I 
114TH CONGRESS 
1ST SESSION 
H. R. 36 
To amend title 18, United States Code, to protect pain-capable unborn 
children, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 6, 2015 
Mr. FRANKS of Arizona (for himself and Mrs. BLACKBURN) introduced the 
following bill; which was referred to the Committee on the Judiciary 
A BILL 
To amend title 18, United States Code, to protect pain- 
capable unborn children, and for other purposes. 
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 ‘‘Pain-Capable Unborn 
Child Protection Act’’. 
SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF 
CONSTITUTIONAL AUTHORITY FOR ENACT-
MENT. 
Congress finds and declares the following: 
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
(1) Pain receptors (nociceptors) are present 
throughout the unborn child’s entire body and 
nerves link these receptors to the brain’s thalamus 
and subcortical plate by no later than 20 weeks after 
fertilization. 
(2) By 8 weeks after fertilization, the unborn 
child reacts to touch. After 20 weeks, the unborn 
child reacts to stimuli that would be recognized as 
painful if applied to an adult human, for example, 
by recoiling. 
(3) In the unborn child, application of such 
painful stimuli is associated with significant in-
creases in stress hormones known as the stress re-
sponse. 
(4) Subjection to such painful stimuli is associ-
ated with long-term harmful neurodevelopmental ef-
fects, such as altered pain sensitivity and, possibly, 
emotional, behavioral, and learning disabilities later 
in life. 
(5) For the purposes of surgery on unborn chil-
dren, fetal anesthesia is routinely administered and 
is associated with a decrease in stress hormones 
compared to their level when painful stimuli are ap-
plied without such anesthesia. In the United States, 
surgery of this type is being performed by 20 weeks 
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
after fertilization and earlier in specialized units af-
filiated with children’s hospitals. 
(6) The position, asserted by some physicians, 
that the unborn child is incapable of experiencing 
pain until a point later in pregnancy than 20 weeks 
after fertilization predominately rests on the as-
sumption that the ability to experience pain depends 
on the cerebral cortex and requires nerve connec-
tions between the thalamus and the cortex. However, 
recent medical research and analysis, especially since 
2007, provides strong evidence for the conclusion 
that a functioning cortex is not necessary to experi-
ence pain. 
(7) Substantial evidence indicates that children 
born missing the bulk of the cerebral cortex, those 
with hydranencephaly, nevertheless experience pain. 
(8) In adult humans and in animals, stimula-
tion or ablation of the cerebral cortex does not alter 
pain perception, while stimulation or ablation of the 
thalamus does. 
(9) Substantial evidence indicates that struc-
tures used for pain processing in early development 
differ from those of adults, using different neural 
elements available at specific times during develop-
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
ment, such as the subcortical plate, to fulfill the role 
of pain processing. 
(10) The position, asserted by some commenta-
tors, that the unborn child remains in a coma-like 
sleep state that precludes the unborn child experi-
encing pain is inconsistent with the documented re-
action of unborn children to painful stimuli and with 
the experience of fetal surgeons who have found it 
necessary to sedate the unborn child with anesthesia 
to prevent the unborn child from engaging in vig-
orous movement in reaction to invasive surgery. 
(11) Consequently, there is substantial medical 
evidence that an unborn child is capable of experi-
encing pain at least by 20 weeks after fertilization, 
if not earlier. 
(12) It is the purpose of the Congress to assert 
a compelling governmental interest in protecting the 
lives of unborn children from the stage at which sub-
stantial medical evidence indicates that they are ca-
pable of feeling pain. 
(13) The compelling governmental interest in 
protecting the lives of unborn children from the 
stage at which substantial medical evidence indicates 
that they are capable of feeling pain is intended to 
be separate from and independent of the compelling 
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
governmental interest in protecting the lives of un-
born children from the stage of viability, and neither 
governmental interest is intended to replace the 
other. 
(14) Congress has authority to extend protec-
tion to pain-capable unborn children under the Su-
preme Court’s Commerce Clause precedents and 
under the Constitution’s grants of powers to Con-
gress under the Equal Protection, Due Process, and 
Enforcement Clauses of the Fourteenth Amendment. 
SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. 
(a) IN GENERAL.—Chapter 74 of title 18, United 
States Code, is amended by inserting after section 1531 
the following: 
‘‘§ 1532. Pain-capable unborn child protection 
‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 
other provision of law, it shall be unlawful for any person 
to perform an abortion or attempt to do so, unless in con-
formity with the requirements set forth in subsection (b). 
‘‘(b) REQUIREMENTS FOR ABORTIONS.— 
‘‘(1) The physician performing or attempting 
the abortion shall first make a determination of the 
probable post-fertilization age of the unborn child or 
reasonably rely upon such a determination made by 
another physician. In making such a determination, 
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
the physician shall make such inquiries of the preg-
nant woman and perform or cause to be performed 
such medical examinations and tests as a reasonably 
prudent physician, knowledgeable about the case and 
the medical conditions involved, would consider nec-
essary to make an accurate determination of post- 
fertilization age. 
‘‘(2)(A) Except as provided in subparagraph 
(B), the abortion shall not be performed or at-
tempted, if the probable post-fertilization age, as de-
termined under paragraph (1), of the unborn child 
is 20 weeks or greater. 
‘‘(B) Subject to subparagraph (C), subpara-
graph (A) does not apply if— 
‘‘(i) in reasonable medical judgment, the 
abortion is necessary to save the life of a preg-
nant woman 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 preg-
nancy itself, but not including psychological or 
emotional conditions; or 
‘‘(ii) the pregnancy is the result of rape, or 
the result of incest against a minor, if the rape 
has been reported at any time prior to the abor-
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS
tion to an appropriate law enforcement agency, 
or if the incest against a minor has been re-
ported at any time prior to the abortion to an 
appropriate law enforcement agency or to a 
government agency legally authorized to act on 
reports of child abuse or neglect. 
‘‘(C) Notwithstanding the definitions of ‘abor-
tion’ and ‘attempt an abortion’ in this section, a 
physician terminating or attempting to terminate a 
pregnancy under an exception provided by subpara-
graph (B) may do so only in the manner which, in 
reasonable medical judgment, provides the best op-
portunity for the unborn child to survive, unless, in 
reasonable medical judgment, termination of the 
pregnancy in that manner would pose a greater risk 
of— 
‘‘(i) the death of the pregnant woman; or 
‘‘(ii) the substantial and irreversible phys-
ical impairment of a major bodily function, not 
including psychological or emotional conditions, 
of the pregnant woman; 
than would other available methods. 
‘‘(c) CRIMINAL PENALTY.—Whoever violates sub-
section (a) shall be fined under this title or imprisoned 
for not more than 5 years, or both. 
VerDate Sep 11 2014 
04:25 Jan 09, 2015
Jkt 049200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H36.IH
H36
emcdonald on DSK67QTVN1PROD with BILLS