[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3388 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3388

 To ensure that women seeking an abortion are informed of the medical 
      risks associated with the abortion procedure and the major 
developmental characteristics of the unborn child, before giving their 
                informed consent to receive an abortion.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 4, 2020

Mrs. Loeffler (for herself, Mrs. Blackburn, Ms. Ernst, Mr. Inhofe, Mr. 
Lankford, Mr. Braun, and Mr. Scott of Florida) introduced the following 
  bill; which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To ensure that women seeking an abortion are informed of the medical 
      risks associated with the abortion procedure and the major 
developmental characteristics of the unborn child, before giving their 
                informed consent to receive an abortion.

    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 ``Woman's Right To Know Act''.

SEC. 2. REQUIREMENT OF INFORMED CONSENT.

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