of anesthesia or 

20 other pain-reducing drugs directly to the unborn 

21 child. 

22 (7) There is a valid Federal Government inter23 est in preventing or reducing the infliction of pain 

24 on sentient creatures. Examples of this are laws gov25 erning the use of laboratory animals and requiring 


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1 pain-free methods of slaughtering livestock, which 

2 include, but are not limited to the following: 

3 (A) Section 2 of the Act commonly known 

4 as the Humane Slaughter Act of 1958 (Public 

5 Law 85–765; 7 U.S.C. 1902) states, ‘‘No meth6 od of slaughter or handling in connection with 

7 slaughtering shall be deemed to comply with the 

8 public policy of the United States unless it is 

9 humane. Either of the following two methods of 

10 slaughtering and handling are hereby found to 

11 be humane— 

12 ‘‘(i) in the case of cattle, calves, 

13 horses, mules, sheep, swine, and other live14 stock, all animals are rendered insensible 

15 to pain by a single blow or gunshot or an 

16 electrical, chemical or other means that is 

17 rapid and effective, before being shackled, 

18 hoisted, thrown, cast, or cut; or 

19 ‘‘(ii) by slaughtering in accordance 

20 with the ritual requirements of the Jewish 

21 faith or any other religious faith that pre22 scribes a method of slaughter whereby the 

23 animal suffers loss of consciousness by 

24 anemia of the brain caused by the simulta25 neous and instantaneous severance of the 


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1 carotid arteries with a sharp instrument 

2 and handling in connection with such 

3 slaughtering.’’. 

4 (B) Section 13(a)(3) of the Animal Wel5 fare Act (7 U.S.C. 2143(a)(3)) sets the stand6 ards and certification process for the humane 

7 handling, care, treatment, and transportation of 

8 animals. This includes having standards with 

9 respect to animals in research facilities that in10 clude requirements— 

11 (i) for animal care, treatment, and 

12 practices in experimental procedures to en13 sure that animal pain and distress are 

14 minimized, including adequate veterinary 

15 care with the appropriate use of anesthetic, 

16 analgesic, tranquilizing drugs, or eutha17 nasia; 

18 (ii) that the principal investigator con19 siders alternatives to any procedure likely 

20 to produce pain to or distress in an experi21 mental animal; and 

22 (iii) in any practice which could cause 

23 pain to animals— 


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1 (I) that a doctor of veterinary 

2 medicine is consulted in the planning 

3 of such procedures; 

4 (II) for the use of tranquilizers, 

5 analgesics, and anesthetics; 

6 (III) for pre-surgical and post7 surgical care by laboratory workers, in 

8 accordance with established veterinary 

9 medical and nursing procedures; 

10 (IV) against the use of paralytics 

11 without anesthesia; and 

12 (V) that the withholding of tran13 quilizers, anesthesia, analgesia, or eu14 thanasia when scientifically necessary 

15 shall continue for only the necessary 

16 period of time. 

17 (C) Section 495 of the Public Health Serv18 ice Act (42 U.S.C. 289d) directs the Secretary 

19 of Health and Human Services, acting through 

20 the Director of the National Institutes of 

21 Health, to establish guidelines for research fa22 cilities as to the proper care and treatment of 

23 animals, including the appropriate use of tran24 quilizers, analgesics, and other drugs, except 

25 that such guidelines may not prescribe methods 


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1 of research. Entities that conduct biomedical 

2 and behavioral research with National Insti3 tutes of Health funds must establish animal 

4 care committees which must conduct reviews at 

5 least semiannually and report to the Director of 

6 such Institutes at least annually. If the Director 

7 determines that an entity has not been fol8 lowing the guidelines, the Director must give 

9 the entity an opportunity to take corrective ac10 tion, and, if the entity does not, the Director 

11 must suspend or revoke the grant or contract 

12 involved. 

13 (8) There is a valid Federal Government inter14 est in preventing harm to developing human life at 

15 all stages. Examples of this include regulations pro16 tecting fetal human subjects from risks of ‘‘harm or 

17 discomfort’’ in federally funded biomedical research, 

18 45 C.F.R. 102(i) and 45 C.F.R. 46.201 et seq. 

19 SEC. 3. AMENDMENT TO THE PUBLIC HEALTH SERVICE 

20 ACT. 

21 The Public Health Service Act (42 U.S.C. 201 et 

22 seq.) is amended by adding at the end the following: 


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1 ‘‘TITLE XXXIV—UNBORN CHILD 

2 PAIN AWARENESS 

3 ‘‘SEC. 3401. DEFINITIONS. 

4 ‘‘In this title: 

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

6 the intentional use or prescription of any instru7 ment, medicine, drug, or any other substance or de8 vice or method to terminate the life of an unborn 

9 child, or to terminate the pregnancy of a woman 

10 known to be pregnant with an intention other 

11 than— 

12 ‘‘(A) to produce a live birth and preserve 

13 the life and health of the child after live birth; 

14 or 

15 ‘‘(B) to remove an ectopic pregnancy, or to 

16 remove a dead unborn child who died as the re17 sult of a spontaneous abortion, accidental trau18 ma or a criminal assault on the pregnant fe19 male or her unborn child. 

20 ‘‘(2) ABORTION PROVIDER.—The term ‘abortion 

21 provider’ means any person legally qualified to per22 form an abortion under applicable Federal and State 

23 laws. 

24 ‘‘(3) PAIN-CAPABLE UNBORN CHILD.— 


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1 ‘‘(A) IN GENERAL.—The term ‘pain-capa2 ble unborn child’ means an unborn child who 

3 has reached a probable stage of development of 

4 20 weeks or more after fertilization. 

5 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

6 in subparagraph (A) shall be construed as a de7 termination or finding by Congress that pain 

8 may not in fact be experienced by an unborn 

9 child at stages of development prior to 20 weeks 

10 or more after fertilization. 

11 ‘‘(4) PROBABLE AGE OF DEVELOPMENT.—The 

12 term ‘probable age of development’ means the dura13 tion of development after fertilization of the unborn 

14 child at the time an abortion is performed, as deter15 mined in the good faith judgment of the abortion 

16 provider using generally accepted medical criteria 

17 and information obtained by interviewing the preg18 nant woman. 

19 ‘‘(5) UNBORN CHILD.—The term ‘unborn child’ 

20 means a member of the species homo sapiens, at any 

21 stage of development, who is carried in the womb. 

22 ‘‘(6) WOMAN.—The term ‘woman’ means a fe23 male human being whether or not she has reached 

24 the age of majority. 


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1 ‘‘(7) UNEMANCIPATED MINOR.—The term 

2 ‘unemancipated minor’ means an individual who is 

3 not older than 18 years and who is not emancipated 

4 under State law. 

5 ‘‘SEC. 3402. REQUIREMENT OF INFORMED CONSENT. 

6 ‘‘(a) REQUIREMENT OF COMPLIANCE BY PRO7 VIDERS.—Any abortion provider in or affecting interstate 

8 or foreign commerce, who knowingly performs any abor9 tion of a pain-capable unborn child, shall comply with the 

10 requirements of this title. 

11 ‘‘(b) PROVISION OF CONSENT.— 

12 ‘‘(1) IN GENERAL.—Before any part of an abor13 tion involving a pain-capable unborn child begins, 

14 the abortion provider or his or her agent shall pro15 vide the pregnant woman involved, by telephone or 

16 in person, with the information described in para17 graph (2). It may not be provided by a tape record18 ing, but must be provided in a fashion that permits 

19 the woman to ask questions of and receive answers 

20 from the abortion provider or his agent. (In the case 

21 of the Unborn Child Pain Awareness Brochure, it 

22 may be provided pursuant to subsection (c)(2) or 

23 (c)(3)). 

24 ‘‘(2) REQUIRED INFORMATION.— 


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1 ‘‘(A) IN GENERAL.—An abortion provider 

2 or the provider’s agent to whom paragraph (1) 

3 applies shall provide the following information 

4 to the pregnant woman (or in the case of a deaf 

5 or non-English speaking woman, provide the 

6 statement in a manner that she can easily un7 derstand): 

8 ‘‘(i) AGE OF UNBORN BABY.—The 

9 probable age of development of the unborn 

10 baby based on the number of weeks since 

11 fertilization. 

12 ‘‘(ii) UNBORN CHILD PAIN AWARE13 NESS BROCHURE.—An abortion provider to 

14 whom paragraph (1) applies must provide 

15 the pregnant woman with the Unborn 

16 Child Pain Awareness Brochure (referred 

17 to in this section as the ‘Brochure’) to be 

18 developed by the Department of Health 

19 and Human Services under subsection (c) 

20 or with the information described in sub21 section (c)(2) relating to accessing such 

22 Brochure. 

23 ‘‘(iii) USE OF PAIN-PREVENTING

24 DRUGS.—Drugs administered to the moth25 er may not prevent the unborn child from 


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1 feeling pain, but in some cases, anesthesia 

2 or other pain-reducing drug or drugs can 

3 be administered directly to the unborn 

4 child. 

5 ‘‘(iv) DESCRIPTION OF RISKS.—After 

6 providing the information required under 

7 clauses (i), (ii), and (iii) the abortion pro8 vider shall provide the woman involved 

9 with his or her best medical judgment on 

10 the risks, if any, of administering such an11 esthesia or analgesic, and the costs associ12 ated therewith. 

13 ‘‘(v) ADMINISTRATION OF ANES14 THESIA.—If the abortion provider is not 

15 qualified or willing to administer the anes16 thesia or other pain-reducing drug to an 

17 unborn child in response to a request from 

18 a pregnant women, the provider shall— 

19 ‘‘(I) arrange for a qualified spe20 cialist to administer such anesthesia 

21 or drug; or 

22 ‘‘(II) advise the pregnant 

23 woman— 

24 ‘‘(aa) where she may obtain 

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1 ducing drugs for the unborn child 

2 in the course of an abortion; or 

3 ‘‘(bb) that the abortion pro4 vider is unable to perform the 

5 abortion if the woman requires 

6 that she receive anesthesia or 

7 other pain-reducing drug for her 

8 unborn child. 

9 ‘‘(vi) UNBORN CHILD PAIN AWARE10 NESS DECISION FORM.—An abortion pro11 vider to which paragraph (1) applies shall 

12 provide the pregnant woman with the Un13 born Child Pain Awareness Decision Form 

14 (provided for under subsection (d)) and ob15 tain the appropriate signature of the 

16 woman on such form. 

17 ‘‘(vii) RULE OF CONSTRUCTION.— 

18 Nothing in this section may be construed 

19 to impede an abortion provider or the 

20 abortion provider’s agent from offering 

21 their own evaluation on the capacity of the 

22 unborn child to experience pain, the advis23 ability of administering pain-reducing 

24 drugs to the unborn child, or any other 

25 matter, as long as such provider or agent 


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1 provides the required information, obtains 

2 the woman’s signature on the decision 

3 form, and otherwise complies with the af4 firmative requirements of the law. 

5 ‘‘(B) UNBORN CHILD PAIN AWARENESS

6 BROCHURE.—An abortion provider to whom 

7 paragraph (1) applies shall provide the preg8 nant woman with the Unborn Child Pain 

9 Awareness Brochure (referred to in this section 

10 as the ‘Brochure’) to be developed by the De11 partment of Health and Human Services under 

12 subsection (c) or with the information described 

13 in subsection (c)(2) relating to accessing such 

14 Brochure. 

15 ‘‘(C) UNBORN CHILD PAIN AWARENESS

16 DECISION FORM.—An abortion provider to 

17 which paragraph (1) applies shall provide the 

18 pregnant woman with the Unborn Child Pain 

19 Awareness Decision Form (provided for under 

20 subsection (d)) and obtain the appropriate sig21 nature of the woman on such form. 

22 ‘‘(c) UNBORN CHILD PAIN AWARENESS BRO23 CHURE.— 

24 ‘‘(1) DEVELOPMENT.—Not later than 90 days 

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1 retary shall develop an Unborn Child Pain Aware2 ness Brochure. Such Brochure shall— 

3 ‘‘(A) be written in English and Spanish; 

4 ‘‘(B) contain the following text: ‘Your doc5 tor has determined that, in his or her best me6 dial judgment, your unborn child is at least 20 

7 weeks old. There is a significant body of evi8 dence that unborn children at 20 weeks after 

9 fertilization have the physical structures nec10 essary to experience pain. There is substantial 

11 evidence that at least by this point, unborn chil12 dren draw away from surgical instruments in a 

13 manner which in an infant or an adult would be 

14 interpreted as a response to pain. There is sub15 stantial evidence that the process of being killed 

16 in an abortion will cause the unborn child pain, 

17 even though you receive a pain-reducing drug or 

18 drugs. Under the Federal Unborn Child Pain 

19 Awareness Act of 2011, you have a right to 

20 know that there is evidence that the process of 

21 being killed in an abortion will cause your un22 born child pain. You may request that anes23 thesia or other pain-reducing drug or drugs are 

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1 ministering such drug or drugs would be to re2 duce or eliminate the capacity of the unborn 

3 child to experience pain during the abortion 

4 procedure. In some cases, there may be some 

5 additional risk to you associated with admin6 istering such a drug.’; 

7 ‘‘(C) contain greater detail on her option 

8 of having a pain-reducing drug or drugs admin9 istered to the unborn child to reduce the experi10 ence of pain by the unborn child during the 

11 abortion; 

12 ‘‘(D) be written in an objective and 

13 nonjudgmental manner and be printed in a 

14 typeface large enough to be clearly legible; and 

15 ‘‘(E) be made available by the Secretary at 

16 no cost to any abortion provider. 

17 ‘‘(2) INTERNET INFORMATION.—The Brochure 

18 under this section shall be available on the Internet 

19 website of the Department of Health and Human 

20 Services at a minimum resolution of 70 DPI (dots 

21 per inch). All pictures appearing on the website shall 

22 be a minimum of 200x300 pixels. All letters on the 

23 website shall be a minimum of 12 point font. All 

24 such information and pictures shall be accessible 


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1 with an industry standard browser, requiring no ad2 ditional plug-ins. 

3 ‘‘(3) PRESENTATION OF BROCHURE.—An abor4 tion provider or his or her agent must provide a 

5 pregnant woman with the Brochure, developed under 

6 paragraph (1), before any part of an abortion of a 

7 pain-capable child begins. The brochure may be pro8 vided— 

9 ‘‘(A) through an in-person visit by the 

10 pregnant woman; 

11 ‘‘(B) through an e-mail attachment, from 

12 the abortion provider or his or her agent; or 

13 ‘‘(C) by certified mail, mailed to the 

14 woman at least 72 hours before any part of the 

15 abortion begins. 

16 ‘‘(4) WAIVER.—After the abortion provider or 

17 his or her agent offers to provide a pregnant woman 

18 the brochure, a pregnant woman may waive receipt 

19 of the brochure under this subsection by signing the 

20 waiver form contained in the Unborn Child Pain 

21 Awareness Decision Form. 

22 ‘‘(d) UNBORN CHILD PAIN AWARENESS DECISION

23 FORM.—Not later than 30 days after the date of enact24 ment of this title, the Secretary shall develop an Unborn 


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1 Child Pain Awareness Decision Form. To be valid, such 

2 form shall— 

3 ‘‘(1) with respect to the pregnant woman— 

4 ‘‘(A) contain a statement that affirms that 

5 the woman has received or been offered all of 

6 the information required in subsection (b); 

7 ‘‘(B) affirm that the woman has read the 

8 following statement: ‘You are considering hav9 ing an abortion of an unborn child who will 

10 have developed, at the time of the abortion, ap11 proximately ll weeks after fertilization. 

12 There is a significant body of evidence that un13 born children at 20 weeks after fertilization 

14 have the physical structures necessary to expe15 rience pain. There is substantial evidence that 

16 at least by this point, unborn children draw 

17 away from surgical instruments in a manner 

18 which in an infant or an adult would be inter19 preted as a response to pain. There is substan20 tial evidence that the process of being killed in 

21 an abortion will cause the unborn child pain, 

22 even though you receive a pain-reducing drug or 

23 drugs. Under the Federal Unborn Child Pain 

24 Awareness Act of 2011, you have a right to 

25 know that there is evidence that the process of 


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1 being killed in an abortion will cause your un2 born child pain. You may request that anes3 thesia or other pain-reducing drug or drugs are 

4 administered directly to the pain-capable un5 born child if you so desire. The purpose of ad6 ministering such drug or drugs would be to re7 duce or eliminate the capacity of the unborn 

8 child to experience pain during the abortion 

9 procedure. In some cases, there may be some 

10 additional risk to you associated with admin11 istering such a drug.’; 

12 ‘‘(C) require the woman to explicitly either 

13 request or refuse the administration of pain-re14 ducing drugs to the unborn child; and 

15 ‘‘(D) be signed by a pregnant woman prior 

16 to the performance of an abortion involving a 

17 pain-capable unborn child; and 

18 ‘‘(2) with respect to the abortion provider— 

19 ‘‘(A) contain a statement that the provider 

20 has provided the woman with all of the informa21 tion required under subsection (b); 

22 ‘‘(B) if applicable, contain a certification 

23 by the provider that an exception described in 

24 section 3403 applies and the detailed reasons 

25 for such certification; and 


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1 ‘‘(C) be signed by the provider prior to the 

2 performance of the abortion procedure. 

3 ‘‘(e) MAINTENANCE OF RECORDS.—The Secretary 

4 shall promulgate regulations relating to the period of time 

5 during which copies of forms under subsection (d) shall 

6 be maintained by abortion providers. 

7 ‘‘SEC. 3403. EXCEPTION TO SAVE THE LIFE OF THE MOTH8 ER. 

9 ‘‘The provisions of section 3402 shall not apply to 

10 an abortion provider in the case that the abortion is nec11 essary to save the life of a mother whose life is endangered 

12 by a physical disorder, physical illness, or physical injury, 

13 including a life-endangering physical condition caused by 

14 or arising from the pregnancy itself. 

15 ‘‘SEC. 3404. PENALTIES FOR FAILURE TO COMPLY. 

16 ‘‘(a) IN GENERAL.—An abortion provider who will17 fully fails to comply with the provisions of this title shall 

18 be subject to civil penalties in accordance with this section 

19 in an appropriate Federal court. 

20 ‘‘(b) COMMENCEMENT OF ACTION.—The Attorney 

21 General of the United States may commence a civil action 

22 under this section. 

23 ‘‘(c) FIRST OFFENSE.—Upon a finding by a court 

24 that a respondent in an action commenced under this sec25 tion has knowingly violated a provision of this title, the 


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1 court shall notify the appropriate State medical licensing 

2 authority and shall assess a civil penalty against the re3 spondent in an amount not to exceed $100,000. 

4 ‘‘(d) SECOND AND SUBSEQUENT OFFENSES.—Upon 

5 a finding by a court that the respondent in an action com6 menced under this section has knowingly violated a provi7 sion of this title and the respondent has been found to 

8 have knowingly violated a provision of this title on a prior 

9 occasion, the court shall notify the appropriate State med10 ical licensing authority and shall assess a civil penalty 

11 against the respondent in an amount not to exceed 

12 $250,000. 

13 ‘‘(e) PRIVATE RIGHT OF ACTION.—A pregnant 

14 woman upon whom an abortion has been performed in vio15 lation of this title, or the parent or legal guardian of such 

16 a woman if she is an unemancipated minor, may com17 mence a civil action against the abortion provider for any 

18 knowing or reckless violation of this title for actual and 

19 punitive damages.’’. 

20 SEC. 4. PREEMPTION. 

21 Nothing in this Act or the amendments made by this 

22 Act shall be construed to preempt any provision of State 

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1 born children from pain than the protections provided 

2 under this Act and the amendments made by this Act. 

3 SEC. 5. SEVERABILITY. 

4 The provisions of this Act shall be severable. If any 

5 provision of this Act, or any application thereof, is found 

6 unconstitutional, that finding shall not affect any provi7 sion or application of the Act not so adjudicated. 

Æ 


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