II 116th CONGRESS 2d Session S. 3388 IN THE SENATE OF THE UNITED STATES March 4, 2020 Mrs. Loeffler (for herself, Mrs. Blackburn , Ms. Ernst , Mr. Inhofe , Mr. Lankford , Mr. Braun , and Mr. Scott of Florida ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To ensure that women seeking an abortion are informed of the medical risks associated with the abortion procedure and the major developmental characteristics of the unborn child, before giving their informed consent to receive an abortion.

1. Short title This Act may be cited as the Woman’s Right To Know Act . 2. Requirement of informed consent (a) In general (1) Requirement of compliance by providers Any abortion provider, acting in or affecting interstate or foreign commerce, who knowingly performs, or attempts to perform, any abortion shall comply with the requirements of this section. (2) Review of medical risks and unborn health status An abortion provider who intends to perform, or attempt to perform, an abortion may not perform any part of the abortion procedure without first obtaining a signed Informed Consent Authorization form in accordance with this subsection. (3) Informed consent authorization form (A) In general The Informed Consent Authorization form required under this subsection shall— (i) be presented in person by the abortion provider 24 hours prior to performing, or attempting to perform, the abortion to the woman seeking the abortion; and (ii) consist of— (I) a statement by the abortion provider indicating— (aa) the probable gestational age, in completed days, of the child; (bb) all medical risks associated with the specific abortion procedure; and (cc) the major developmental characteristics of unborn children at such gestational age, including the presence of a heartbeat, the ability to react to painful stimuli, and the development of organs, appendages, and facial features; (II) a statement that the requirements of this subsection are binding upon the abortion provider and all other medical personnel, that such abortion providers and medical personnel are subject to criminal and civil penalties for violations of these requirements, and that a woman on whom an abortion has been performed may take civil action if these requirements are not followed; and (III) an affirmation that each individual signing the Informed Consent Authorization form has filled out the form to the best of his or her knowledge and understands the information contained in the form. (B) Signatories required The Informed Consent Authorization form required under this subsection shall be signed in person by the woman seeking the abortion, the abortion provider performing or attempting to perform the abortion, and a witness. (C) Retention of consent form The abortion provider performing or attempting to perform an abortion shall retain the signed Informed Consent Authorization form required under this subsection in the patient's medical file. (D) Requirement for data retention Paragraph (j)(2) of section 164.530 of title 45, Code of Federal Regulations, shall apply to the Informed Consent Authorization form required to be placed in a patient's medical file pursuant to subparagraph (C) in the same manner and to the same extent as such paragraph applies to documentation required by paragraph (j)(1) of such section. (4) Exceptions The requirements of this subsection shall not apply if, in reasonable medical judgment, compliance with paragraph (2) would pose a greater risk of— (A) the death of the pregnant woman; or (B) the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman. (b) Penalty for failure To comply (1) Civil penalty (A) Enforcement by Attorney General The Attorney General shall commence a civil action in an appropriate district court of the United States under this subsection against any abortion provider who knowingly commits a violation of subsection (a). (B) Penalty In a civil action under subparagraph (A), the court may, to vindicate the public interest, assess a civil penalty against the abortion provider in an amount— (i) not less than $100,000 and not more than $150,000, for each such violation that is adjudicated in the first proceeding against such abortion provider under this subsection; or (ii) not less than $150,001 and not more than $250,000, for each such violation that is adjudicated in a subsequent proceeding against such abortion provider under this subsection. (C) Notification Upon the assessment of a civil penalty under subparagraph (B), the Attorney General shall notify the appropriate State medical licensing authority. (D) No penalties for pregnant women A pregnant woman shall not be subject to any penalty under this section. (2) Private right of action (A) In general A woman or a parent of a minor upon whom an abortion has been performed in violation of subsection (a) may commence a civil action against the abortion provider for appropriate relief. (B) Appropriate relief Appropriate relief in a civil action under this paragraph includes— (i) objectively verifiable money damages for all injuries, psychological and physical, occasioned by the violation; (ii) statutory damages equal to 3 times the cost of the abortion; and (iii) punitive damages. (C) Attorney's 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 paragraph. (D) Attorney's fees for defendant If a defendant in a civil action under this paragraph prevails and the court finds that the plaintiff's suit was frivolous, the court shall award a reasonable attorney's fee in favor of the defendant against the plaintiff. (E) Awards against woman In any civil action under this paragraph, no damages or other monetary relief, and no attorney's fees except as provided under subparagraph (D), may be assessed against the woman upon whom the abortion was performed or attempted. (c) 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, implements, or continues in effect disclosure requirements regarding abortion or penalties for failure to comply with such requirements that are more extensive than those provided under the amendment made by this Act. (d) Rule of construction Nothing in this Act shall be construed to prohibit an abortion provider from presenting the information required under subsection (a) to a pregnant woman at the same time as acquiring informed consent for an abortion from such woman in accordance with State law, provided that the presentation of such information occurs at least 24 hours before the abortion. (e) Definitions In this section: (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) Abortion provider The term abortion provider means a person— (A) licensed to practice medicine and surgery or osteopathic medicine and surgery; or (B) otherwise legally authorized to perform an abortion. (3) Attempt 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. (4) Minor The term minor means an individual who has not attained the age of 18 years. (5) Perform The term perform , with respect to an abortion, includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion. (6) Reasonable medical judgment The term reasonable medical judgment means a medical judgment that would be made by a reasonably prudent abortion provider, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved. (7) 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, United States Code. (8) Woman The term woman means a female human being whether or not she has reached the age of majority.