[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 356 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 356

 To ensure that women seeking an abortion are fully informed regarding 
              the pain experienced by their unborn child.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 25, 2005

 Mr. Smith of New Jersey (for himself, Mr. Davis of Tennessee, Mrs. Jo 
Ann Davis of Virginia, Mr. Cantor, Mr. McIntyre, Mr. Hyde, Mr. Stupak, 
  Mr. Wicker, Mrs. Musgrave, Mr. Blunt, Mr. Costello, Mr. Hayes, Mr. 
  Ferguson, Mr. Souder, Mr. Akin, Mr. Pitts, Mr. McCaul of Texas, Mr. 
   Beauprez, Mr. Shimkus, Mr. English of Pennsylvania, Mr. Rogers of 
Alabama, Mr. Cunningham, Mr. Flake, Mr. Burgess, Mr. Fortuno, Mr. Lewis 
of Kentucky, Mr. Goode, Mr. Green of Wisconsin, Mr. Jindal, Mr. Hunter, 
   Mr. Wamp, Mrs. Blackburn, Mr. LaHood, Mrs. Myrick, Mr. Burton of 
 Indiana, Mr. King of Iowa, Mr. Garrett of New Jersey, Mr. Alexander, 
 Mr. Kingston, Mr. Ryun of Kansas, Mr. Baker, Mr. Carter, Mr. Chabot, 
Mr. Wilson of South Carolina, Mr. Forbes, Mr. Sam Johnson of Texas, Mr. 
Shuster, Mr. McHenry, Mr. Hall, Mr. Miller of Florida, Mr. Putnam, Mr. 
 Kennedy of Minnesota, Mr. Bishop of Utah, Mr. Stearns, Mr. Lucas, Mr. 
   Doolittle, Mr. Sessions, Mr. Bachus, Mr. Chocola, Mr. Renzi, Mr. 
   Pickering, Mr. Davis of Kentucky, Mr. Goodlatte, Mr. Peterson of 
 Pennsylvania, Mr. Tancredo, Mr. Feeney, Mr. Conaway, Mrs. Drake, Mrs. 
 Northup, Mr. Westmoreland, Mr. Boozman, Mr. McCotter, Mr. Pombo, Mr. 
Neugebauer, Ms. Ros-Lehtinen, and Mr. Weldon of Florida) 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.

    Be it enacted by the Senate and House of Representatives 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 
2005''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) At least 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 unborn children 
        who have developed 20 weeks or more past fertilization who 
        undergo prenatal surgery.
            (4) There is substantial evidence that the abortion methods 
        most commonly used 20 weeks after fertilization cause 
        substantial pain to an unborn child, whether by dismemberment, 
        poisoning, penetrating or crushing the skull, or other methods. 
        Examples of abortion methods used 20 weeks after fertilization 
        include, but are not limited to the following:
                    (A) The Dilation and Evacuation (DE) 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 at random 
                with a long-toothed clamp. The fetal body parts are 
                then torn off of 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 unborn 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 delivery of the dead infant.
            (5) Expert testimony confirms that by 20 weeks after 
        fertilization an unborn child may experience substantial pain 
        even if the woman herself has received local analgesic or 
        general anesthesia.
            (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 interest in 
        reducing the number of events in which great pain is inflicted 
        on sentient creatures. Examples of this are laws governing 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 method 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:
                            ``(a) in the case of cattle, calves, 
                        horses, mules, sheep, swine, and other 
                        livestock, all animals are rendered insensible 
                        to pain by a single blow or gunshot or an 
                        electrical, chemical or other means that is 
                        rapid and effective, before being shackled, 
                        hoisted, thrown, cast, or cut; or
                            ``(b) by slaughtering in accordance with 
                        the ritual requirements of the Jewish faith or 
                        any other religious faith that prescribes a 
                        method of slaughter whereby the animal suffers 
                        loss of consciousness by anemia of the brain 
                        caused by the simultaneous and instantaneous 
                        severance of the carotid arteries with a sharp 
                        instrument and handling in connection with such 
                        slaughtering.''.
                    (B) Section 13(a)(3) of the Animal Welfare Act (7 
                U.S.C. 2143(a)(3)) sets the standards and certification 
                process for the humane handling, care, treatment, and 
                transportation of animals. This includes having 
                standards with respect to animals in research 
                facilities that include requirements--
                            ``(i) for animal care, treatment, and 
                        practices in experimental procedures to ensure 
                        that animal pain and distress are minimized, 
                        including adequate veterinary care with the 
                        appropriate use of anesthetic, analgesic, 
                        tranquilizing drugs, or euthanasia;
                            ``(ii) that the principal investigator 
                        considers alternatives to any procedure likely 
                        to produce pain to or distress in an 
                        experimental animal;
                            ``(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 
                                tranquilizers, anesthesia, analgesia, 
                                or euthanasia when scientifically 
                                necessary shall continue for only the 
                                necessary period of time;''.
                    (C) Section 495 of the Public Health Service 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 facilities as to the proper care and 
                treatment of animals, including the appropriate use of 
                tranquilizers, analgesics, and other drugs, except that 
                such guidelines may not prescribe methods of research. 
                Entities that conduct biomedical and behavioral 
                research with National Institutes of Health funds must 
                establish animal care committees which must conduct 
                reviews at least semi-annually and report to the 
                Director of such Institutes at least annually. If the 
                Director determines that an entity has not been 
                following the guidelines, the Director must give the 
                entity an opportunity to take corrective action, and, 
                if the entity does not, the Director must suspend or 
                revoke the grant or contract involved.

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 XXIX--UNBORN CHILD PAIN AWARENESS

``SEC. 2901. DEFINITIONS.

    ``In this title:
            ``(1) Abortion.--The term `abortion' means the intentional 
        use or prescription of any instrument, medicine, drug, or any 
        other substance or device to terminate the pregnancy of a woman 
        known to be pregnant with an intention other than to increase 
        the probability of a live birth, to preserve the life or health 
        of the child after live birth, or to remove a dead fetus.
            ``(2) Abortion provider.--The term `abortion provider' 
        means any person legally qualified to perform an abortion under 
        applicable Federal and State laws.
            ``(3) Pain-capable unborn child.--
                    ``(A) In general.--The term `pain-capable unborn 
                child' means an unborn child who has reached a probable 
                stage of development of 20 weeks after fertilization.
                    ``(B) Rule of construction.--Nothing in 
                subparagraph (A) shall be construed as a determination 
                or finding by Congress that pain may not in fact be 
                experienced by an unborn child at stages of development 
                prior to 20 weeks after fertilization.
            ``(4) Probable age of development.--The term `probable age 
        of development' means the duration of development after 
        fertilization of the unborn child at the time an abortion is 
        performed, as determined in the good faith judgment of the 
        abortion provider on the basis of examination of the unborn 
        child using ultrasound or other imaging technology, in addition 
        to information obtained by interviewing the pregnant woman.
            ``(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 female human being 
        who is capable of becoming pregnant, whether or not she has 
        reached the age of majority.

``SEC. 2902. REQUIREMENT OF INFORMED CONSENT.

    ``(a) Requirement of Compliance by Providers.--An abortion provider 
performing any abortion, of a pain-capable unborn child, that is in or 
affecting interstate commerce shall comply with the requirements of 
this title.
    ``(b) Provision of Consent.--
            ``(1) In general.--Before any part of an abortion involving 
        a pain-capable unborn child begins, the abortion provider or 
        his or her agent shall provide the pregnant woman involved, by 
        telephone or in person, with the information described in 
        paragraph (2).
            ``(2) Required information.--
                    ``(A) Oral statement.--
                            ``(i) In general.--An abortion provider or 
                        the provider's agent to whom paragraph (1) 
                        applies shall make the following oral statement 
                        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 
                        understand):
                        You are considering having an abortion of an 
                        unborn child who will have developed, at the 
                        time of the abortion, approximately __ weeks 
                        after fertilization. The Congress of the United 
                        States has determined that at this stage of 
                        development, an unborn child has the physical 
                        structures necessary to experience pain. There 
                        is substantial evidence that by this point, 
                        unborn children draw away from surgical 
                        instruments in a manner which in an infant or 
                        an adult would be interpreted as a response to 
                        pain. Congress finds that there is substantial 
                        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 
                        Awareness Act of 2004, you have the option of 
                        choosing to have anesthesia or other pain-
                        reducing drug or drugs administered directly to 
                        the pain-capable unborn child if you so desire. 
                        The purpose of administering such drug or drugs 
                        would be to reduce 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 
                        administering such a drug.
                            ``(ii) Description of risks.--After making 
                        the statement required under clause (i), the 
                        abortion provider may provide the woman 
                        involved with his or her best medical judgment 
                        on the risks of administering such anesthesia 
                        or analgesic, if any, and the costs associated 
                        therewith.
                            ``(iii) Administration of anesthesia.--If 
                        the abortion provider is not qualified or 
                        willing to administer the anesthesia or other 
                        pain-reducing drug in response to the request 
                        of a pregnant women after making the statement 
                        required under clause (i), the provider shall--
                                    ``(I) arrange for a qualified 
                                specialist to administer such 
                                anesthesia or drug; or
                                    ``(II) advise the pregnant woman--
                                            ``(aa) where she may obtain 
                                        such anesthesia or other pain 
                                        reducing drugs for the unborn 
                                        child in the course of an 
                                        abortion; or
                                            ``(bb) that the abortion 
                                        provider is unable to perform 
                                        the abortion if the woman 
                                        elects to receive anesthesia or 
                                        other pain-reducing drug for 
                                        her unborn child.
                            ``(iv) Rule of construction.--Nothing in 
                        this section may be construed 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 advisability 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 affirmative 
                        requirements of the law.
                    ``(B) Unborn child pain awareness brochure.--An 
                abortion provider to whom paragraph (1) applies shall 
                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 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 Awareness Decision Form (provided for under 
                subsection (c)) and obtain the appropriate signature of 
                the woman on such form.
    ``(c) Unborn Child Pain Awareness Brochure.--
            ``(1) Development.--Not later than 90 days after the date 
        of enactment of this title, the Secretary shall develop an 
        Unborn Child Pain Awareness Brochure. Such Brochure shall be 
        written in English and Spanish and shall contain the same 
        information as required under the statement under subsection 
        (b)(2)(A)(i), including greater detail on her option of having 
        a pain-reducing drug or drugs administered to the unborn child 
        to reduce the experience of pain by the unborn child during the 
        abortion. Such information shall be written in an objective and 
        nonjudgmental manner and be printed in a typeface large enough 
        to be clearly legible. The Brochure shall 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 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 additional plug-ins.
            ``(3) Presentation of brochure.--An abortion provider or 
        his or her agent must offer to provide a pregnant woman with 
        the Brochure, developed under paragraph (1), before any part of 
        an abortion of a pain-capable child begins--
                    ``(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) through a request to have such Brochure 
                mailed, by certified mail, 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 waiver form contained in the Unborn 
        Child Pain Awareness Decision Form.
            ``(5) Unborn child pain awareness decision form.--Not later 
        than 30 days after the date of enactment of this title, the 
        Secretary shall develop an Unborn Child Pain Awareness Decision 
        Form. To be valid, such Form shall--
                    ``(A) with respect to the pregnant woman--
                            ``(i) contain a statement that affirms that 
                        the woman has received or been offered all of 
                        the information required in subsection (b);
                            ``(ii) require the woman to explicitly 
                        either request or refuse the administration of 
                        pain-reducing drugs to the unborn child;
                            ``(iii) be signed by a pregnant woman prior 
                        to the performance of an abortion involving a 
                        pain-capable unborn child; and
                    ``(B) with respect to the abortion provider--
                            ``(i) contain a statement that the provider 
                        has provided the woman with all of the 
                        information required under subsection (b);
                            ``(ii) if applicable, contain a 
                        certification by the provider that an exception 
                        described in section 2903 applies and the 
                        detailed reasons for such certification; and
                            ``(iii) be signed by the provider prior to 
                        the performance of the abortion procedure.
            ``(6) Maintenance of records.--The Secretary shall 
        promulgate regulations relating to the period of time during 
        which copies of Forms under paragraph (5) shall be maintained 
        by abortion providers.

``SEC. 2903. EXCEPTION FOR MEDICAL EMERGENCIES.

    ``(a) In General.--The provisions of section 2902 shall not apply 
to an abortion provider in the case of a medical emergency.
    ``(b) Medical Emergency Defined.--
            ``(1) In general.--In subsection (a), the term `medical 
        emergency' means a condition which, in the reasonable medical 
        judgment of the abortion provider, so complicates the medical 
        condition of the pregnant woman that a delay in commencing an 
        abortion procedure would impose a serious risk of causing grave 
        and irreversible physical health damage entailing substantial 
        impairment of a major bodily function.
            ``(2) Reasonable medical judgment.--In paragraph (1), 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.
    ``(c) Certification.--
            ``(1) In general.--Upon a determination by an abortion 
        provider under subsection (a) that a medical emergency exists 
        with respect to a pregnant woman, such provider shall certify 
        the specific medical conditions that constitute the emergency.
            ``(2) False statements.--An abortion provider who willfully 
        falsifies a certification under paragraph (1) shall be subject 
        to all the penalties provided for under section 2904 for 
        failure to comply with this title.

``SEC. 2904. PENALTIES FOR FAILURE TO COMPLY.

    ``(a) In General.--An abortion provider who willfully fails to 
comply with the provisions of this title shall be subject to civil 
penalties in accordance with this section in an appropriate Federal 
court.
    ``(b) Commencement of Action.--The Attorney General, the Deputy 
Attorney General, the Associate Attorney General, or any Assistant 
Attorney General or United States Attorney who has been specifically 
designated by the Attorney General may commence a civil action under 
this section.
    ``(c) Certification Requirements.--At the time of the commencement 
of an action under this section, the Attorney General, the Deputy 
Attorney General, the Associate Attorney General, or any Assistant 
Attorney General or United States Attorney who has been specifically 
designated by the Attorney General to commence a civil action under 
this section, shall certify to the court involved that, at least 30 
calendar days prior to the filing of such action, the Attorney General, 
the Deputy Attorney General, the Associate Attorney General, or any 
Assistant Attorney General or United States Attorney involved--
            ``(1) has provided notice of the alleged violation of this 
        section, in writing, to the Governor or Chief Executive Officer 
        and Attorney General or Chief Legal Officer of the State or 
        political subdivision involved, as well as to the State medical 
        licensing board or other appropriate State agency; and
            ``(2) believes that such an action by the United States is 
        in the public interest and necessary to secure substantial 
        justice.
    ``(d) First Offense.--Upon a finding by a court that a respondent 
in an action commenced under this section has knowingly violated a 
provision of this title, the court shall notify the appropriate State 
medical licensing authority in order to effect the suspension of the 
respondent's medical license in accordance with the regulations and 
procedures promulgated under section 2905, or shall assess a civil 
penalty against the respondent in an amount not to exceed $100,000, or 
both.
    ``(e) Second Offense.--Upon a finding by a court that the 
respondent in an action commenced under this section has knowingly 
violated a provision 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 medical licensing 
authority in order to effect the revocation of the respondent's medical 
license in accordance with the regulations and procedures promulgated 
under section 2905, or shall assess a civil penalty against the 
respondent in an amount not to exceed $250,000, or both.
    ``(f) Hearing.--With respect to an action under this section, the 
appropriate State medical licensing authority shall be given 
notification of and an opportunity to be heard at a hearing to 
determine the penalty to be imposed under this section.
    ``(g) Private Right of Action.--A pregnant woman upon whom an 
abortion has been performed in violation of this title, or the parent 
or legal guardian of such a woman if she is an unemancipated minor, may 
commence a civil action against the abortion provider for any knowing 
or reckless violation of this title for actual and punitive damages.

``SEC. 2905. REGULATIONS.

    ``A State, and the medical licensing authority of the State, shall 
promulgate regulations and procedures for the revocation or suspension 
of the medical license of an abortion provider upon a finding by a 
court under section 2904 that the provider has violated a provision of 
this title. A State that fails to implement such procedures shall be 
subject to loss of funding under title XIX of the Social Security Act 
(42 U.S.C. 1396 et seq.).''.

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, implements, or continues in effect greater 
protections for unborn children from pain than the protections provided 
under this Act and the amendments made by this Act.
                                 <all>