I 

108TH CONGRESS 

2D SESSION H. R. 4420

To ensure that women seeking an abortion are fully informed regarding 

the pain experienced by their unborn child. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 20, 2004

Mr. SMITH of New Jersey (for himself, Mr. HYDE, Mrs. JO ANN DAVIS of 

Virginia, Mr. ALEXANDER, Mr. PITTS, Mrs. MYRICK, Mr. SOUDER, Mr. 

BURGESS, Mr. LINCOLN DIAZ-BALART of Florida, Ms. ROS-LEHTINEN, 

Mr. ADERHOLT, Mr. TIAHRT, Mr. CRANE, Mr. NEUGEBAUER, Mr. 

FRANKS of Arizona, Mr. ISTOOK, Mr. AKIN, Mr. STEARNS, Mr. RENZI, 

Mr. SHIMKUS, Mr. PENCE, Mr. DEMINT, Mr. COLLINS, Mr. BRADY of 

Texas, Mr. KING of Iowa, Mr. TANCREDO, Mr. RYUN of Kansas, and Mr. 

TOOMEY) introduced the following bill; which was referred to the Committee on Energy and Commerce 

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 2004’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 
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1 (1) At least 20 weeks after fertilization, an un2 born 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 past fertilization who undergo prenatal surgery. 

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

14 fertilization cause substantial pain to an unborn 

15 child, whether by dismemberment, poisoning, pene16 trating or crushing the skull, or other methods. Ex17 amples of abortion methods used 20 weeks after fer18 tilization include, but are not limited to the fol19 lowing: 

20 (A) The Dilation and Evacuation (DE) 

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 at random with a long25 toothed clamp. The fetal body parts are then 
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1 torn off of the body and pulled out of the vag2 inal canal. The remaining body parts are 

3 grasped and pulled out until only the head re4 mains. The head is then grasped and crushed 

5 in order to remove it from the vaginal canal. 

6 (B) Partial-Birth Abortion is an abortion 

7 in which the abortion practitioner delivers an 

8 unborn 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. 

13 (5) Expert testimony confirms that by 20 weeks 

14 after fertilization an unborn child may experience 

15 substantial pain even if the woman herself has re16 ceived local analgesic or general anesthesia. 

17 (6) Medical science is capable of reducing such 

18 pain through the administration of anesthesia or 

19 other pain-reducing drugs directly to the unborn 

20 child. 

21 (7) There is a valid Federal Government inter22 est in reducing the number of events in which great 

23 pain is inflicted on sentient creatures. Examples of 

24 this are laws governing the use of laboratory animals 

25 and requiring pain-free methods of slaughtering live-
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1 stock, which include, but are not limited to the fol2 lowing: 

3 (A) Section 2 of the Humane Slaughter 

4 Act (7 U.S.C. 1902) states, ‘‘No method of 

5 slaughter or handling in connection with 

6 slaughtering shall be deemed to comply with the 

7 public policy of the United States unless it is 

8 humane. Either of the following two methods of 

9 slaughtering and handling are hereby found to 

10 be humane: 

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

12 horses, mules, sheep, swine, and other live13 stock, all animals are rendered insensible 

14 to pain by a single blow or gunshot or an 

15 electrical, chemical or other means that is 

16 rapid and effective, before being shackled, 

17 hoisted, thrown, cast, or cut; or 

18 ‘‘(ii) by slaughtering in accordance 

19 with the ritual requirements of the Jewish 

20 faith or any other religious faith that pre21 scribes a method of slaughter whereby the 

22 animal suffers loss of consciousness by 

23 anemia of the brain caused by the simulta24 neous and instantaneous severance of the 

25 carotid arteries with a sharp instrument 
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1 and handling in connection with such 

2 slaughtering.’’. 

3 (B) Section 13(a)(3) of the Animal Wel4 fare Act (7 U.S.C. 2143(a)(3)) sets the stand5 ards and certification process for the humane 

6 handling, care, treatment, and transportation of 

7 animals. This includes having standards with 

8 respect to animals in research facilities that in9 clude requirements— 

10 ‘‘(i) for animal care, treatment, and 

11 practices in experimental procedures to en12 sure that animal pain and distress are 

13 minimized, including adequate veterinary 

14 care with the appropriate use of anesthetic, 

15 analgesic, tranquilizing drugs, or eutha16 nasia; 

17 ‘‘(ii) that the principal investigator 

18 considers alternatives to any procedure 

19 likely to produce pain to or distress in an 

20 experimental animal; 

21 ‘‘(iii) in any practice which could 

22 cause pain to animals— 

23 ‘‘(I) that a doctor of veterinary 

24 medicine is consulted in the planning 

25 of such procedures; 
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1 ‘‘(II) for the use of tranquilizers, 

2 analgesics, and anesthetics; 

3 ‘‘(III) for pre-surgical and post4 surgical care by laboratory workers, in 

5 accordance with established veterinary 

6 medical and nursing procedures; 

7 ‘‘(IV) against the use of para8 lytics without anesthesia; and 

9 ‘‘(V) that the withholding of 

10 tranquilizers, anesthesia, analgesia, or 

11 euthanasia when scientifically nec12 essary shall continue for only the nec13 essary period of time;’’. 

14 (C) Section 495 of the Public Health Serv15 ice Act (42 U.S.C. 289d) directs the Secretary 

16 of Health and Human Services, acting through 

17 the Director of the National Institutes of 

18 Health, to establish guidelines for research fa19 cilities as to the proper care and treatment of 

20 animals, including the appropriate use of tran21 quilizers, analgesics, and other drugs, except 

22 that such guidelines may not prescribe methods 

23 of research. Entities that conduct biomedical 

24 and behavioral research with National Insti25 tutes of Health funds must establish animal 
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1 care committees which must conduct reviews at 

2 least semi-annually and report to the Director 

3 of such Institutes at least annually. If the Di4 rector determines that an entity has not been 

5 following the guidelines, the Director must give 

6 the entity an opportunity to take corrective ac7 tion, and, if the entity does not, the Director 

8 must suspend or revoke the grant or contract 

9 involved. 

10 SEC. 3. AMENDMENT TO THE PUBLIC HEALTH SERVICE 

11 ACT. 

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

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

14 ‘‘TITLE XXIX—UNBORN CHILD 

15 PAIN AWARENESS 

16 ‘‘SEC. 2901. DEFINITIONS. 

17 ‘‘In this title: 

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

19 the intentional use or prescription of any instru20 ment, medicine, drug, or any other substance or de21 vice to terminate the pregnancy of a woman known 

22 to be pregnant with an intention other than to in23 crease the probability of a live birth, to preserve the 

24 life or health of the child after live birth, or to re25 move a dead fetus. 
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1 ‘‘(2) ABORTION PROVIDER.—The term ‘abortion 

2 provider’ means any person legally qualified to per3 form an abortion under applicable Federal and State 

4 laws. 

5 ‘‘(3) PAIN-CAPABLE UNBORN CHILD.—

6 ‘‘(A) IN GENERAL.—The term ‘pain-capa7 ble unborn child’ means an unborn child who 

8 has reached a probable stage of development of 

9 20 weeks after fertilization. 

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

11 in subparagraph (A) shall be construed as a de12 termination or finding by Congress that pain 

13 may not in fact be experienced by an unborn 

14 child at stages of development prior to 20 weeks 

15 after fertilization. 

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

17 term ‘probable age of development’ means the dura18 tion of development after fertilization of the unborn 

19 child at the time an abortion is performed, as deter20 mined in the good faith judgment of the abortion 

21 provider on the basis of examination of the unborn 

22 child using ultrasound or other imaging technology, 

23 in addition to information obtained by interviewing 

24 the pregnant woman. 
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1 ‘‘(5) UNBORN CHILD.—The term ‘unborn child’ 

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

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

4 ‘‘(6) WOMAN.—The term ‘woman’ means a fe5 male human being who is capable of becoming preg6 nant, whether or not she has reached the age of ma7 jority. 

8 ‘‘SEC. 2902. REQUIREMENT OF INFORMED CONSENT. 

9 ‘‘(a) REQUIREMENT OF COMPLIANCE BY PRO10 VIDERS.—An abortion provider performing any abortion, 

11 of a pain-capable unborn child, that is in or affecting 

12 interstate commerce shall comply with the requirements 

13 of this title. 

14 ‘‘(b) PROVISION OF CONSENT.—

15 ‘‘(1) IN GENERAL.—Before any part of an abor16 tion involving a pain-capable unborn child begins, 

17 the abortion provider or his or her agent shall pro18 vide the pregnant woman involved, by telephone or 

19 in person, with the information described in para20 graph (2). 

21 ‘‘(2) REQUIRED INFORMATION.—

22 ‘‘(A) ORAL STATEMENT.—

23 ‘‘(i) IN GENERAL.—An abortion pro24 vider or the provider’s agent to whom 

25 paragraph (1) applies shall make the fol-
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1 lowing oral statement to the pregnant 

2 woman (or in the case of a deaf or non3 English speaking woman, provide the 

4 statement in a manner that she can easily 

5 understand): 

6 You are considering having an abortion of 

7 an unborn child who will have developed, 

8 at the time of the abortion, approximately 

9 ll weeks after fertilization. The Con10 gress of the United States has determined 

11 that at this stage of development, an un12 born child has the physical structures nec13 essary to experience pain. There is sub14 stantial evidence that by this point, unborn 

15 children draw away from surgical instru16 ments in a manner which in an infant or 

17 an adult would be interpreted as a re18 sponse to pain. Congress finds that there 

19 is substantial evidence that the process of 

20 being killed in an abortion will cause the 

21 unborn child pain, even though you receive 

22 a pain-reducing drug or drugs. Under the 

23 Federal Unborn Child Pain Awareness Act 

24 of 2004, you have the option of choosing to 

25 have anesthesia or other pain-reducing 
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1 drug or drugs administered directly to the 

2 pain-capable unborn child if you so desire. 

3 The purpose of administering such drug or 

4 drugs would be to reduce or eliminate the 

5 capacity of the unborn child to experience 

6 pain during the abortion procedure. In 

7 some cases, there may be some additional 

8 risk to you associated with administering 

9 such a drug.’. 

10 ‘‘(ii) DESCRIPTION OF RISKS.—After 

11 making the statement required under 

12 clause (i), the abortion provider may pro13 vide the woman involved with his or her 

14 best medical judgment on the risks of ad15 ministering such anesthesia or analgesic, if 

16 any, and the costs associated therewith. 

17 ‘‘(iii) ADMINISTRATION OF ANES18 THESIA.—If the abortion provider is not 

19 qualified or willing to administer the anes20 thesia or other pain-reducing drug in re21 sponse to the request of a pregnant women 

22 after making the statement required under 

23 clause (i), the provider shall—
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1 ‘‘(I) arrange for a qualified spe2 cialist to administer such anesthesia 

3 or drug; or 

4 ‘‘(II) advise the pregnant 

5 woman—

6 ‘‘(aa) where she may obtain 

7 such anesthesia or other pain re8 ducing drugs for the unborn child 

9 in the course of an abortion; or 

10 ‘‘(bb) that the abortion pro11 vider is unable to perform the 

12 abortion if the woman elects to 

13 receive anesthesia or other pain14 reducing drug for her unborn 

15 child. 

16 ‘‘(iv) RULE OF CONSTRUCTION.—

17 Nothing in this section may be construed 

18 to impede an abortion provider or the 

19 abortion provider’s agent from offering 

20 their own evaluation on the capacity of the 

21 unborn child to experience pain, the advis22 ability of administering pain-reducing 

23 drugs to the unborn child, or any other 

24 matter, as long as such provider or agent 

25 provides the required information, obtains 
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1 the woman’s signature on the decision 

2 form, and otherwise complies with the af3 firmative requirements of the law. 

4 ‘‘(B) UNBORN CHILD PAIN AWARENESS

5 BROCHURE.—An abortion provider to whom 

6 paragraph (1) applies shall provide the preg7 nant woman with the Unborn Child Pain 

8 Awareness Brochure (referred to in this section 

9 as the ‘Brochure’) to be developed by the De10 partment of Health and Human Services under 

11 subsection (c) or with the information described 

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

13 Brochure. 

14 ‘‘(C) UNBORN CHILD PAIN AWARENESS

15 DECISION FORM.—An abortion provider to 

16 which paragraph (1) applies shall provide the 

17 pregnant woman with the Unborn Child Pain 

18 Awareness Decision Form (provided for under 

19 subsection (c)) and obtain the appropriate sig20 nature of the woman on such form. 

21 ‘‘(c) UNBORN CHILD PAIN AWARENESS BRO22 CHURE.—

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

24 after the date of enactment of this title, the Sec25 retary shall develop an Unborn Child Pain Aware-
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1 ness Brochure. Such Brochure shall be written in 

2 English and Spanish and shall contain the same in3 formation as required under the statement under 

4 subsection (b)(2)(A)(i), including greater detail on 

5 her option of having a pain-reducing drug or drugs 

6 administered to the unborn child to reduce the expe7 rience of pain by the unborn child during the abor8 tion. Such information shall be written in an objec9 tive and nonjudgmental manner and be printed in a 

10 typeface large enough to be clearly legible. The Bro11 chure shall be made available by the Secretary at no 

12 cost to any abortion provider. 

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

14 under this section shall be available on the Internet 

15 website of the Department of Health and Human 

16 Services at a minimum resolution of 70 DPI (dots 

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

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

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

20 such information and pictures shall be accessible 

21 with an industry standard browser, requiring no ad22 ditional plug-ins. 

23 ‘‘(3) PRESENTATION OF BROCHURE.—An abor24 tion provider or his or her agent must offer to pro25 vide a pregnant woman with the Brochure, developed 
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1 under paragraph (1), before any part of an abortion 

2 of a pain-capable child begins—

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

4 pregnant woman; 

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

6 the abortion provider or his or her agent; or 

7 ‘‘(C) through a request to have such Bro8 chure mailed, by certified mail, to the woman at 

9 least 72 hours before any part of the abortion 

10 begins. 

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

12 his or her agent offers to provide a pregnant woman 

13 the Brochure, a pregnant woman may waive receipt 

14 of the Brochure under this subsection by signing the 

15 waiver form contained in the Unborn Child Pain 

16 Awareness Decision Form. 

17 ‘‘(5) UNBORN CHILD PAIN AWARENESS DECI18 SION FORM.—Not later than 30 days after the date 

19 of enactment of this title, the Secretary shall develop 

20 an Unborn Child Pain Awareness Decision Form. 

21 To be valid, such Form shall—

22 ‘‘(A) with respect to the pregnant 

23 woman—

24 ‘‘(i) contain a statement that affirms 

25 that the woman has received or been of-
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1 fered all of the information required in 

2 subsection (b); 

3 ‘‘(ii) require the woman to explicitly 

4 either request or refuse the administration 

5 of pain-reducing drugs to the unborn child; 

6 ‘‘(iii) be signed by a pregnant woman 

7 prior to the performance of an abortion in8 volving a pain-capable unborn child; and 

9 ‘‘(B) with respect to the abortion pro10 vider—

11 ‘‘(i) contain a statement that the pro12 vider has provided the woman with all of 

13 the information required under subsection 

14 (b); 

15 ‘‘(ii) if applicable, contain a certifi16 cation by the provider that an exception 

17 described in section 2903 applies and the 

18 detailed reasons for such certification; and 

19 ‘‘(iii) be signed by the provider prior 

20 to the performance of the abortion proce21 dure. 

22 ‘‘(6) MAINTENANCE OF RECORDS.—The Sec23 retary shall promulgate regulations relating to the 

24 period of time during which copies of Forms under 
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1 paragraph (5) shall be maintained by abortion pro2 viders. 

3 ‘‘SEC. 2903. EXCEPTION FOR MEDICAL EMERGENCIES. 

4 ‘‘(a) IN GENERAL.—The provisions of section 2902 

5 shall not apply to an abortion provider in the case of a 

6 medical emergency. 

7 ‘‘(b) MEDICAL EMERGENCY DEFINED.—

8 ‘‘(1) IN GENERAL.—In subsection (a), the term 

9 ‘medical emergency’ means a condition which, in the 

10 reasonable medical judgment of the abortion pro11 vider, so complicates the medical condition of the 

12 pregnant woman that a delay in commencing an 

13 abortion procedure would impose a serious risk of 

14 causing grave and irreversible physical health dam15 age entailing substantial impairment of a major bod16 ily function. 

17 ‘‘(2) REASONABLE MEDICAL JUDGMENT.—In 

18 paragraph (1), the term ‘reasonable medical judg19 ment’ means a medical judgment that would be 

20 made by a reasonably prudent physician, knowledge21 able about the case and the treatment possibilities 

22 with respect to the medical conditions involved. 

23 ‘‘(c) CERTIFICATION.—

24 ‘‘(1) IN GENERAL.—Upon a determination by 

25 an abortion provider under subsection (a) that a 
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1 medical emergency exists with respect to a pregnant 

2 woman, such provider shall certify the specific med3 ical conditions that constitute the emergency. 

4 ‘‘(2) FALSE STATEMENTS.—An abortion pro5 vider who willfully falsifies a certification under 

6 paragraph (1) shall be subject to all the penalties 

7 provided for under section 2904 for failure to com8 ply with this title. 

9 ‘‘SEC. 2904. PENALTIES FOR FAILURE TO COMPLY. 

10 ‘‘(a) IN GENERAL.—An abortion provider who will11 fully fails to comply with the provisions of this title shall 

12 be subject to civil penalties in accordance with this section 

13 in an appropriate Federal court. 

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

15 General, the Deputy Attorney General, the Associate At16 torney General, or any Assistant Attorney General or 

17 United States Attorney who has been specifically des18 ignated by the Attorney General may commence a civil ac19 tion under this section. 

20 ‘‘(c) CERTIFICATION REQUIREMENTS.—At the time 

21 of the commencement of an action under this section, the 

22 Attorney General, the Deputy Attorney General, the Asso23 ciate Attorney General, or any Assistant Attorney General 

24 or United States Attorney who has been specifically des25 ignated by the Attorney General to commence a civil ac-
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1 tion under this section, shall certify to the court involved 

2 that, at least 30 calendar days prior to the filing of such 

3 action, the Attorney General, the Deputy Attorney Gen4 eral, the Associate Attorney General, or any Assistant At5 torney General or United States Attorney involved—

6 ‘‘(1) has provided notice of the alleged violation 

7 of this section, in writing, to the Governor or Chief 

8 Executive Officer and Attorney General or Chief 

9 Legal Officer of the State or political subdivision in10 volved, as well as to the State medical licensing 

11 board or other appropriate State agency; and 

12 ‘‘(2) believes that such an action by the United 

13 States is in the public interest and necessary to se14 cure substantial justice. 

15 ‘‘(d) FIRST OFFENSE.—Upon a finding by a court 

16 that a respondent in an action commenced under this sec17 tion has knowingly violated a provision of this title, the 

18 court shall notify the appropriate State medical licensing 

19 authority in order to effect the suspension of the respond20 ent’s medical license in accordance with the regulations 

21 and procedures promulgated under section 2905, or shall 

22 assess a civil penalty against the respondent in an amount 

23 not to exceed $100,000, or both. 

24 ‘‘(e) SECOND OFFENSE.—Upon a finding by a court 

25 that the respondent in an action commenced under this 
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1 section has knowingly violated a provision of this title and 

2 the respondent has been found to have knowingly violated 

3 a provision of this title on a prior occasion, the court shall 

4 notify the appropriate State medical licensing authority in 

5 order to effect the revocation of the respondent’s medical 

6 license in accordance with the regulations and procedures 

7 promulgated under section 2905, or shall assess a civil 

8 penalty against the respondent in an amount not to exceed 

9 $250,000, or both. 

10 ‘‘(f) HEARING.—With respect to an action under this 

11 section, the appropriate State medical licensing authority 

12 shall be given notification of and an opportunity to be 

13 heard at a hearing to determine the penalty to be imposed 

14 under this section. 

15 ‘‘(g) PRIVATE RIGHT OF ACTION.—A pregnant 

16 woman upon whom an abortion has been performed in vio17 lation of this title, or the parent or legal guardian of such 

18 a woman if she is an unemancipated minor, may com19 mence a civil action against the abortion provider for any 

20 knowing or reckless violation of this title for actual and 

21 punitive damages. 

22 ‘‘SEC. 2905. REGULATIONS. 

23 ‘‘A State, and the medical licensing authority of the 

24 State, shall promulgate regulations and procedures for the 

25 revocation or suspension of the medical license of an abor-
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1 tion provider upon a finding by a court under section 2904 

2 that the provider has violated a provision of this title. A 

3 State that fails to implement such procedures shall be sub4 ject to loss of funding under title XIX of the Social Secu5 rity Act (42 U.S.C. 1396 et seq.).’’. 

6 SEC. 4. PREEMPTION. 

7 Nothing in this Act or the amendments made by this 

8 Act shall be construed to preempt any provision of State 

9 law to the extent that such State law establishes, imple10 ments, or continues in effect greater protections for un11 born children from pain than the protections provided 

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

Æ