,i #aafth ,,congress #b;d ,session ,h4 ,r4 #hici ,,in ,,the ,,house ,,of ,,representatives ,december #aj1 #bjbj,ms4 ,gabbard introduced the following bill2 which was referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ah1 ,united ,states ,code1 to protect pain-capable unborn children1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,late ,term ,abortion ,ban ,act4 #b4 ,legislative findings and declaration of constitutional authority for enactment ,congress finds and declares the following3 7#a7 ,pain receptors 7nociceptors7 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 #bj weeks after fertilization4 7#b7 ,by #h weeks after fertilization1 the unborn child reacts to touch4 ,after #bj weeks1 the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human1 for example1 by recoiling4 7#c7 ,in the unborn child1 application of such painful stimuli is associated with significant increases in stress hormones known as the stress response4 7#d7 ,subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects1 such as altered pain sensitivity and1 possibly1 emotional1 behavioral1 and learning disabilities later in life4 7#e7 ,for the purposes of surgery on unborn children1 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 anesthesia4 ,in the ,united ,states1 surgery of this type is being performed by #bj weeks after fertilization and earlier in specialized units affiliated with children's hospitals4 7#f7 ,the position1 asserted by some physicians1 that the unborn child is incapable of experiencing pain until a point later in pregnancy than #bj 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 cortex4 ,however1 recent medical research and analysis1 especially since #bjjg1 provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain4 7#g7 ,substantial evidence indicates that children born missing the bulk of the cerebral cortex1 those with hydranencephaly1 nevertheless experience pain4 7#h7 ,in adult humans and in animals1 stimulation or ablation of the cerebral cortex does not alter pain perception1 while stimulation or ablation of the thalamus does4 7#i7 ,substantial evidence indicates that structures used for pain processing in early development differ from those of adults1 using different neural elements available at specific times during development1 such as the subcortical plate1 to fulfill the role of pain processing4 7#aj7 ,the position1 asserted by some commentators1 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 surgery4 7#aa7 ,consequently1 there is substantial medical evidence that an unborn child is capable of experiencing pain at least by #bj weeks after fertilization1 if not earlier4 7#ab7 ,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 pain4 7#ac7 ,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 viability1 and neither governmental interest is intended to replace the other4 7#ad7 ,congress has authority to extend protection to pain-capable unborn children under the ,supreme ,court's ,commerce ,clause precedents and under the ,constitution's grants of powers to ,congress under the ,equal ,protection1 ,due ,process1 and ,enforcement ,clauses of the ,fourteenth ,amendment4 #c4 ,pain-capable unborn child protection 7a7 ,in ,general ,chapter #gd of title #ah1 ,united ,states ,code1 is amended by inserting after section #aeca the following3 #aecb4 ,pain-capable unborn child protection 7a7 ,unlawful conduct ,notwithstanding any other provision of law1 it shall be unlawful for any person to perform an abortion or attempt to do so1 unless in conformity with the requirements set forth in subsection 7b74 7b7 ,requirements for abortions 7#a7 ,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 physician4 ,in making such a determination1 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 physician1 knowledgeable about the case and the medical conditions involved1 would consider necessary to make an accurate determination of post-fertilization age4 7#b7 ,prohibition on performance of certain abortions 7,a7 ,generally for unborn children #bj weeks or older ,except as provided in subparagraph 7,b71 the abortion shall not be performed or attempted1 if the probable post-fertilization age1 as determined under paragraph 7#a71 of the unborn child is #bj weeks or greater4 7,b7 ,exceptions ,subparagraph 7,a7 does not apply if-- 7i7 in reasonable medical judgment1 the abortion is necessary to prevent the loss of life or severe injury 7the substantial and irreversible physical impairment of a major bodily function1 not including psychological or emotional conditions7 of a pregnant woman endangered by a physical disorder1 physical illness1 or physical injury1 including a life-endangering physical condition caused by or arising from the pregnancy itself1 but not including psychological or emotional conditions2 7ii7 the pregnancy is the result of rape against an adult woman2 or 7iii7 the pregnancy is a result of rape against a minor or incest against a minor4 7,c7 ,requirement as to manner of procedure performed ,notwithstanding the definitions of abortion and attempt an abortion in this section1 a physician terminating or attempting to terminate a pregnancy under an exception provided by subparagraph 7,b7 may do so only in the manner which1 in reasonable medical judgment1 provides the best opportunity for the unborn child to survive4 7,d7 ,requirement that a physician trained in neonatal resuscitation be present ,if1 in reasonable medical judgment1 the unborn child has the potential to survive outside the womb1 the physician who performs or attempts an abortion under an exception provided by subparagraph 7,b7 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 7,e74 7,e7 ,children born alive after attempted abortions ,when a physician performs or attempts an abortion in accordance with this section1 and the child is born alive1 the following shall apply3 7i7 ,degree of care required ,any health care practitioner present at the time shall humanely exercise the same degree of professional skill1 care1 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 birth4 7ii7 ,mandatory reporting of violations ,a health care practitioner or employee of a hospital1 a physician's office1 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 both4 7,f7 ,informed consent 7i7 ,consent form required ,the physician who intends to perform or attempt to perform an abortion under the provisions of subparagraph 7,b7 may not perform any part of the abortion procedure without first obtaining a signed ,informed ,consent ,authorization form in accordance with this subparagraph4 7ii7 ,content of consent form ,the ,informed ,consent ,authorization form shall be presented in person by the physician and shall consist of-- 7,i7 a statement by the physician indicating the probable post-fertilization age of the unborn child2 7,,ii7 a statement that ,federal law allows abortion after #bj weeks fetal age only if the mother faces severe injury 7the substantial and irreversible physical impairment of a major bodily function1 not including psychological or emotional conditions7 or her life is endangered by a physical disorder1 physical illness1 or physical injury1 when the pregnancy was the result of rape1 or an act of incest against a minor2 7,,iii7 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 mother2 7,,iv7 a statement that in any case in which an abortion procedure results in a child born alive1 ,federal law requires that child to be given every form of medical assistance that is provided to children spontaneously born prematurely1 including transportation and admittance to a hospital2 7,v7 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 followed2 and 7,,vi7 affirmation that each signer has filled out the informed consent form to the best of their knowledge and understands the information contained in the form4 7iii7 ,signatories required ,the ,informed ,consent ,authorization form shall be signed in person by the woman seeking the abortion1 the physician performing or attempting to perform the abortion1 and a witness4 7iv7 ,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 file4 7,g7 ,requirement for data retention ,paragraph 7j77#b7 of section #afd4ecj of title #de1 ,code of ,federal ,regulations1 shall apply to documentation required to be placed in a patient's medical file pursuant to subparagraph 7,f7 of subsection 7b77#b7 and a consent form required to be retained in a patient's medical file pursuant to subparagraph 7,g7 of such subsection in the same manner and to the same extent as such paragraph applies to documentation required by paragraph 7j77#a7 of such section4 7,h7 ,additional exceptions and requirements 7i7 ,in cases of risk of death or severe injury to the mother ,subparagraphs 7,c71 7,d71 and 7,g7 shall not apply if1 in reasonable medical judgment1 compliance with such paragraphs would pose a greater risk of-- 7,i7 the death of the pregnant woman2 or 7,,ii7 the substantial and irreversible physical impairment of a major bodily function1 not including psychological or emotional conditions1 of the pregnant woman4 7ii7 ,compliance with certain ,state laws 7,i7 ,state laws regarding reporting of rape and incest ,the physician who performs or attempts to perform an abortion under an exception provided by subparagraph 7,b7 shall comply with such applicable ,state laws that are in effect as the ,state's ,attorney ,general may designate1 regarding reporting requirements in cases of rape or incest4 7,,ii7 ,state laws regarding parental involvement ,the physician who intends to perform an abortion on a minor under an exception provided by subparagraph 7,b7 shall comply with any applicable ,state laws requiring parental involvement in a minor's decision to have an abortion4 7c7 ,criminal ,penalty ,whoever violates subsection 7a7 shall be fined under this title or imprisoned for not more than #e years1 or both4 7d7 ,bar to ,prosecution ,a woman upon whom an abortion in violation of subsection 7a7 is performed or attempted may not be prosecuted under1 or for a conspiracy to violate1 subsection 7a71 or for an offense under section #b1 #c1 or #d of this title based on such a violation4 7e7 ,civil ,remedies 7#a7 ,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 may1 in a civil action against any person who committed the violation1 obtain appropriate relief4 7#b7 ,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 7b77#b77;,b71 and that was performed in violation of any provision of this section may1 in a civil action against any person who committed the violation obtain appropriate relief1 unless the pregnancy resulted from the plaintiff's criminal conduct4 7#c7 ,appropriate relief ,appropriate relief in a civil action under this subsection includes-- 7,a7 objectively verifiable money damages for all injuries1 psychological and physical1 occasioned by the violation2 7,b7 statutory damages equal to three times the cost of the abortion2 and 7,c7 punitive damages4 7#d7 ,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 subsection4 7#e7 ,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 frivolous1 the court shall award a reasonable attorney's fee in favor of the defendant against the plaintiff4 7#f7 ,awards against woman ,except under paragraph 7#e71 in a civil action under this subsection1 no damages1 attorney's fee or other monetary relief may be assessed against the woman upon whom the abortion was performed or attempted4 7f7 ,definitions ,in this section the following definitions apply3 7#a7 ,abortion ,the term abortion means the use or prescription of any instrument1 medicine1 drug1 or any other substance or device-- 7,a7 to intentionally kill the unborn child of a woman known to be pregnant2 or 7,b7 to intentionally terminate the pregnancy of a woman known to be pregnant1 with an intention other than-- 7i7 after viability to produce a live birth and preserve the life and health of the child born alive2 or 7ii7 to remove a dead unborn child4 7#b7 ,attempt ,the term attempt1 with respect to an abortion1 means conduct that1 under the circumstances as the actor believes them to be1 constitutes a substantial step in a course of conduct planned to culminate in performing an abortion4 7#c7 ,counseling ,the term counseling means counseling provided by a counselor licensed by the ,state1 or a victims rights advocate provided by a law enforcement agency4 7#d7 ,facility ,the term facility means any medical or counseling group1 center or clinic and includes the entire legal entity1 including any entity that controls1 is controlled by1 or is under common control with such facility4 7#e7 ,fertilization ,the term fertilization means the fusion of human spermatozoon with a human ovum4 7#f7 ,medical treatment ,the term medical treatment means treatment provided at a hospital licensed by the ,state or operated under authority of a ,federal agency1 at a medical clinic licensed by the ,state or operated under authority of a ,federal agency1 or from a personal physician licensed by the ,state4 7#g7 ,minor ,the term minor means an individual who has not attained the age of #ah years4 7#h7 ,perform ,the term perform1 with respect to an abortion1 includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion4 7#i7 ,physician ,the term physician means a person licensed to practice medicine and surgery or osteopathic medicine and surgery1 or otherwise legally authorized to perform an abortion4 7#aj7 ,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 ovum4 7#aa7 ,probable post-fertilization age of the unborn child ,the term probable post-fertilization age of the unborn child means what1 in reasonable medical judgment1 will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced4 7#ab7 ,reasonable medical judgment ,the term reasonable medical judgment means a medical judgment that would be made by a reasonably prudent physician1 knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved4 7#ac7 ,unborn child ,the term unborn child means an individual organism of the species homo sapiens1 beginning at fertilization1 until the point of being born alive as defined in section #h7;b7 of title #a4 7#ad7 ,woman ,the term woman means a female human being whether or not she has reached the age of majority4 4 7b7 ,clerical ,amendment ,the table of sections at the beginning of chapter #gd of title #ah1 ,united ,states ,code1 is amended by adding at the end the following new item3 #aecb4 ,pain-capable unborn child protection4 4 7c7 ,chapter heading amendments 7#a7 ,chapter heading in chapter ,the chapter heading for chapter #gd of title #ah1 ,united ,states ,code1 is amended by striking ,partial-,birth ,abortions and inserting ,abortions4 7#b7 ,table of chapters for part ,i ,the item relating to chapter #gd in the table of chapters at the beginning of part ,i of title #ah1 ,united ,states ,code1 is amended by striking ,partial-,birth ,abortions and inserting ,abortions4