[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2311 Placed on Calendar Senate (PCS)]

<DOC>





                                                       Calendar No. 294
115th CONGRESS
  2d Session
                                S. 2311

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 16, 2018

   Mr. Graham (for himself, Mr. Lankford, Mr. Blunt, Mr. Hatch, Mr. 
McCain, Mr. Daines, Mr. Scott, Mr. Grassley, Mr. Inhofe, Mr. Cruz, Mr. 
 Lee, Mr. Portman, Mr. Moran, Mr. Sasse, Mr. Boozman, Mr. Perdue, Mr. 
   Cassidy, Mr. Tillis, Mr. Cochran, Mrs. Ernst, Mr. McConnell, Mr. 
 Rounds, Mr. Roberts, Mr. Cotton, Mr. Wicker, Mr. Risch, Mr. Paul, Mr. 
 Cornyn, Mr. Burr, Mr. Barrasso, Mrs. Fischer, Mr. Isakson, Mr. Thune, 
Mr. Johnson, Mr. Shelby, Mr. Flake, Mr. Enzi, Mr. Young, Mr. Sullivan, 
Mr. Rubio, Mr. Kennedy, Mr. Corker, Mr. Crapo, Mr. Hoeven, Mr. Toomey, 
and Mr. Heller) introduced the following bill; which was read the first 
                                  time

                            January 17, 2018

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, to protect pain-capable unborn 
                   children, 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 ``Pain-Capable Unborn Child Protection 
Act''.

SEC. 2. LEGISLATIVE FINDINGS.

    Congress finds and declares the following:
            (1) Pain receptors (nociceptors) are present throughout the 
        unborn child's entire body and nerves link these receptors to 
        the brain's thalamus and subcortical plate by no later than 20 
        weeks after fertilization.
            (2) By 8 weeks after fertilization, the unborn child reacts 
        to touch. After 20 weeks, the unborn child reacts to stimuli 
        that would be recognized as painful if applied to an adult 
        human, for example, by recoiling.
            (3) In the unborn child, application of such painful 
        stimuli is associated with significant increases in stress 
        hormones known as the stress response.
            (4) Subjection to such painful stimuli is associated with 
        long-term harmful neurodevelopmental effects, such as altered 
        pain sensitivity and, possibly, emotional, behavioral, and 
        learning disabilities later in life.
            (5) For the purposes of surgery on unborn children, fetal 
        anesthesia is routinely administered and is associated with a 
        decrease in stress hormones compared to their level when 
        painful stimuli are applied without such anesthesia. In the 
        United States, surgery of this type is being performed by 20 
        weeks after fertilization and earlier in specialized units 
        affiliated with children's hospitals.
            (6) The position, asserted by some physicians, that the 
        unborn child is incapable of experiencing pain until a point 
        later in pregnancy than 20 weeks after fertilization 
        predominately rests on the assumption that the ability to 
        experience pain depends on the cerebral cortex and requires 
        nerve connections between the thalamus and the cortex. However, 
        recent medical research and analysis, especially since 2007, 
        provides strong evidence for the conclusion that a functioning 
        cortex is not necessary to experience pain.
            (7) Substantial evidence indicates that children born 
        missing the bulk of the cerebral cortex, those with 
        hydranencephaly, nevertheless experience pain.
            (8) In adult humans and in animals, stimulation or ablation 
        of the cerebral cortex does not alter pain perception, while 
        stimulation or ablation of the thalamus does.
            (9) Substantial evidence indicates that structures used for 
        pain processing in early development differ from those of 
        adults, using different neural elements available at specific 
        times during development, such as the subcortical plate, to 
        fulfill the role of pain processing.
            (10) The position, asserted by some commentators, that the 
        unborn child remains in a coma-like sleep state that precludes 
        the unborn child experiencing pain is inconsistent with the 
        documented reaction of unborn children to painful stimuli and 
        with the experience of fetal surgeons who have found it 
        necessary to sedate the unborn child with anesthesia to prevent 
        the unborn child from engaging in vigorous movement in reaction 
        to invasive surgery.
            (11) Consequently, there is substantial medical evidence 
        that an unborn child is capable of experiencing pain at least 
        by 20 weeks after fertilization, if not earlier.
            (12) It is the purpose of the Congress to assert a 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage at which substantial medical 
        evidence indicates that they are capable of feeling pain.
            (13) The compelling governmental interest in protecting the 
        lives of unborn children from the stage at which substantial 
        medical evidence indicates that they are capable of feeling 
        pain is intended to be separate from and independent of the 
        compelling governmental interest in protecting the lives of 
        unborn children from the stage of viability, and neither 
        governmental interest is intended to replace the other.

SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION.

    (a) In General.--Chapter 74 of title 18, United States Code, is 
amended by inserting after section 1531 the following:
``Sec. 1532. Pain-capable unborn child protection
    ``(a) Unlawful Conduct.--Notwithstanding any other provision of 
law, it shall be unlawful for any person to perform an abortion or 
attempt to do so, unless in conformity with the requirements set forth 
in subsection (b).
    ``(b) Requirements for Abortions.--
            ``(1) Assessment of the age of the unborn child.--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) Prohibition on performance of certain abortions.--
                    ``(A) Generally for unborn children 20 weeks or 
                older.--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) Exceptions.--Subparagraph (A) does not apply 
                if--
                            ``(i) in reasonable medical judgment, the 
                        abortion is necessary to save the life of a 
                        pregnant woman whose life is endangered by a 
                        physical disorder, physical illness, or 
                        physical injury, including a life-endangering 
                        physical condition caused by or arising from 
                        the pregnancy itself, but not including 
                        psychological or emotional conditions;
                            ``(ii) the pregnancy is the result of rape 
                        against an adult woman, and at least 48 hours 
                        prior to the abortion--
                                    ``(I) she has obtained counseling 
                                for the rape; or
                                    ``(II) she has obtained medical 
                                treatment for the rape or an injury 
                                related to the rape; or
                            ``(iii) the pregnancy is a result of rape 
                        against a minor or incest against a minor, and 
                        the rape or incest has been reported at any 
                        time prior to the abortion to either--
                                    ``(I) a government agency legally 
                                authorized to act on reports of child 
                                abuse; or
                                    ``(II) a law enforcement agency.
                    ``(C) Requirement as to manner of procedure 
                performed.--Notwithstanding the definitions of 
                `abortion' and `attempt an abortion' in this section, a 
                physician terminating or attempting to terminate a 
                pregnancy under an exception provided by subparagraph 
                (B) may do so only in the manner which, in reasonable 
                medical judgment, provides the best opportunity for the 
                unborn child to survive.
                    ``(D) Requirement that a physician trained in 
                neonatal resuscitation be present.--If, in reasonable 
                medical judgment, the pain-capable unborn child has the 
                potential to survive outside the womb, the physician 
                who performs or attempts an abortion under an exception 
                provided by subparagraph (B) shall ensure a second 
                physician trained in neonatal resuscitation is present 
                and prepared to provide care to the child consistent 
                with the requirements of subparagraph (E).
                    ``(E) Children born alive after attempted 
                abortions.--When a physician performs or attempts an 
                abortion in accordance with this section, and the child 
                is born alive, as defined in section 8 of title 1 
                (commonly known as the Born-Alive Infants Protection 
                Act of 2002), the following shall apply:
                            ``(i) Degree of care required.--Any health 
                        care practitioner present at the time shall 
                        humanely exercise the same degree of 
                        professional skill, care, and diligence to 
                        preserve the life and health of the child as a 
                        reasonably diligent and conscientious health 
                        care practitioner would render to a child born 
                        alive at the same gestational age in the course 
                        of a natural birth.
                            ``(ii) Immediate admission to a hospital.--
                        Following the care required to be rendered 
                        under clause (i), the child born alive shall be 
                        immediately transported and admitted to a 
                        hospital.
                            ``(iii) Mandatory reporting of 
                        violations.--A health care practitioner or any 
                        employee of a hospital, a physician's office, 
                        or an abortion clinic who has knowledge of a 
                        failure to comply with the requirements of this 
                        subparagraph must immediately report the 
                        failure to an appropriate State or Federal law 
                        enforcement agency or both.
                    ``(F) Documentation requirements.--
                            ``(i) Documentation pertaining to adults.--
                        A physician who performs or attempts to perform 
                        an abortion under an exception provided by 
                        subparagraph (B)(ii) shall, prior to the 
                        abortion, place in the patient medical file 
                        documentation from a hospital licensed by the 
                        State or operated under authority of a Federal 
                        agency, a medical clinic licensed by the State 
                        or operated under authority of a Federal 
                        agency, from a personal physician licensed by 
                        the State, a counselor licensed by the State, 
                        or a victim's rights advocate provided by a law 
                        enforcement agency that the adult woman seeking 
                        the abortion obtained medical treatment or 
                        counseling for the rape or an injury related to 
                        the rape.
                            ``(ii) Documentation pertaining to 
                        minors.--A physician who performs or attempts 
                        to perform an abortion under an exception 
                        provided by subparagraph (B)(iii) shall, prior 
                        to the abortion, place in the patient medical 
                        file documentation from a government agency 
                        legally authorized to act on reports of child 
                        abuse that the rape or incest was reported 
                        prior to the abortion; or, as an alternative, 
                        documentation from a law enforcement agency 
                        that the rape or incest was reported prior to 
                        the abortion.
                    ``(G) Informed consent.--
                            ``(i) Consent form required.--The physician 
                        who intends to perform or attempt to perform an 
                        abortion under the provisions of subparagraph 
                        (B) may not perform any part of the abortion 
                        procedure without first obtaining a signed 
                        Informed Consent Authorization form in 
                        accordance with this subparagraph.
                            ``(ii) Content of consent form.--The 
                        Informed Consent Authorization form shall be 
                        presented in person by the physician and shall 
                        consist of--
                                    ``(I) a statement by the physician 
                                indicating the probable post-
                                fertilization age of the pain-capable 
                                unborn child;
                                    ``(II) a statement that Federal law 
                                allows abortion after 20 weeks fetal 
                                age only if the mother's life is 
                                endangered by a physical disorder, 
                                physical illness, or physical injury, 
                                when the pregnancy was the result of 
                                rape, or an act of incest against a 
                                minor;
                                    ``(III) a statement that the 
                                abortion must be performed by the 
                                method most likely to allow the child 
                                to be born alive unless this would 
                                cause significant risk to the mother;
                                    ``(IV) a statement that in any case 
                                in which an abortion procedure results 
                                in a child born alive, Federal law 
                                requires that child to be given every 
                                form of medical assistance that is 
                                provided to children spontaneously born 
                                prematurely, including transportation 
                                and admittance to a hospital;
                                    ``(V) a statement that these 
                                requirements are binding upon the 
                                physician and all other medical 
                                personnel who are subject to criminal 
                                and civil penalties and that a woman on 
                                whom an abortion has been performed may 
                                take civil action if these requirements 
                                are not followed; and
                                    ``(VI) affirmation that each signer 
                                has filled out the informed consent 
                                form to the best of their knowledge and 
                                understands the information contained 
                                in the form.
                            ``(iii) Signatories required.--The Informed 
                        Consent Authorization form shall be signed in 
                        person by the woman seeking the abortion, the 
                        physician performing or attempting to perform 
                        the abortion, and a witness.
                            ``(iv) Retention of consent form.--The 
                        physician performing or attempting to perform 
                        an abortion must retain the signed informed 
                        consent form in the patient's medical file.
                    ``(H) Requirement for data retention.--Paragraph 
                (j)(2) of section 164.530 of title 45, Code of Federal 
                Regulations, shall apply to documentation required to 
                be placed in a patient's medical file pursuant to 
                subparagraph (F) of subsection (b)(2) and a consent 
                form required to be retained in a patient's medical 
                file pursuant to subparagraph (G) of such subsection in 
                the same manner and to the same extent as such 
                paragraph applies to documentation required by 
                paragraph (j)(1) of such section.
                    ``(I) Additional exceptions and requirements.--
                            ``(i) In cases of risk of death or major 
                        injury to the mother.--Subparagraphs (C), (D), 
                        and (G) shall not apply if, in reasonable 
                        medical judgment, compliance with such 
                        paragraphs 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.
                            ``(ii) Exclusion of certain facilities.--
                        Notwithstanding the definitions of the terms 
                        `medical treatment' and `counseling' in 
                        subsection (g), the counseling or medical 
                        treatment described in subparagraph (B)(ii) may 
                        not be provided by a facility that performs 
                        abortions (unless that facility is a hospital).
                            ``(iii) Rule of construction in cases of 
                        reports to law enforcement.--The requirements 
                        of subparagraph (B)(ii) do not apply if the 
                        rape has been reported at any time prior to the 
                        abortion to a law enforcement agency or 
                        Department of Defense victim assistance 
                        personnel.
                            ``(iv) Compliance with certain state 
                        laws.--
                                    ``(I) State laws regarding 
                                reporting of rape and incest.--The 
                                physician who performs or attempts to 
                                perform an abortion under an exception 
                                provided by subparagraph (B) shall 
                                comply with such applicable State laws 
                                that are in effect as the State's 
                                Attorney General may designate, 
                                regarding reporting requirements in 
                                cases of rape or incest.
                                    ``(II) State laws regarding 
                                parental involvement.--The physician 
                                who intends to perform an abortion on a 
                                minor under an exception provided by 
                                subparagraph (B) shall comply with any 
                                applicable State laws requiring 
                                parental involvement in a minor's 
                                decision to have an abortion.
    ``(c) Criminal Penalty.--Whoever violates subsection (a) shall be 
fined under this title or imprisoned for not more than 5 years, or 
both.
    ``(d) Bar to Prosecution.--A woman upon whom an abortion in 
violation of subsection (a) is performed or attempted may not be 
prosecuted under, or for a conspiracy to violate, subsection (a), or 
for an offense under section 2, 3, or 4 of this title based on such a 
violation.
    ``(e) Civil Remedies.--
            ``(1) Civil action by a woman on whom an abortion is 
        performed.--A woman upon whom an abortion has been performed or 
        attempted in violation of any provision of this section may, in 
        a civil action against any person who committed the violation, 
        obtain appropriate relief.
            ``(2) Civil action by a parent of a minor on whom an 
        abortion is performed.--A parent of a minor upon whom an 
        abortion has been performed or attempted under an exception 
        provided for in subsection (b)(2)(B), and that was performed in 
        violation of any provision of this section may, in a civil 
        action against any person who committed the violation obtain 
        appropriate relief, unless the pregnancy resulted from the 
        plaintiff's criminal conduct.
            ``(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;
                    ``(B) statutory damages equal to three times the 
                cost of the abortion; and
                    ``(C) punitive damages.
            ``(4) 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.
            ``(5) Attorneys fees for defendant.--If a defendant in a 
        civil action under this subsection 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.
            ``(6) Awards against woman.--Except under paragraph (5), 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) Data Collection.--
            ``(1) Data submissions.--Any physician who performs or 
        attempts an abortion described in subsection (b)(2)(B) shall 
        annually submit a summary of all such abortions to the National 
        Center for Health Statistics (hereinafter referred to as the 
        `Center') not later than 60 days after the end of the calendar 
        year in which the abortion was performed or attempted.
            ``(2) Contents of summary.--The summary shall include the 
        number of abortions performed or attempted on an unborn child 
        who had a post-fertilization age of 20 weeks or more and 
        specify the following for each abortion under subsection 
        (b)(2)(B):
                    ``(A) the probable post-fertilization age of the 
                unborn child;
                    ``(B) the method used to carry out the abortion;
                    ``(C) the location where the abortion was 
                conducted;
                    ``(D) the exception under subsection (b)(2)(B) 
                under which the abortion was conducted; and
                    ``(E) any incident of live birth resulting from the 
                abortion.
            ``(3) Exclusions from data submissions.--A summary required 
        under this subsection shall not contain any information 
        identifying the woman whose pregnancy was terminated and shall 
        be submitted consistent with the Health Insurance Portability 
        and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).
            ``(4) Public report.--The Center shall annually issue a 
        public report providing statistics by State for the previous 
        year compiled from all of the summaries made to the Center 
        under this subsection. The Center 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. The 
        annual report shall be issued by July 1 of the calendar year 
        following the year in which the abortions were performed or 
        attempted.
    ``(g) Definitions.--In this section the following definitions 
apply:
            ``(1) Abortion.--The term `abortion' means the use or 
        prescription of any instrument, medicine, drug, or any other 
        substance or device--
                    ``(A) to intentionally kill the unborn child of a 
                woman known to be pregnant; or
                    ``(B) to intentionally terminate the pregnancy of a 
                woman known to be pregnant, with an intention other 
                than--
                            ``(i) after viability to produce a live 
                        birth and preserve the life and health of the 
                        child born alive; or
                            ``(ii) to remove a dead unborn child.
            ``(2) Attempt.--The term `attempt', with respect to an 
        abortion, means conduct that, under the circumstances as the 
        actor believes them to be, constitutes a substantial step in a 
        course of conduct planned to culminate in performing an 
        abortion.
            ``(3) Counseling.--The term `counseling' means counseling 
        provided by a counselor licensed by the State, or a victims 
        rights advocate provided by a law enforcement agency.
            ``(4) Facility.--The term `facility' means any medical or 
        counseling group, center or clinic and includes the entire 
        legal entity, including any entity that controls, is controlled 
        by, or is under common control with such facility.
            ``(5) Fertilization.--The term `fertilization' means the 
        fusion of human spermatozoon with a human ovum.
            ``(6) Medical treatment.--The term `medical treatment' 
        means treatment provided at a hospital licensed by the State or 
        operated under authority of a Federal agency, at a medical 
        clinic licensed by the State or operated under authority of a 
        Federal agency, or from a personal physician licensed by the 
        State.
            ``(7) Minor.--The term `minor' means an individual who has 
        not attained the age of 18 years.
            ``(8) 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.
            ``(9) Physician.--The term `physician' means a person 
        licensed to practice medicine and surgery or osteopathic 
        medicine and surgery, or otherwise legally authorized to 
        perform an abortion.
            ``(10) 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.
            ``(11) 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 post-fertilization age of the 
        unborn child at the time the abortion is planned to be 
        performed or induced.
            ``(12) 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.
            ``(13) 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.
            ``(14) Woman.--The term `woman' means a female human being 
        whether or not she has reached the age of majority.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 74 of title 18, United States Code, is amended by adding at the 
end the following new item:

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

``74.  Abortions............................................    1531''.
                                                       Calendar No. 294

115th CONGRESS

  2d Session

                                S. 2311

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                            January 17, 2018

            Read the second time and placed on the calendar