[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 314 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 314

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 10, 2011

   Mr. Johanns (for himself, Mr. Boozman, Mr. Burr, Mr. Cochran, Mr. 
 Crapo, Mr. Ensign, Mr. Enzi, Mr. Graham, Mr. Grassley, Mr. Hatch, Mr. 
 Inhofe, Mr. Isakson, Mr. Kyl, Mr. Moran, Mr. Risch, Mr. Roberts, Mr. 
Thune, Mr. Vitter, and Mr. Wicker) 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 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 
2011''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) At least by 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 after fertilization who 
        undergo prenatal surgery.
            (4) There is substantial evidence that the abortion methods 
        most commonly used 20 weeks or more 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 or more after 
        fertilization include, but are not limited to the following:
                    (A) The dilation and evacuation (D and E) 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 with a long-
                toothed clamp. The fetal body parts are then torn from 
                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, and as 
                further defined in section 1531 of title 18, United 
                States Code.
            (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 
        preventing or reducing the infliction of pain 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--
                            ``(i) 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
                            ``(ii) 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; and
                            (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 semiannually 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.
            (8) There is a valid Federal Government interest in 
        preventing harm to developing human life at all stages. 
        Examples of this include regulations protecting fetal human 
        subjects from risks of ``harm or discomfort'' in federally 
        funded biomedical research, 45 C.F.R. 102(i) and 45 C.F.R. 
        46.201 et seq.

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 XXXIV--UNBORN CHILD PAIN AWARENESS

``SEC. 3401. 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 or method to terminate the life of an 
        unborn child, or to terminate the pregnancy of a woman known to 
        be pregnant with an intention other than--
                    ``(A) to produce a live birth and preserve the life 
                and health of the child after live birth; or
                    ``(B) to remove an ectopic pregnancy, or to remove 
                a dead unborn child who died as the result of a 
                spontaneous abortion, accidental trauma or a criminal 
                assault on the pregnant female or her unborn child.
            ``(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 or more 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 or more 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 using generally accepted medical criteria and 
        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 
        whether or not she has reached the age of majority.
            ``(7) Unemancipated minor.--The term `unemancipated minor' 
        means an individual who is not older than 18 years and who is 
        not emancipated under State law.

``SEC. 3402. REQUIREMENT OF INFORMED CONSENT.

    ``(a) Requirement of Compliance by Providers.--Any abortion 
provider in or affecting interstate or foreign commerce, who knowingly 
performs any abortion of a pain-capable unborn child, 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). It may not be provided by a tape recording, but 
        must be provided in a fashion that permits the woman to ask 
        questions of and receive answers from the abortion provider or 
        his agent. (In the case of the Unborn Child Pain Awareness 
        Brochure, it may be provided pursuant to subsection (c)(2) or 
        (c)(3)).
            ``(2) Required information.--
                    ``(A) In general.--An abortion provider or the 
                provider's agent to whom paragraph (1) applies shall 
                provide the following information 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):
                            ``(i) Age of unborn baby.--The probable age 
                        of development of the unborn baby based on the 
                        number of weeks since fertilization.
                            ``(ii) Unborn child pain awareness 
                        brochure.--An abortion provider to whom 
                        paragraph (1) applies must 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.
                            ``(iii) Use of pain-preventing drugs.--
                        Drugs administered to the mother may not 
                        prevent the unborn child from feeling pain, but 
                        in some cases, anesthesia or other pain-
                        reducing drug or drugs can be administered 
                        directly to the unborn child.
                            ``(iv) Description of risks.--After 
                        providing the information required under 
                        clauses (i), (ii), and (iii) the abortion 
                        provider shall provide the woman involved with 
                        his or her best medical judgment on the risks, 
                        if any, of administering such anesthesia or 
                        analgesic, and the costs associated therewith.
                            ``(v) Administration of anesthesia.--If the 
                        abortion provider is not qualified or willing 
                        to administer the anesthesia or other pain-
                        reducing drug to an unborn child in response to 
                        a request from a pregnant women, 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 
                                        requires that she receive 
                                        anesthesia or other pain-
                                        reducing drug for her unborn 
                                        child.
                            ``(vi) 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 (d)) and 
                        obtain the appropriate signature of the woman 
                        on such form.
                            ``(vii) 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 (d)) 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--
                    ``(A) be written in English and Spanish;
                    ``(B) contain the following text: `Your doctor has 
                determined that, in his or her best medial judgment, 
                your unborn child is at least 20 weeks old. There is a 
                significant body of evidence that unborn children at 20 
                weeks after fertilization have the physical structures 
                necessary to experience pain. There is substantial 
                evidence that at least 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. 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 2011, you have a right to know 
                that there is evidence that the process of being killed 
                in an abortion will cause your unborn child pain. You 
                may request that anesthesia or other pain-reducing drug 
                or drugs are 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.';
                    ``(C) contain 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;
                    ``(D) be written in an objective and nonjudgmental 
                manner and be printed in a typeface large enough to be 
                clearly legible; and
                    ``(E) 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 provide a pregnant woman with the 
        Brochure, developed under paragraph (1), before any part of an 
        abortion of a pain-capable child begins. The brochure may be 
        provided--
                    ``(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) by certified mail, mailed 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.
    ``(d) 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--
            ``(1) with respect to the pregnant woman--
                    ``(A) contain a statement that affirms that the 
                woman has received or been offered all of the 
                information required in subsection (b);
                    ``(B) affirm that the woman has read the following 
                statement: `You are considering having an abortion of 
                an unborn child who will have developed, at the time of 
                the abortion, approximately __ weeks after 
                fertilization. There is a significant body of evidence 
                that unborn children at 20 weeks after fertilization 
                have the physical structures necessary to experience 
                pain. There is substantial evidence that at least 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. 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 2011, 
                you have a right to know that there is evidence that 
                the process of being killed in an abortion will cause 
                your unborn child pain. You may request that anesthesia 
                or other pain-reducing drug or drugs are 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.';
                    ``(C) require the woman to explicitly either 
                request or refuse the administration of pain-reducing 
                drugs to the unborn child; and
                    ``(D) be signed by a pregnant woman prior to the 
                performance of an abortion involving a pain-capable 
                unborn child; and
            ``(2) with respect to the abortion provider--
                    ``(A) contain a statement that the provider has 
                provided the woman with all of the information required 
                under subsection (b);
                    ``(B) if applicable, contain a certification by the 
                provider that an exception described in section 3403 
                applies and the detailed reasons for such 
                certification; and
                    ``(C) be signed by the provider prior to the 
                performance of the abortion procedure.
    ``(e) Maintenance of Records.--The Secretary shall promulgate 
regulations relating to the period of time during which copies of forms 
under subsection (d) shall be maintained by abortion providers.

``SEC. 3403. EXCEPTION TO SAVE THE LIFE OF THE MOTHER.

    ``The provisions of section 3402 shall not apply to an abortion 
provider in the case that the abortion is necessary to save the life of 
a mother 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.

``SEC. 3404. 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 of the United 
States may commence a civil action under this section.
    ``(c) 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 and shall assess a civil penalty against 
the respondent in an amount not to exceed $100,000.
    ``(d) Second and Subsequent Offenses.--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 and shall assess a civil penalty against the 
respondent in an amount not to exceed $250,000.
    ``(e) 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. 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.

SEC. 5. SEVERABILITY.

    The provisions of this Act shall be severable. If any provision of 
this Act, or any application thereof, is found unconstitutional, that 
finding shall not affect any provision or application of the Act not so 
adjudicated.
                                 <all>