IIB 
115TH CONGRESS 
1ST SESSION 
H. R. 36 
IN THE SENATE OF THE UNITED STATES 
OCTOBER 4, 2017 
Received; read twice and referred to the Committee on the Judiciary 
AN ACT 
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, 
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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: 
(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. 
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(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 
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 
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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-
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-
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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 
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: 
‘‘SEC. 1532. PAIN-CAPABLE UNBORN CHILD PROTECTION. 
‘‘(a) UNLAWFUL CONDUCT.—Notwithstanding any 
other provision of law, it shall be unlawful for any person 
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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) ASSESSMENT OF THE AGE OF THE UN-
BORN
CHILD.—The physician performing or at-
tempting the abortion shall first make a determina-
tion of the probable post-fertilization age of the un-
born child or reasonably rely upon such a determina-
tion made by another physician. In making such a 
determination, the physician shall make such inquir-
ies of the pregnant 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 necessary to make an accurate deter-
mination of post-fertilization age. 
‘‘(2) PROHIBITION ON PERFORMANCE OF CER-
TAIN ABORTIONS.— 
‘‘(A) GENERALLY FOR UNBORN CHILDREN 
20 WEEKS OR OLDER.—Except as provided in 
subparagraph (B), the abortion shall not be 
performed or attempted, if the probable post- 
fertilization age, as determined under para-
graph (1), of the unborn child is 20 weeks or 
greater. 
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‘‘(B) 
EXCEPTIONS.—Subparagraph 
(A) 
does not apply if— 
‘‘(i) in reasonable medical judgment, 
the abortion is necessary to save the life of 
a pregnant woman whose life is endan-
gered by a physical disorder, physical ill-
ness, or physical injury, including a life-en-
dangering physical condition caused by or 
arising from the pregnancy itself, but not 
including psychological or emotional condi-
tions; 
‘‘(ii) the pregnancy is the result of 
rape against an adult woman, and at least 
48 hours prior to the abortion— 
‘‘(I) she has obtained counseling 
for the rape; or 
‘‘(II) she has obtained medical 
treatment for the rape or an injury 
related to the rape; or 
‘‘(iii) the pregnancy is a result of rape 
against a minor or incest against a minor, 
and the rape or incest has been reported at 
any time prior to the abortion to either— 
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‘‘(I) a government agency legally 
authorized to act on reports of child 
abuse; or 
‘‘(II) a law enforcement agency. 
‘‘(C) REQUIREMENT
AS
TO
MANNER
OF 
PROCEDURE
PERFORMED.—Notwithstanding 
the definitions of ‘abortion’ and ‘attempt an 
abortion’ in this section, a physician termi-
nating or attempting to terminate a pregnancy 
under an exception provided by subparagraph 
(B) may do so only in the manner which, in 
reasonable medical judgment, provides the best 
opportunity for the unborn child to survive. 
‘‘(D) REQUIREMENT
THAT
A
PHYSICIAN 
TRAINED
IN
NEONATAL
RESUSCITATION
BE 
PRESENT.—If, in reasonable medical judgment, 
the pain-capable unborn child has the potential 
to survive outside the womb, the physician who 
performs or attempts an abortion under an ex-
ception provided by subparagraph (B) shall en-
sure a second physician trained in neonatal re-
suscitation is present and prepared to provide 
care to the child consistent with the require-
ments of subparagraph (E). 
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‘‘(E) CHILDREN BORN ALIVE AFTER AT-
TEMPTED ABORTIONS.—When a physician per-
forms or attempts an abortion in accordance 
with this section, and the child is born alive, as 
defined in section 8 of title 1 (commonly known 
as the Born-Alive Infants Protection Act of 
2002), the following shall apply: 
‘‘(i) DEGREE OF CARE REQUIRED.— 
Any health care practitioner present at the 
time shall humanely exercise the same de-
gree of professional skill, care, and dili-
gence to preserve the life and health of the 
child as a reasonably diligent and conscien-
tious health care practitioner would render 
to a child born alive at the same gesta-
tional age in the course of a natural birth. 
‘‘(ii) IMMEDIATE
ADMISSION
TO
A 
HOSPITAL.—Following the care required to 
be rendered under clause (i), the child born 
alive shall be immediately transported and 
admitted to a hospital. 
‘‘(iii) MANDATORY
REPORTING
OF 
VIOLATIONS.—A health care practitioner or 
any employee of a hospital, a physician’s 
office, or an abortion clinic who has knowl-
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edge of a failure to comply with the re-
quirements of this subparagraph must im-
mediately report the failure to an appro-
priate State or Federal law enforcement 
agency or both. 
‘‘(F) DOCUMENTATION REQUIREMENTS.— 
‘‘(i) DOCUMENTATION PERTAINING TO 
ADULTS.—A physician who performs or at-
tempts to perform an abortion under an 
exception provided by subparagraph (B)(ii) 
shall, prior to the abortion, place in the pa-
tient medical file documentation from a 
hospital licensed by the State or operated 
under authority of a Federal agency, a 
medical clinic licensed by the State or op-
erated under authority of a Federal agen-
cy, from a personal physician licensed by 
the State, a counselor licensed by the 
State, or a victim’s rights advocate pro-
vided by a law enforcement agency that the 
adult woman seeking the abortion obtained 
medical treatment or counseling for the 
rape or an injury related to the rape. 
‘‘(ii) DOCUMENTATION
PERTAINING 
TO MINORS.—A physician who performs or 
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attempts to perform an abortion under an 
exception 
provided 
by 
subparagraph 
(B)(iii) shall, prior to the abortion, place in 
the patient medical file documentation 
from a government agency legally author-
ized to act on reports of child abuse that 
the rape or incest was reported prior to the 
abortion; or, as an alternative, documenta-
tion from a law enforcement agency that 
the rape or incest was reported prior to the 
abortion. 
‘‘(G) INFORMED CONSENT.— 
‘‘(i) CONSENT FORM REQUIRED.—The 
physician who intends to perform or at-
tempt to perform an abortion under the 
provisions of subparagraph (B) may not 
perform any part of the abortion procedure 
without first obtaining a signed Informed 
Consent Authorization form in accordance 
with this subparagraph. 
‘‘(ii) CONTENT OF CONSENT FORM.— 
The Informed Consent Authorization form 
shall be presented in person by the physi-
cian and shall consist of— 
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‘‘(I) a statement by the physician 
indicating the probable post-fertiliza-
tion age of the pain-capable unborn 
child; 
‘‘(II) a statement that Federal 
law allows abortion after 20 weeks 
fetal age only if the mother’s life is 
endangered by a physical disorder, 
physical illness, or physical injury, 
when the pregnancy was the result of 
rape, or an act of incest against a 
minor; 
‘‘(III) a statement that the abor-
tion must be performed by the method 
most likely to allow the child to be 
born alive unless this would cause sig-
nificant risk to the mother; 
‘‘(IV) a statement that in any 
case in which an abortion procedure 
results in a child born alive, Federal 
law requires that child to be given 
every form of medical assistance that 
is provided to children spontaneously 
born prematurely, including transpor-
tation and admittance to a hospital; 
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‘‘(V) a statement that these re-
quirements are binding upon the phy-
sician and all other medical personnel 
who are subject to criminal and civil 
penalties and that a woman on whom 
an abortion has been performed may 
take civil action if these requirements 
are not followed; and 
‘‘(VI) affirmation that each sign-
er has filled out the informed consent 
form to the best of their knowledge 
and understands the information con-
tained in the form. 
‘‘(iii) SIGNATORIES
REQUIRED.—The 
Informed Consent Authorization form shall 
be signed in person by the woman seeking 
the abortion, the physician performing or 
attempting to perform the abortion, and a 
witness. 
‘‘(iv) 
RETENTION
OF
CONSENT 
FORM.—The physician performing or at-
tempting to perform an abortion must re-
tain the signed informed consent form in 
the patient’s medical file. 
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‘‘(H) REQUIREMENT
FOR
DATA
RETEN-
TION.—Paragraph (j)(2) of section 164.530 of 
title 45, Code of Federal Regulations, shall 
apply to documentation required to be placed in 
a patient’s medical file pursuant to subpara-
graph (F) of subsection (b)(2) and a consent 
form required to be retained in a patient’s med-
ical file pursuant to subparagraph (G) of such 
subsection in the same manner and to the same 
extent as such paragraph applies to documenta-
tion required by paragraph (j)(1) of such sec-
tion. 
‘‘(I) ADDITIONAL
EXCEPTIONS
AND
RE-
QUIREMENTS.— 
‘‘(i) IN CASES OF RISK OF DEATH OR 
MAJOR
INJURY
TO
THE
MOTHER.—Sub-
paragraphs (C), (D), and (G) shall not 
apply if, in reasonable medical judgment, 
compliance with such paragraphs would 
pose a greater risk of— 
‘‘(I) the death of the pregnant 
woman; or 
‘‘(II) the substantial and irre-
versible physical impairment of a 
major bodily function, not including 
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psychological or emotional conditions, 
of the pregnant woman. 
‘‘(ii) EXCLUSION OF CERTAIN FACILI-
TIES.—Notwithstanding the definitions of 
the terms ‘medical treatment’ and ‘coun-
seling’ in subsection (g), the counseling or 
medical treatment described in subpara-
graph (B)(ii) may not be provided by a fa-
cility that performs abortions (unless that 
facility is a hospital). 
‘‘(iii) RULE
OF
CONSTRUCTION
IN 
CASES
OF
REPORTS
TO
LAW
ENFORCE-
MENT.—The requirements of subparagraph 
(B)(ii) do not apply if the rape has been 
reported at any time prior to the abortion 
to a law enforcement agency or Depart-
ment of Defense victim assistance per-
sonnel. 
‘‘(iv) COMPLIANCE
WITH
CERTAIN 
STATE LAWS.— 
‘‘(I) STATE
LAWS
REGARDING 
REPORTING OF RAPE AND INCEST.— 
The physician who performs or at-
tempts to perform an abortion under 
an exception provided by subpara-
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graph (B) shall comply with such ap-
plicable State laws that are in effect 
as the State’s Attorney General may 
designate, regarding reporting re-
quirements in cases of rape or incest. 
‘‘(II) STATE
LAWS
REGARDING 
PARENTAL INVOLVEMENT.—The phy-
sician who intends to perform an 
abortion on a minor under an excep-
tion provided by subparagraph (B) 
shall comply with any applicable State 
laws requiring parental involvement in 
a minor’s decision to have an abor-
tion. 
‘‘(c) CRIMINAL PENALTY.—Whoever violates sub-
section (a) shall be fined under this title or imprisoned 
for not more than 5 years, or both. 
‘‘(d) BAR TO PROSECUTION.—A woman upon whom 
an abortion in violation of subsection (a) is performed or 
attempted may not be prosecuted under, or for a con-
spiracy to violate, subsection (a), or for an offense under 
section 2, 3, or 4 of this title based on such a violation. 
‘‘(e) CIVIL REMEDIES.— 
‘‘(1) CIVIL ACTION BY A WOMAN ON WHOM AN 
ABORTION IS PERFORMED.—A woman upon whom 
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an abortion has been performed or attempted in vio-
lation of any provision of this section may, in a civil 
action against any person who committed the viola-
tion, obtain appropriate relief. 
‘‘(2) CIVIL ACTION BY A PARENT OF A MINOR 
ON WHOM AN ABORTION IS PERFORMED.—A parent 
of a minor upon whom an abortion has been per-
formed or attempted under an exception provided for 
in subsection (b)(2)(B), and that was performed in 
violation of any provision of this section may, in a 
civil action against any person who committed the 
violation obtain appropriate relief, unless the preg-
nancy resulted from the plaintiff’s criminal conduct. 
‘‘(3) APPROPRIATE RELIEF.—Appropriate relief 
in a civil action under this subsection includes— 
‘‘(A) objectively verifiable money damages 
for all injuries, psychological and physical, occa-
sioned by the violation; 
‘‘(B) statutory damages equal to three 
times the cost of the abortion; and 
‘‘(C) punitive damages. 
‘‘(4) ATTORNEYS FEES FOR PLAINTIFF.—The 
court shall award a reasonable attorney’s fee as part 
of the costs to a prevailing plaintiff in a civil action 
under this subsection. 
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‘‘(5) ATTORNEYS FEES FOR DEFENDANT.—If a 
defendant in a civil action under this subsection pre-
vails and the court finds that the plaintiff’s suit was 
frivolous, the court shall award a reasonable attor-
ney’s fee in favor of the defendant against the plain-
tiff. 
‘‘(6) AWARDS AGAINST WOMAN.—Except under 
paragraph (5), in a civil action under this sub-
section, no damages, attorney’s fee or other mone-
tary relief may be assessed against the woman upon 
whom the abortion was performed or attempted. 
‘‘(f) DATA COLLECTION.— 
‘‘(1) DATA SUBMISSIONS.—Any physician who 
performs or attempts an abortion described in sub-
section (b)(2)(B) shall annually submit a summary 
of all such abortions to the National Center for 
Health Statistics (hereinafter referred to as the 
‘Center’) not later than 60 days after the end of the 
calendar year in which the abortion was performed 
or attempted. 
‘‘(2) CONTENTS OF SUMMARY.—The summary 
shall include the number of abortions performed or 
attempted on an unborn child who had a post-fer-
tilization age of 20 weeks or more and specify the 
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following 
for 
each 
abortion 
under 
subsection 
(b)(2)(B)— 
‘‘(A) the probable post-fertilization age of 
the unborn child; 
‘‘(B) the method used to carry out the 
abortion; 
‘‘(C) the location where the abortion was 
conducted; 
‘‘(D) 
the 
exception 
under 
subsection 
(b)(2)(B) under which the abortion was con-
ducted; and 
‘‘(E) any incident of live birth resulting 
from the abortion. 
‘‘(3) EXCLUSIONS FROM DATA SUBMISSIONS.— 
A summary required under this subsection shall not 
contain any information identifying the woman 
whose pregnancy was terminated and shall be sub-
mitted consistent with the Health Insurance Port-
ability and Accountability Act of 1996 (42 U.S.C. 
1320d–2 note). 
‘‘(4) PUBLIC REPORT.—The Center shall annu-
ally issue a public report providing statistics by 
State for the previous year compiled from all of the 
summaries made to the Center under this sub-
section. The Center shall take care to ensure that 
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none of the information included in the public re-
ports could reasonably lead to the identification of 
any pregnant woman upon whom an abortion was 
performed or attempted. The annual report shall be 
issued by July 1 of the calendar year following the 
year in which the abortions were performed or at-
tempted. 
‘‘(g) DEFINITIONS.—In this section the following 
definitions apply: 
‘‘(1) ABORTION.—The term ‘abortion’ means 
the use or prescription of any instrument, medicine, 
drug, or any other substance or device— 
‘‘(A) to intentionally kill the unborn child 
of a woman known to be pregnant; or 
‘‘(B) to intentionally terminate the preg-
nancy of a woman known to be pregnant, with 
an intention other than— 
‘‘(i) after viability to produce a live 
birth and preserve the life and health of 
the child born alive; or 
‘‘(ii) to remove a dead unborn child. 
‘‘(2) ATTEMPT.—The term ‘attempt’, with re-
spect to an abortion, means conduct that, under the 
circumstances as the actor believes them to be, con-
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stitutes a substantial step in a course of conduct 
planned to culminate in performing an abortion. 
‘‘(3) 
COUNSELING.—The 
term 
‘counseling’ 
means counseling provided by a counselor licensed 
by the State, or a victims rights advocate provided 
by a law enforcement agency. 
‘‘(4) FACILITY.—The term ‘facility’ means any 
medical or counseling group, center or clinic and in-
cludes the entire legal entity, including any entity 
that controls, is controlled by, or is under common 
control with such facility. 
‘‘(5) FERTILIZATION.—The term ‘fertilization’ 
means the fusion of human spermatozoon with a 
human ovum. 
‘‘(6) MEDICAL TREATMENT.—The term ‘med-
ical treatment’ means treatment provided at a hos-
pital licensed by the State or operated under author-
ity of a Federal agency, at a medical clinic licensed 
by the State or operated under authority of a Fed-
eral agency, or from a personal physician licensed by 
the State. 
‘‘(7) MINOR.—The term ‘minor’ means an indi-
vidual who has not attained the age of 18 years. 
‘‘(8) PERFORM.—The term ‘perform’, with re-
spect to an abortion, includes inducing an abortion 
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