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 Com-
mittee on Energy and Commerce 
A BILL 
To ensure that women seeking an abortion are fully informed 
regarding the pain experienced by their unborn child.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Unborn Child Pain 
Awareness Act of 2004’’. 
SEC. 2. FINDINGS. 
Congress makes the following findings:
(1) At least 20 weeks after fertilization, an un-
born child has the physical structures necessary to 
experience pain. 
(2) There is substantial evidence that by 20 
weeks after fertilization, unborn children draw away 
from certain stimuli in a manner which in an infant 
or an adult would be interpreted as a response to 
pain. 
(3) Anesthesia is routinely administered to un-
born children who have developed 20 weeks or more 
past fertilization who undergo prenatal surgery. 
(4) There is substantial evidence that the abor-
tion methods most commonly used 20 weeks after 
fertilization cause substantial pain to an unborn 
child, whether by dismemberment, poisoning, pene-
trating or crushing the skull, or other methods. Ex-
amples of abortion methods used 20 weeks after fer-
tilization include, but are not limited to the fol-
lowing: 
(A) The Dilation and Evacuation (DE) 
method of abortion is commonly performed in 
the second trimester of pregnancy. In a dilation 
and evacuation abortion, the unborn child’s 
body parts are grasped at random with a long-
toothed clamp. The fetal body parts are then
torn off of the body and pulled out of the vag-
inal canal. The remaining body parts are 
grasped and pulled out until only the head re-
mains. The head is then grasped and crushed 
in order to remove it from the vaginal canal. 
(B) Partial-Birth Abortion is an abortion 
in which the abortion practitioner delivers an 
unborn child’s body until only the head remains 
inside the womb, punctures the back of the 
child’s skull with a sharp instrument, and sucks 
the child’s brains out before completing the de-
livery of the dead infant. 
(5) Expert testimony confirms that by 20 weeks 
after fertilization an unborn child may experience 
substantial pain even if the woman herself has re-
ceived local analgesic or general anesthesia. 
(6) Medical science is capable of reducing such 
pain through the administration of anesthesia or 
other pain-reducing drugs directly to the unborn 
child. 
(7) There is a valid Federal Government inter-
est in reducing the number of events in which great 
pain is inflicted on sentient creatures. Examples of 
this are laws governing the use of laboratory animals 
and requiring pain-free methods of slaughtering live-
stock, which include, but are not limited to the fol-
lowing: 
(A) Section 2 of the Humane Slaughter 
Act (7 U.S.C. 1902) states, ‘‘No method of 
slaughter or handling in connection with 
slaughtering shall be deemed to comply with the 
public policy of the United States unless it is 
humane. Either of the following two methods of 
slaughtering and handling are hereby found to 
be humane: 
‘‘(i) in the case of cattle, calves, 
horses, mules, sheep, swine, and other live-
stock, all animals are rendered insensible 
to pain by a single blow or gunshot or an 
electrical, chemical or other means that is 
rapid and effective, before being shackled, 
hoisted, thrown, cast, or cut; or 
‘‘(ii) by slaughtering in accordance 
with the ritual requirements of the Jewish 
faith or any other religious faith that pre-
scribes a method of slaughter whereby the 
animal suffers loss of consciousness by 
anemia of the brain caused by the simulta-
neous and instantaneous severance of the 
carotid arteries with a sharp instrument
and handling in connection with such 
slaughtering.’’. 
(B) Section 13(a)(3) of the Animal Wel-
fare Act (7 U.S.C. 2143(a)(3)) sets the stand-
ards and certification process for the humane 
handling, care, treatment, and transportation of 
animals. This includes having standards with 
respect to animals in research facilities that in-
clude requirements— 
‘‘(i) for animal care, treatment, and 
practices in experimental procedures to en-
sure that animal pain and distress are 
minimized, including adequate veterinary 
care with the appropriate use of anesthetic, 
analgesic, tranquilizing drugs, or eutha-
nasia; 
‘‘(ii) that the principal investigator 
considers alternatives to any procedure 
likely to produce pain to or distress in an 
experimental animal; 
‘‘(iii) in any practice which could 
cause pain to animals— 
‘‘(I) that a doctor of veterinary 
medicine is consulted in the planning 
of such procedures;
‘‘(II) for the use of tranquilizers, 
analgesics, and anesthetics; 
‘‘(III) for pre-surgical and post- 
surgical care by laboratory workers, in 
accordance with established veterinary 
medical and nursing procedures; 
‘‘(IV) against the use of para-
lytics without anesthesia; and 
‘‘(V) that the withholding of 
tranquilizers, anesthesia, analgesia, or 
euthanasia when scientifically nec-
essary shall continue for only the nec-
essary period of time;’’. 
(C) Section 495 of the Public Health Serv-
ice Act (42 U.S.C. 289d) directs the Secretary 
of Health and Human Services, acting through 
the Director of the National Institutes of 
Health, to establish guidelines for research fa-
cilities as to the proper care and treatment of 
animals, including the appropriate use of tran-
quilizers, analgesics, and other drugs, except 
that such guidelines may not prescribe methods 
of research. Entities that conduct biomedical 
and behavioral research with National Insti-
tutes of Health funds must establish animal
care committees which must conduct reviews at 
least semi-annually and report to the Director 
of such Institutes at least annually. If the Di-
rector determines that an entity has not been 
following the guidelines, the Director must give 
the entity an opportunity to take corrective ac-
tion, and, if the entity does not, the Director 
must suspend or revoke the grant or contract 
involved. 
SEC. 3. AMENDMENT TO THE PUBLIC HEALTH SERVICE 
ACT. 
The Public Health Service Act (42 U.S.C. 201 et 
seq.) is amended by adding at the end the following: 
‘‘TITLE XXIX—UNBORN CHILD 
PAIN AWARENESS 
‘‘SEC. 2901. DEFINITIONS. 
‘‘In this title: 
‘‘(1) ABORTION.—The term ‘abortion’ means 
the intentional use or prescription of any instru-
ment, medicine, drug, or any other substance or de-
vice to terminate the pregnancy of a woman known 
to be pregnant with an intention other than to in-
crease the probability of a live birth, to preserve the 
life or health of the child after live birth, or to re-
move a dead fetus.
‘‘(2) ABORTION PROVIDER.—The term ‘abortion 
provider’ means any person legally qualified to per-
form an abortion under applicable Federal and State 
laws. 
‘‘(3) PAIN-CAPABLE UNBORN CHILD.—
‘‘(A) IN GENERAL.—The term ‘pain-capa-
ble unborn child’ means an unborn child who 
has reached a probable stage of development of 
20 weeks after fertilization. 
‘‘(B) RULE OF CONSTRUCTION.—Nothing 
in subparagraph (A) shall be construed as a de-
termination or finding by Congress that pain 
may not in fact be experienced by an unborn 
child at stages of development prior to 20 weeks 
after fertilization. 
‘‘(4) PROBABLE AGE OF DEVELOPMENT.—The 
term ‘probable age of development’ means the dura-
tion of development after fertilization of the unborn 
child at the time an abortion is performed, as deter-
mined in the good faith judgment of the abortion 
provider on the basis of examination of the unborn 
child using ultrasound or other imaging technology, 
in addition to information obtained by interviewing 
the pregnant woman.
‘‘(5) UNBORN CHILD.—The term ‘unborn child’ 
means a member of the species homo sapiens, at any 
stage of development, who is carried in the womb. 
‘‘(6) WOMAN.—The term ‘woman’ means a fe-
male human being who is capable of becoming preg-
nant, whether or not she has reached the age of ma-
jority. 
‘‘SEC. 2902. REQUIREMENT OF INFORMED CONSENT. 
‘‘(a) REQUIREMENT
OF
COMPLIANCE
BY
PRO-
VIDERS.—An abortion provider performing any abortion, 
of a pain-capable unborn child, that is in or affecting 
interstate commerce shall comply with the requirements 
of this title. 
‘‘(b) PROVISION OF CONSENT.—
‘‘(1) IN GENERAL.—Before any part of an abor-
tion involving a pain-capable unborn child begins, 
the abortion provider or his or her agent shall pro-
vide the pregnant woman involved, by telephone or 
in person, with the information described in para-
graph (2). 
‘‘(2) REQUIRED INFORMATION.—
‘‘(A) ORAL STATEMENT.—
‘‘(i) IN GENERAL.—An abortion pro-
vider or the provider’s agent to whom 
paragraph (1) applies shall make the fol-
lowing oral statement to the pregnant 
woman (or in the case of a deaf or non-
English speaking woman, provide the 
statement in a manner that she can easily 
understand): 
You are considering having an abortion of 
an unborn child who will have developed, 
at the time of the abortion, approximately 
ll weeks after fertilization. The Con-
gress of the United States has determined 
that at this stage of development, an un-
born child has the physical structures nec-
essary to experience pain. There is sub-
stantial evidence that by this point, unborn 
children draw away from surgical instru-
ments in a manner which in an infant or 
an adult would be interpreted as a re-
sponse to pain. Congress finds that there 
is substantial evidence that the process of 
being killed in an abortion will cause the 
unborn child pain, even though you receive 
a pain-reducing drug or drugs. Under the 
Federal Unborn Child Pain Awareness Act 
of 2004, you have the option of choosing to 
have anesthesia or other pain-reducing
drug or drugs administered directly to the 
pain-capable unborn child if you so desire. 
The purpose of administering such drug or 
drugs would be to reduce or eliminate the 
capacity of the unborn child to experience 
pain during the abortion procedure. In 
some cases, there may be some additional 
risk to you associated with administering 
such a drug.’. 
‘‘(ii) DESCRIPTION OF RISKS.—After 
making the statement required under 
clause (i), the abortion provider may pro-
vide the woman involved with his or her 
best medical judgment on the risks of ad-
ministering such anesthesia or analgesic, if 
any, and the costs associated therewith. 
‘‘(iii) 
ADMINISTRATION
OF
ANES-
THESIA.—If the abortion provider is not 
qualified or willing to administer the anes-
thesia or other pain-reducing drug in re-
sponse to the request of a pregnant women 
after making the statement required under 
clause (i), the provider shall—
‘‘(I) arrange for a qualified spe-
cialist to administer such anesthesia 
or drug; or 
‘‘(II) 
advise 
the 
pregnant 
woman—
‘‘(aa) where she may obtain 
such anesthesia or other pain re-
ducing drugs for the unborn child 
in the course of an abortion; or 
‘‘(bb) that the abortion pro-
vider is unable to perform the 
abortion if the woman elects to 
receive anesthesia or other pain-
reducing drug for her unborn 
child. 
‘‘(iv) RULE
OF
CONSTRUCTION.—
Nothing in this section may be construed 
to impede an abortion provider or the 
abortion provider’s agent from offering 
their own evaluation on the capacity of the 
unborn child to experience pain, the advis-
ability 
of 
administering 
pain-reducing 
drugs to the unborn child, or any other 
matter, as long as such provider or agent 
provides the required information, obtains
the woman’s signature on the decision 
form, and otherwise complies with the af-
firmative requirements of the law. 
‘‘(B) UNBORN
CHILD
PAIN
AWARENESS 
BROCHURE.—An abortion provider to whom 
paragraph (1) applies shall provide the preg-
nant woman with the Unborn Child Pain 
Awareness Brochure (referred to in this section 
as the ‘Brochure’) to be developed by the De-
partment of Health and Human Services under 
subsection (c) or with the information described 
in subsection (c)(2) relating to accessing such 
Brochure. 
‘‘(C) UNBORN
CHILD
PAIN
AWARENESS 
DECISION
FORM.—An abortion provider to 
which paragraph (1) applies shall provide the 
pregnant woman with the Unborn Child Pain 
Awareness Decision Form (provided for under 
subsection (c)) and obtain the appropriate sig-
nature of the woman on such form. 
‘‘(c) UNBORN
CHILD
PAIN
AWARENESS
BRO-
CHURE.—
‘‘(1) DEVELOPMENT.—Not later than 90 days 
after the date of enactment of this title, the Sec-
retary shall develop an Unborn Child Pain Aware-
ness Brochure. Such Brochure shall be written in 
English and Spanish and shall contain the same in-
formation as required under the statement under 
subsection (b)(2)(A)(i), including greater detail on 
her option of having a pain-reducing drug or drugs 
administered to the unborn child to reduce the expe-
rience of pain by the unborn child during the abor-
tion. Such information shall be written in an objec-
tive and nonjudgmental manner and be printed in a 
typeface large enough to be clearly legible. The Bro-
chure shall be made available by the Secretary at no 
cost to any abortion provider. 
‘‘(2) INTERNET INFORMATION.—The Brochure 
under this section shall be available on the Internet 
website of the Department of Health and Human 
Services at a minimum resolution of 70 DPI (dots 
per inch). All pictures appearing on the website shall 
be a minimum of 200x300 pixels. All letters on the 
website shall be a minimum of 12 point font. All 
such information and pictures shall be accessible 
with an industry standard browser, requiring no ad-
ditional plug-ins. 
‘‘(3) PRESENTATION OF BROCHURE.—An abor-
tion provider or his or her agent must offer to pro-
vide a pregnant woman with the Brochure, developed
under paragraph (1), before any part of an abortion 
of a pain-capable child begins—
‘‘(A) through an in-person visit by the 
pregnant woman; 
‘‘(B) through an e-mail attachment, from 
the abortion provider or his or her agent; or 
‘‘(C) through a request to have such Bro-
chure mailed, by certified mail, to the woman at 
least 72 hours before any part of the abortion 
begins. 
‘‘(4) WAIVER.—After the abortion provider or 
his or her agent offers to provide a pregnant woman 
the Brochure, a pregnant woman may waive receipt 
of the Brochure under this subsection by signing the 
waiver form contained in the Unborn Child Pain 
Awareness Decision Form. 
‘‘(5) UNBORN CHILD PAIN AWARENESS DECI-
SION FORM.—Not later than 30 days after the date 
of enactment of this title, the Secretary shall develop 
an Unborn Child Pain Awareness Decision Form. 
To be valid, such Form shall—
‘‘(A) 
with 
respect 
to 
the 
pregnant 
woman—
‘‘(i) contain a statement that affirms 
that the woman has received or been of-
fered all of the information required in 
subsection (b); 
‘‘(ii) require the woman to explicitly 
either request or refuse the administration 
of pain-reducing drugs to the unborn child; 
‘‘(iii) be signed by a pregnant woman 
prior to the performance of an abortion in-
volving a pain-capable unborn child; and 
‘‘(B) with respect to the abortion pro-
vider—
‘‘(i) contain a statement that the pro-
vider has provided the woman with all of 
the information required under subsection 
(b); 
‘‘(ii) if applicable, contain a certifi-
cation by the provider that an exception 
described in section 2903 applies and the 
detailed reasons for such certification; and 
‘‘(iii) be signed by the provider prior 
to the performance of the abortion proce-
dure. 
‘‘(6) MAINTENANCE
OF
RECORDS.—The Sec-
retary shall promulgate regulations relating to the 
period of time during which copies of Forms under
paragraph (5) shall be maintained by abortion pro-
viders. 
‘‘SEC. 2903. EXCEPTION FOR MEDICAL EMERGENCIES. 
‘‘(a) IN GENERAL.—The provisions of section 2902 
shall not apply to an abortion provider in the case of a 
medical emergency. 
‘‘(b) MEDICAL EMERGENCY DEFINED.—
‘‘(1) IN GENERAL.—In subsection (a), the term 
‘medical emergency’ means a condition which, in the 
reasonable medical judgment of the abortion pro-
vider, so complicates the medical condition of the 
pregnant woman that a delay in commencing an 
abortion procedure would impose a serious risk of 
causing grave and irreversible physical health dam-
age entailing substantial impairment of a major bod-
ily function. 
‘‘(2) REASONABLE
MEDICAL
JUDGMENT.—In 
paragraph (1), the term ‘reasonable medical judg-
ment’ means a medical judgment that would be 
made by a reasonably prudent physician, knowledge-
able about the case and the treatment possibilities 
with respect to the medical conditions involved. 
‘‘(c) CERTIFICATION.—
‘‘(1) IN GENERAL.—Upon a determination by 
an abortion provider under subsection (a) that a
tion under this section, shall certify to the court involved 
that, at least 30 calendar days prior to the filing of such 
action, the Attorney General, the Deputy Attorney Gen-
eral, the Associate Attorney General, or any Assistant At-
torney General or United States Attorney involved—
‘‘(1) has provided notice of the alleged violation 
of this section, in writing, to the Governor or Chief 
Executive Officer and Attorney General or Chief 
Legal Officer of the State or political subdivision in-
volved, as well as to the State medical licensing 
board or other appropriate State agency; and 
‘‘(2) believes that such an action by the United 
States is in the public interest and necessary to se-
cure substantial justice. 
‘‘(d) FIRST OFFENSE.—Upon a finding by a court 
that a respondent in an action commenced under this sec-
tion has knowingly violated a provision of this title, the 
court shall notify the appropriate State medical licensing 
authority in order to effect the suspension of the respond-
ent’s medical license in accordance with the regulations 
and procedures promulgated under section 2905, or shall 
assess a civil penalty against the respondent in an amount 
not to exceed $100,000, or both. 
‘‘(e) SECOND OFFENSE.—Upon a finding by a court 
that the respondent in an action commenced under this
section has knowingly violated a provision of this title and 
the respondent has been found to have knowingly violated 
a provision of this title on a prior occasion, the court shall 
notify the appropriate State medical licensing authority in 
order to effect the revocation of the respondent’s medical 
license in accordance with the regulations and procedures 
promulgated under section 2905, or shall assess a civil 
penalty against the respondent in an amount not to exceed 
$250,000, or both. 
‘‘(f) HEARING.—With respect to an action under this 
section, the appropriate State medical licensing authority 
shall be given notification of and an opportunity to be 
heard at a hearing to determine the penalty to be imposed 
under this section. 
‘‘(g) PRIVATE
RIGHT
OF
ACTION.—A pregnant 
woman upon whom an abortion has been performed in vio-
lation of this title, or the parent or legal guardian of such 
a woman if she is an unemancipated minor, may com-
mence a civil action against the abortion provider for any 
knowing or reckless violation of this title for actual and 
punitive damages. 
‘‘SEC. 2905. REGULATIONS. 
‘‘A State, and the medical licensing authority of the 
State, shall promulgate regulations and procedures for the 
revocation or suspension of the medical license of an abor-
tion provider upon a finding by a court under section 2904 
that the provider has violated a provision of this title. A 
State that fails to implement such procedures shall be sub-
ject to loss of funding under title XIX of the Social Secu-
rity Act (42 U.S.C. 1396 et seq.).’’. 
SEC. 4. PREEMPTION. 
Nothing in this Act or the amendments made by this 
Act shall be construed to preempt any provision of State 
law to the extent that such State law establishes, imple-
ments, or continues in effect greater protections for un-
born children from pain than the protections provided 
under this Act and the amendments made by this Act.
Æ