Pain-Capable Unborn Child Protection Act

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Pain-Capable Unborn Child Protection 
Act''.

SEC. 2. LEGISLATIVE FINDINGS.

    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 increases in stress 
        hormones known as the stress response.
            (4) Subjection to such painful stimuli is associated with 
        long-term harmful neurodevelopmental effects, such as altered 
        pain sensitivity and, possibly, emotional, behavioral, and 
        learning disabilities later in life.
            (5) For the purposes of surgery on unborn children, fetal 
        anesthesia is routinely administered and is associated with a 
        decrease in stress hormones compared to their level when 
        painful stimuli are applied without such anesthesia. In the 
        United States, surgery of this type is being performed by 20 
        weeks after fertilization and earlier in specialized units 
        affiliated 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 assumption that the ability to 
        experience pain depends on the cerebral cortex and requires 
        nerve connections 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 experience 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, stimulation or ablation 
        of the cerebral cortex does not alter pain perception, while 
        stimulation or ablation of the thalamus does.
            (9) Substantial evidence indicates that structures used for 
        pain processing in early development differ from those of 
        adults, using different neural elements available at specific 
        times during development, such as the subcortical plate, to 
        fulfill the role of pain processing.
            (10) The position, asserted by some commentators, that the 
        unborn child remains in a coma-like sleep state that precludes 
        the unborn child experiencing pain is inconsistent with the 
        documented reaction 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 vigorous movement in reaction 
        to invasive surgery.
            (11) Consequently, there is substantial medical evidence 
        that an unborn child is capable of experiencing 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 substantial medical 
        evidence indicates that they are capable 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 
        unborn children from the stage of viability, and neither 
        governmental interest is intended to replace the other.

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 to perform an abortion or 
attempt to do so, unless in conformity 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, the physician shall make such inquiries 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 determination of post-fertilization age.
            ``(2)(A) Except as provided in subparagraph (B), the 
        abortion shall not be performed or attempted, if the probable 
        post-fertilization age, as determined under paragraph (1), of 
        the unborn child is 20 weeks or greater.
            ``(B) Subject to subparagraph (C), 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 endangered by a physical disorder, physical 
                illness, or physical injury, including a life-
                endangering physical condition caused by or arising 
                from the pregnancy 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 abortion to an 
                appropriate law enforcement agency, or if the incest 
                against a minor has been reported 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 `abortion' and 
        `attempt an abortion' in this section, a physician terminating 
        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, 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 physical 
                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 subsection (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 conspiracy to violate, subsection (a), or 
for an offense under section 2, 3, or 4 of this title based on such a 
violation.
    ``(e) 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 pregnancy 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 an abortion.--The term `attempt', with 
        respect to an abortion, means conduct that, under the 
        circumstances as the actor believes them to be, constitutes a 
        substantial step in a course of conduct planned to culminate in 
        performing an abortion.
            ``(3) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
            ``(4) Perform.--The term `perform', with respect to an 
        abortion, includes induce an abortion through a medical or 
        chemical intervention including writing a prescription for a 
        drug or device intended to result in an abortion.
            ``(5) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise legally authorized to 
        perform an abortion.
            ``(6) Post-fertilization age.--The term `post-fertilization 
        age' means the age of the unborn child as calculated from the 
        fusion of a human spermatozoon with a human ovum.
            ``(7) Probable post-fertilization age of the unborn 
        child.--The term `probable post-fertilization age of the unborn 
        child' means what, in reasonable medical judgment, will with 
        reasonable probability be the postfertilization age of the 
        unborn child at the time the abortion is planned to be 
        performed or induced.
            ``(8) Reasonable medical judgment.--The term `reasonable 
        medical judgment' means a medical judgment that would be made 
        by a reasonably prudent physician, knowledgeable about the case 
        and the treatment possibilities with respect to the medical 
        conditions involved.
            ``(9) Unborn child.--The term `unborn child' means an 
        individual organism of the species homo sapiens, beginning at 
        fertilization, until the point of being born alive as defined 
        in section 8(b) of title 1.
            ``(10) Woman.--The term `woman' means a female human being 
        whether or not she has reached the age of majority.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 74 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1532. Pain-capable unborn child protection.''.
    (c) Chapter Heading Amendments.--
            (1) Chapter heading in chapter.--The chapter heading for 
        chapter 74 of title 18, United States Code, is amended by 
        striking ``PARTIAL-BIRTH ABORTIONS'' and inserting 
        ``ABORTIONS''.
            (2) Table of chapters for part i.--The item relating to 
        chapter 74 in the table of chapters at the beginning of part I 
        of title 18, United States Code, is amended by striking 
        ``Partial-Birth Abortions'' and inserting ``Abortions''.

Summary: Pain-Capable Unborn Child Protection Act - Amends the federal criminal code to prohibit any person from performing or attempting to perform an abortion except in conformity with this Act's requirements.  Requires the physician to first determine the probable post-fertilization age of the unborn child, or reasonably rely upon such a determination made by another physician, by making inquiries of the pregnant woman and performing such medical examinations and tests as a reasonably prudent physician would consider necessary.  Prohibits the abortion from being performed if the probable post-fertilization age of the unborn child is 20 weeks or greater, except: (1) where necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, illness, or injury, excluding psychological or emotional conditions; or (2) where 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 abortion to an appropriate law enforcement agency, or if the incest has been reported 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. Permits a physician to terminate a pregnancy under such an exception only in the manner that provides the best opportunity for the unborn child to survive, unless that manner would pose a greater risk than other available methods would pose of the death or substantial and irreversible physical impairment of a major bodily function, excluding psychological or emotional conditions, of the pregnant woman. Subjects individuals who violate this Act to a fine, imprisonment for not more than five years, or both. Bars prosecution of a woman upon whom an abortion is performed in violation of this Act for violating or conspiring to violate this Act. Defines "abortion" to mean the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally kill an unborn child or to intentionally terminate a pregnancy with an intention other than: (1) after viability, to produce a live birth and preserve the life and health of the child; or (2) to remove a dead unborn child.