[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2103 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 2103

 To amend title 18, United States Code, to protect pain-capable unborn 
     children in the District of Columbia, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 13, 2012

    Mr. Lee introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, to protect pain-capable unborn 
     children in the District of Columbia, and for other purposes.

    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 ``District of Columbia 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.
            (6) The position, asserted by some medical experts, 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.
            (14) The District Council of the District of Columbia, 
        operating under authority delegated by Congress, repealed all 
        limitations on abortion at any stage of pregnancy, effective 
        April 29, 2004.
            (15) Article I, section 8 of the Constitution of the United 
        States of America provides that the Congress shall ``exercise 
        exclusive Legislation in all Cases whatsoever'' over the 
        District established as the seat of government of the United 
        States, now known as the District of Columbia. The 
        constitutional responsibility for the protection of pain-
        capable unborn children within the Federal District resides 
        with the Congress.

SEC. 3. DISTRICT OF COLUMBIA 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. District of Columbia pain-capable unborn child protection
    ``(a) Unlawful Conduct.--Notwithstanding any other provision of 
law, including any legislation of the District of Columbia under 
authority delegated by Congress, it shall be unlawful for any person to 
perform an abortion within the District of Columbia, 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, 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 any 
        claim or diagnosis that the woman will engage in conduct which 
        she intends to result in her death.
            ``(C) A physician terminating or attempting to terminate a 
        pregnancy under the 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 2 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 based on such a violation.
    ``(e) Civil Remedies.--
            ``(1) Civil action by woman on whom the abortion is 
        performed.--A woman upon whom an abortion has been performed or 
        attempted in violation of subsection (a), may in a civil action 
        against any person who engaged in the violation obtain 
        appropriate relief.
            ``(2) Civil action by relatives.--The father of an unborn 
        child who is the subject of an abortion performed or attempted 
        in violation of subsection (a), or a maternal grandparent of 
        the unborn child if the pregnant woman is an unemancipated 
        minor, may in a civil action against any person who engaged in 
        the violation, obtain appropriate relief, unless the pregnancy 
        resulted from the plaintiff's criminal conduct or the plaintiff 
        consented to the abortion.
            ``(3) Appropriate relief.--Appropriate relief in a civil 
        action under this subsection includes--
                    ``(A) objectively verifiable money damages for all 
                injuries, psychological and physical, occasioned by the 
                violation of this section;
                    ``(B) statutory damages equal to three times the 
                cost of the abortion; and
                    ``(C) punitive damages.
            ``(4) Injunctive relief.--
                    ``(A) In general.--A qualified plaintiff may in a 
                civil action obtain injunctive relief to prevent an 
                abortion provider from performing or attempting further 
                abortions in violation of this section.
                    ``(B) Definition.--In this paragraph the term 
                `qualified plaintiff' means--
                            ``(i) a woman upon whom an abortion is 
                        performed or attempted in violation of this 
                        section;
                            ``(ii) any person who is the spouse, 
                        parent, sibling or guardian of, or a current or 
                        former licensed health care provider of, that 
                        woman; or
                            ``(iii) the United States Attorney for the 
                        District of Columbia.
            ``(5) 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.
            ``(6) Attorneys fees for defendant.--If a defendant in a 
        civil action under this section prevails and the court finds 
        that the plaintiff's suit was frivolous and brought in bad 
        faith, the court shall also render judgment for a reasonable 
        attorney's fee in favor of the defendant against the plaintiff.
            ``(7) Awards against woman.--Except under paragraph (6), in 
        a civil action under this subsection, no damages, attorney's 
        fee or other monetary relief may be assessed against the woman 
        upon whom the abortion was performed or attempted.
    ``(f) Protection of Privacy in Court Proceedings.--
            ``(1) In general.--Except to the extent the Constitution or 
        other similarly compelling reason requires, in every civil or 
        criminal action under this section, the court shall make such 
        orders as are necessary to protect the anonymity of any woman 
        upon whom an abortion has been performed or attempted if she 
        does not give her written consent to such disclosure. Such 
        orders may be made upon motion, but shall be made sua sponte if 
        not otherwise sought by a party.
            ``(2) Orders to parties, witnesses, and counsel.--The court 
        shall issue appropriate orders under paragraph (1) to the 
        parties, witnesses, and counsel and shall direct the sealing of 
        the record and exclusion of individuals from courtrooms or 
        hearing rooms to the extent necessary to safeguard her identity 
        from public disclosure. Each such order shall be accompanied by 
        specific written findings explaining why the anonymity of the 
        woman must be preserved from public disclosure, why the order 
        is essential to that end, how the order is narrowly tailored to 
        serve that interest, and why no reasonable less restrictive 
        alternative exists.
            ``(3) Pseudonym required.--In the absence of written 
        consent of the woman upon whom an abortion has been performed 
        or attempted, any party, other than a public official, who 
        brings an action under paragraphs (1), (2), or (4) of 
        subsection (e) shall do so under a pseudonym.
            ``(4) Limitation.--This subsection shall not be construed 
        to conceal the identity of the plaintiff or of witnesses from 
        the defendant or from attorneys for the defendant.
    ``(g) Reporting.--
            ``(1) Duty to report.--Any physician who performs or 
        attempts an abortion within the District of Columbia shall 
        report that abortion to the relevant District of Columbia 
        health agency (hereinafter in this section referred to as the 
        `health agency') on a schedule and in accordance with forms and 
        regulations prescribed by the health agency.
            ``(2) Contents of report.--The report shall include the 
        following:
                    ``(A) Post-fertilization age.--For the 
                determination of probable postfertilization age of the 
                unborn child, whether ultrasound was employed in making 
                the determination, and the week of probable post-
                fertilization age that was determined.
                    ``(B) Method of abortion.--Which of the following 
                methods or combination of methods was employed:
                            ``(i) Dilation, dismemberment, and 
                        evacuation of fetal parts also known as 
                        `dilation and evacuation'.
                            ``(ii) Intra-amniotic instillation of 
                        saline, urea, or other substance (specify 
                        substance) to kill the unborn child, followed 
                        by induction of labor.
                            ``(iii) Intracardiac or other intra-fetal 
                        injection of digoxin, potassium chloride, or 
                        other substance (specify substance) intended to 
                        kill the unborn child, followed by induction of 
                        labor.
                            ``(iv) Partial-birth abortion, as defined 
                        in section 1531.
                            ``(v) Manual vacuum aspiration without 
                        other methods.
                            ``(vi) Electrical vacuum aspiration without 
                        other methods.
                            ``(vii) Abortion induced by use of 
                        mifepristone in combination with misoprostol; 
                        or
                            ``(viii) if none of the methods described 
                        in the other clauses of this subparagraph was 
                        employed, whatever method was employed.
                    ``(C) Age of woman.--The age or approximate age of 
                the pregnant woman.
                    ``(D) Compliance with requirements for exception.--
                The facts relied upon and the basis for any 
                determinations required to establish compliance with 
                the requirements for the exception provided by 
                subsection (b)(2).
            ``(3) Exclusions from reports.--
                    ``(A) A report required under this subsection shall 
                not contain the name or the address of the woman whose 
                pregnancy was terminated, nor shall the report contain 
                any other information identifying the woman.
                    ``(B) Such report shall contain a unique Medical 
                Record Number, to enable matching the report to the 
                woman's medical records.
                    ``(C) Such reports shall be maintained in strict 
                confidence by the health agency, shall not be available 
                for public inspection, and shall not be made available 
                except--
                            ``(i) to the United States Attorney for the 
                        District of Columbia or that Attorney's 
                        delegate for a criminal investigation or a 
                        civil investigation of conduct that may violate 
                        this section; or
                            ``(ii) pursuant to court order in an action 
                        under subsection (e).
            ``(4) Public report.--Not later than June 30 of each year 
        beginning after the date of enactment of this paragraph, the 
        health agency shall issue a public report providing statistics 
        for the previous calendar year compiled from all of the reports 
        made to the health agency under this subsection for that year 
        for each of the items listed in paragraph (2). The report shall 
        also provide the statistics for all previous calendar years 
        during which this section was in effect, adjusted to reflect 
        any additional information from late or corrected reports. The 
        health agency shall take care to ensure that none of the 
        information included in the public reports could reasonably 
        lead to the identification of any pregnant woman upon whom an 
        abortion was performed or attempted.
            ``(5) Failure to submit report.--
                    ``(A) Late fee.--Any physician who fails to submit 
                a report not later than 30 days after the date that 
                report is due shall be subject to a late fee of $1,000 
                for each additional 30-day period or portion of a 30-
                day period the report is overdue.
                    ``(B) Court order to comply.--A court of competent 
                jurisdiction may, in a civil action commenced by the 
                health agency, direct any physician whose report under 
                this subsection is still not filed as required, or is 
                incomplete, more than 180 days after the date the 
                report was due, to comply with the requirements of this 
                section under penalty of civil contempt.
                    ``(C) Disciplinary action.--Intentional or reckless 
                failure by any physician to comply with any requirement 
                of this subsection, other than late filing of a report, 
                constitutes sufficient cause for any disciplinary 
                sanction which the Health Professional Licensing 
                Administration of the District of Columbia determines 
                is appropriate, including suspension or revocation of 
                any license granted by the Administration.
            ``(6) Forms and regulations.--Not later than 90 days after 
        the date of the enactment of this section, the health agency 
        shall prescribe forms and regulations to assist in compliance 
        with this subsection.
            ``(7) Effective date of requirement.--Paragraph (1) of this 
        subsection takes effect with respect to all abortions performed 
        on and after the first day of the first calendar month 
        beginning after the effective date of such forms and 
        regulations.
    ``(h) 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 otherwise intentionally 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 unborn child who 
                died as the result of natural causes in utero, 
                accidental trauma, or a criminal assault on the 
                pregnant woman or her unborn child, and which causes 
                the premature termination of the pregnancy.
            ``(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 in the District of Columbia.
            ``(3) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
            ``(4) Health agency.--The term `health agency' means the 
        Department of Health of the District of Columbia or any 
        successor agency responsible for the regulation of medical 
        practice.
            ``(5) 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.
            ``(6) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise licensed to legally perform 
        an abortion.
            ``(7) 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.
            ``(8) 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.
            ``(9) 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.
            ``(10) 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.
            ``(11) Unemancipated minor.--The term `unemancipated minor' 
        means a minor who is subject to the control, authority, and 
        supervision of a parent or guardian, as determined under the 
        law of the State in which the minor resides.
            ``(12) 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. District of Columbia 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''.
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