I 
111TH CONGRESS 
2D SESSION 
H. R. 5276 
To ensure that women seeking an abortion are fully informed regarding 
the pain experienced by their unborn child. 
IN THE HOUSE OF REPRESENTATIVES 
MAY 11, 2010 
Mr. SMITH of New Jersey (for himself, Mr. ADERHOLT, Mr. AKIN, Mr. ALEX-
ANDER, Mrs. BACHMANN, Mr. BARTLETT, Mr. BACHUS, Mr. BARRETT 
of South Carolina, Mr. BILBRAY, Mr. BILIRAKIS, Mr. BISHOP of Utah, 
Mrs. BLACKBURN, Mr. BLUNT, Mr. BOEHNER, Mr. BOOZMAN, Mr. BUR-
TON of Indiana, Mr. CARTER, Mr. CANTOR, Mr. CAO, Mr. CHAFFETZ, 
Mr. CONAWAY, Mr. COSTELLO, Mr. DAVIS of Kentucky, Mr. DUNCAN, 
Mr. FLEMING, Mr. FORTENBERRY, Ms. FOXX, Mr. FRANKS of Arizona, 
Mr. GOHMERT, Mr. GOODLATTE, Mr. GRIFFITH, Mr. HENSARLING, Mr. 
HERGER, Mr. HOEKSTRA, Mr. HUNTER, Mr. INGLIS, Mr. JOHNSON of 
Illinois, Mr. JONES, Mr. JORDAN of Ohio, Mr. KING of Iowa, Mr. 
LAMBORN, Mr. LATTA, Mr. LIPINSKI, Mr. DANIEL E. LUNGREN of Cali-
fornia, Mr. MANZULLO, Mr. MARCHANT, Mr. MCCAUL, Mr. MCCOTTER, 
Mrs. MCMORRIS RODGERS, Mrs. MILLER of Michigan, Mr. GARY G. MIL-
LER of California, Mr. NEUGEBAUER, Mr. OLSON, Mr. PENCE, Mr. 
PITTS, Mr. POE of Texas, Mr. RADANOVICH, Mr. RAHALL, Mr. ROE of 
Tennessee, Mr. ROGERS of Kentucky, Mr. ROGERS of Alabama, Ms. ROS- 
LEHTINEN, Mr. RYAN of Wisconsin, Mr. SCALISE, Mrs. SCHMIDT, Mr. 
SENSENBRENNER, Mr. SHADEGG, Mr. SHIMKUS, Mr. SHUSTER, Mr. 
SOUDER, Mr. THOMPSON of Pennsylvania, Mr. TIAHRT, Mr. WILSON of 
South Carolina, and Mr. BROUN of Georgia) 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. 
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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 2010’’. 
SEC. 2. FINDINGS. 
Congress makes the following findings: 
(1) At least by 20 weeks after fertilization, an 
unborn 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 
after fertilization who undergo prenatal surgery. 
(4) There is substantial evidence that the abor-
tion methods most commonly used 20 weeks or more 
after fertilization cause substantial pain to an un-
born child, whether by dismemberment, poisoning, 
penetrating or crushing the skull, or other methods. 
Examples of abortion methods used 20 weeks or 
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more after fertilization include, but are not limited 
to the following: 
(A) The dilation and evacuation (D and E) 
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 with a long-toothed 
clamp. The fetal body parts are then torn from 
the body and pulled out of the vaginal canal. 
The remaining body parts are grasped and 
pulled out until only the head remains. 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 un-
born 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, and as further defined 
in section 1531 of title 18, United States Code. 
(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. 
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(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 preventing or reducing the infliction of pain 
on sentient creatures. Examples of this are laws gov-
erning the use of laboratory animals and requiring 
pain-free methods of slaughtering livestock, which 
include, but are not limited to the following: 
(A) Section 2 of the Act commonly known 
as the Humane Slaughter Act of 1958 (Public 
Law 85–765; 7 U.S.C. 1902) states, ‘‘No meth-
od 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 
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analgesic, tranquilizing drugs, or eutha-
nasia; 
(ii) that the principal investigator con-
siders alternatives to any procedure likely 
to produce pain to or distress in an experi-
mental animal; and 
(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 paralytics 
without anesthesia; and 
(V) that the withholding of tran-
quilizers, anesthesia, analgesia, or eu-
thanasia when scientifically necessary 
shall continue for only the necessary 
period of time. 
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(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 semiannually and report to the Director of 
such Institutes at least annually. If the Director 
determines that an entity has not been fol-
lowing 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. 
(8) There is a valid Federal Government inter-
est in preventing harm to developing human life at 
all stages. Examples of this include regulations pro-
tecting fetal human subjects from risks of ‘‘harm or 
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discomfort’’ in federally funded biomedical research, 
45 C.F.R. 102(i) and 45 C.F.R. 46.201 et seq. 
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 XXXIII—UNBORN CHILD 
PAIN AWARENESS 
‘‘SEC. 3301. 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 or method to terminate the life of an unborn 
child, or to terminate the pregnancy of a woman 
known to be pregnant with an intention other 
than— 
‘‘(A) to produce a live birth and preserve 
the life and health of the child after live birth; 
or 
‘‘(B) to remove an ectopic pregnancy, or to 
remove a dead unborn child who died as the re-
sult of a spontaneous abortion, accidental trau-
ma or a criminal assault on the pregnant fe-
male or her unborn child. 
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‘‘(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 or more 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 
or more 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 using generally accepted medical criteria 
and information obtained by interviewing the preg-
nant woman. 
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‘‘(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 whether or not she has reached 
the age of majority. 
‘‘(7) 
UNEMANCIPATED
MINOR.—The 
term 
‘unemancipated minor’ means an individual who is 
not older than 18 years and who is not emancipated 
under State law. 
‘‘SEC. 3302. REQUIREMENT OF INFORMED CONSENT. 
‘‘(a) REQUIREMENT
OF
COMPLIANCE
BY
PRO-
VIDERS.—Any abortion provider in or affecting interstate 
or foreign commerce, who knowingly performs any abor-
tion of a pain-capable unborn child, 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). It may not be provided by a tape record-
ing, but must be provided in a fashion that permits 
the woman to ask questions of and receive answers 
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from the abortion provider or his agent. (In the case 
of the Unborn Child Pain Awareness Brochure, it 
may be provided pursuant to subsection (c)(2) or 
(c)(3)). 
‘‘(2) REQUIRED INFORMATION.— 
‘‘(A) IN GENERAL.—An abortion provider 
or the provider’s agent to whom paragraph (1) 
applies shall provide the following information 
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 un-
derstand): 
‘‘(i) AGE
OF
UNBORN
BABY.—The 
probable age of development of the unborn 
baby based on the number of weeks since 
fertilization. 
‘‘(ii) UNBORN
CHILD
PAIN
AWARE-
NESS BROCHURE.—An abortion provider to 
whom paragraph (1) applies must provide 
the pregnant woman with the Unborn 
Child Pain Awareness Brochure (referred 
to in this section as the ‘Brochure’) to be 
developed by the Department of Health 
and Human Services under subsection (c) 
or with the information described in sub-
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section (c)(2) relating to accessing such 
Brochure. 
‘‘(iii) 
USE
OF
PAIN-PREVENTING 
DRUGS.—Drugs administered to the moth-
er may not prevent the unborn child from 
feeling pain, but in some cases, anesthesia 
or other pain-reducing drug or drugs can 
be administered directly to the unborn 
child. 
‘‘(iv) DESCRIPTION OF RISKS.—After 
providing the information required under 
clauses (i), (ii), and (iii) the abortion pro-
vider shall provide the woman involved 
with his or her best medical judgment on 
the risks, if any, of administering such an-
esthesia or analgesic, and the costs associ-
ated therewith. 
‘‘(v) 
ADMINISTRATION
OF
ANES-
THESIA.—If the abortion provider is not 
qualified or willing to administer the anes-
thesia or other pain-reducing drug to an 
unborn child in response to a request from 
a pregnant women, the provider shall— 
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‘‘(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 requires 
that she receive anesthesia or 
other pain-reducing drug for her 
unborn child. 
‘‘(vi) UNBORN
CHILD
PAIN
AWARE-
NESS DECISION FORM.—An abortion pro-
vider to which paragraph (1) applies shall 
provide the pregnant woman with the Un-
born Child Pain Awareness Decision Form 
(provided for under subsection (d)) and ob-
tain the appropriate signature of the 
woman on such form. 
‘‘(vii) RULE
OF
CONSTRUCTION.— 
Nothing in this section may be construed 
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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 
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Awareness Decision Form (provided for under 
subsection (d)) 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— 
‘‘(A) be written in English and Spanish; 
‘‘(B) Contain the following text: ‘Your doc-
tor has determined that, in his or her best me-
dial judgment, your unborn child is at least 20 
weeks old. There is a significant body of evi-
dence that unborn children at 20 weeks after 
fertilization have the physical structures nec-
essary to experience pain. There is substantial 
evidence that at least by this point, unborn chil-
dren draw away from surgical instruments in a 
manner which in an infant or an adult would be 
interpreted as a response to pain. There is sub-
stantial 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 
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Awareness Act of 2010, you have a right to 
know that there is evidence that the process of 
being killed in an abortion will cause your un-
born child pain. You may request that anes-
thesia or other pain-reducing drug or drugs are 
administered directly to the pain-capable un-
born child if you so desire. The purpose of ad-
ministering such drug or drugs would be to re-
duce 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 admin-
istering such a drug.’; 
‘‘(C) contain greater detail on her option 
of having a pain-reducing drug or drugs admin-
istered to the unborn child to reduce the experi-
ence of pain by the unborn child during the 
abortion; 
‘‘(D) be written in an objective and 
nonjudgmental manner and be printed in a 
typeface large enough to be clearly legible; and 
‘‘(E) 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 
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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 provide a 
pregnant woman with the Brochure, developed under 
paragraph (1), before any part of an abortion of a 
pain-capable child begins. The brochure may be pro-
vided— 
‘‘(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) by certified mail, mailed 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 
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waiver form contained in the Unborn Child Pain 
Awareness Decision Form. 
‘‘(d) UNBORN CHILD PAIN AWARENESS DECISION 
FORM.—Not later than 30 days after the date of enact-
ment of this title, the Secretary shall develop an Unborn 
Child Pain Awareness Decision Form. To be valid, such 
form shall— 
‘‘(1) with respect to the pregnant woman— 
‘‘(A) contain a statement that affirms that 
the woman has received or been offered all of 
the information required in subsection (b); 
‘‘(B) affirm that the woman has read the 
following statement: ‘You are considering hav-
ing an abortion of an unborn child who will 
have developed, at the time of the abortion, ap-
proximately ll weeks after fertilization. 
There is a significant body of evidence that un-
born children at 20 weeks after fertilization 
have the physical structures necessary to expe-
rience pain. There is substantial evidence that 
at least by this point, unborn children draw 
away from surgical instruments in a manner 
which in an infant or an adult would be inter-
preted as a response to pain. There is substan-
tial evidence that the process of being killed in 
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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 2010, you have a right to 
know that there is evidence that the process of 
being killed in an abortion will cause your un-
born child pain. You may request that anes-
thesia or other pain-reducing drug or drugs are 
administered directly to the pain-capable un-
born child if you so desire. The purpose of ad-
ministering such drug or drugs would be to re-
duce 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 admin-
istering such a drug.’; 
‘‘(C) require the woman to explicitly either 
request or refuse the administration of pain-re-
ducing drugs to the unborn child; and 
‘‘(D) be signed by a pregnant woman prior 
to the performance of an abortion involving a 
pain-capable unborn child; and 
‘‘(2) with respect to the abortion provider— 
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‘‘(A) contain a statement that the provider 
has provided the woman with all of the informa-
tion required under subsection (b); 
‘‘(B) if applicable, contain a certification 
by the provider that an exception described in 
section 3303 applies and the detailed reasons 
for such certification; and 
‘‘(C) be signed by the provider prior to the 
performance of the abortion procedure. 
‘‘(e) MAINTENANCE OF RECORDS.—The Secretary 
shall promulgate regulations relating to the period of time 
during which copies of forms under subsection (d) shall 
be maintained by abortion providers. 
‘‘SEC. 3303. EXCEPTION TO SAVE THE LIFE OF THE MOTH-
ER. 
‘‘The provisions of section 3302 shall not apply to 
an abortion provider in the case that the abortion is nec-
essary to save the life of a mother whose life is endangered 
by a physical disorder, physical illness, or physical injury, 
including a life-endangering physical condition caused by 
or arising from the pregnancy itself. 
‘‘SEC. 3304. PENALTIES FOR FAILURE TO COMPLY. 
‘‘(a) IN GENERAL.—An abortion provider who will-
fully fails to comply with the provisions of this title shall 
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be subject to civil penalties in accordance with this section 
in an appropriate Federal court. 
‘‘(b) COMMENCEMENT OF ACTION.—The Attorney 
General of the United States may commence a civil action 
under this section. 
‘‘(c) 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 and shall assess a civil penalty against the re-
spondent in an amount not to exceed $100,000. 
‘‘(d) SECOND AND SUBSEQUENT OFFENSES.—Upon 
a finding by a court that the respondent in an action com-
menced under this section has knowingly violated a provi-
sion 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 med-
ical licensing authority and shall assess a civil penalty 
against the respondent in an amount not to exceed 
$250,000. 
‘‘(e) 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 
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knowing or reckless violation of this title for actual and 
punitive damages.’’. 
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. 
SEC. 5. SEVERABILITY. 
The provisions of this Act shall be severable. If any 
provision of this Act, or any application thereof, is found 
unconstitutional, that finding shall not affect any provi-
sion or application of the Act not so adjudicated. 
Æ 
VerDate Mar 15 2010 
02:59 May 12, 2010
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