,,ii #aagth ,,congress #b;d ,session ,s4 #dhdj ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,september #ac1 #bjbb,mr4 ,graham 7for himself1 ,mr4 ,daines1 and ,mr4 ,rubio7 introduced the following bill2 which was read twice and 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 ,protecting ,pain-,capable ,unborn ,children from ,late-,term ,abortions ,act4 #b4 ,legislative findings and declaration of constitutional authority for enactment ,congress finds and declares the following3 7#a7 ,medical and other authorities now know more about human prenatal development than ever before1 including that-- 7,a7 an unborn child first moves about in the womb and first reacts to touch at approximately #h weeks gestation2 7,b7 the eyes begin to form at #e weeks gestation and finish forming by #aj weeks gestation2 7,c7 eye movements can be detected by ultrasound at #ab weeks gestation2 7,d7 by #h to #i weeks gestation1 an unborn child has detectable brain waves2 7,e7 at #i weeks gestation-- 7i7 an unborn child's diaphragm is developing1 and he or she may even hiccup2 and 7ii7 an unborn child is beginning to move about freely in the womb2 7,f7 by #i to #aa weeks gestation1 teeth as well as external genitalia begin to form2 7,g7 by #aj weeks gestation-- 7i7 all of an unborn child's organ rudiments are formed and in place2 7ii7 the digestive system and kidneys start to function2 and 7iii7 an unborn child will show a preference for either right-handedness or left-handedness2 and 7,h7 at #ab weeks gestation-- 7i7 an unborn child can open and close his or her fingers1 starts to make sucking motions1 and senses stimulation from the world outside the womb2 and 7ii7 fingernails and fingerprints begin to form4 7#b7 ,the ,supreme ,court of the ,united ,states has acknowledged that1 by at least #ab weeks gestation1 an unborn child has taken on the human form in all relevant aspects4 ,gonzales v4 ,carhart1 #eej ,u4,s4 #abd1 #afj 7#bjjg74 7#c7 ,pain receptors 7also known as nociceptors7 begin forming at #g weeks gestational age4 ,nerves linking these pain receptors to the brain's thalamus and subcortical plate form between #ab and #bj weeks gestational age4 ,at no later than #af weeks gestational age1 the first contact occurs between the subcortical plate and these forming fibers4 7#d7 ,in considering the use of anesthesia for invasive medical procedures performed on the fetus1 doctors have concluded1 based on the evidence1 that from as early as #ab weeks gestational age1 and certainly by #ae weeks gestational age1 the fetus is extremely sensitive to painful stimuli1 making it necessary to apply adequate analgesia and anesthesia to prevent fetal suffering4 7#e7 ,substantial evidence indicates that neural elements1 such as the thalamus and subcortical plate1 which develop at specific times during the early development of an unborn child1 serve as pain-processing structures1 and are different from the neural elements used for pain processing by adults4 ,recent evidence1 particularly since #bjaf1 demonstrates that structures responsible for pain show signs of sufficient maturation beginning at #ae weeks of gestation4 7#f7 ,in an unborn child1 application of painful stimuli is associated with significant increases in stress hormones known as the stress response4 7#g7 ,subjection to 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#h7 ,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 7#i7 ,the assertion by some medical experts that an unborn child is incapable of experiencing pain until a point in pregnancy later than #bd weeks gestational age 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 provide strong evidence for the conclusion that a functioning cortex is not necessary to experience pain4 7#aj7 ,substantial evidence indicates that children born missing the bulk of the cerebral cortex1 such as those with hydranencephaly1 nevertheless experience pain4 7#aa7 ,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#ab7 ,the assertion of some medical experts that an unborn child remains in a coma-like sleep state that precludes an unborn child from 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 an unborn child with anesthesia and provide analgesia to prevent an unborn child from engaging in vigorous movement in reaction to invasive surgery4 7#ac7 ,consequently1 there is substantial medical evidence that an unborn child is capable of experiencing pain at least by #ae weeks gestational age1 if not earlier4 7#ad7 ,abortion carries significant physical and psychological risks to the pregnant woman1 and these physical and psychological risks increase with gestational age4 7#ae7 ,the majority of abortion procedures performed after #ae weeks gestation are dismemberment abortion procedures which involve the use of surgical instruments to crush and tear an unborn child apart before removing the pieces of the dead child from the womb4 7#af7 ,medical complications from dismemberment abortions include pelvic infection1 incomplete abortions 7retained tissue71 blood clots1 heavy bleeding or hemorrhage1 laceration1 tear1 or other injury to the cervix1 puncture1 laceration1 tear1 or other injury to the uterus1 injury to the bowel or bladder1 depression1 anxiety1 substance abuse1 and other emotional or psychological problems4 ,further1 in abortions performed after #ae weeks gestation1 there is a higher risk of requiring a hysterectomy1 other reparative surgery1 or a blood transfusion4 7#ag7 ,in subparagraphs 7,j7 and 7,k7 of section #b7ad7 of the ,partial-,birth ,abortion ,ban ,act of #bjjc 7,public ,law #ajh-aje2 #aag ,stat4 #abja71 ,congress found and declared that late-term abortion1 such as a dismemberment abortion1 confuses the medical1 legal1 and ethical duties of physicians to preserve and promote life1 as the physician acts directly against the physical life of a child and undermines the public's perception of the appropriate role of a physician4 7#ah7 ,the ,supreme ,court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty4 ,gonzales v4 ,carhart1 #eej ,u4,s4 at #afc4 ,the law need not give abortion doctors unfettered choice in the course of their medical practice1 nor should it elevate their status above other physicians in the medical community4 ,gonzales v4 ,carhart1 #eej ,u4,s4 at #afc4 ,medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts4 ,gonzales v4 ,carhart1 #eej ,u4,s4 at #afd4 7#ai7 ,the ,supreme ,court has held that it is time to heed the ,constitution and return the issue of abortion to the people's elected representatives4 ,dobbs v4 ,jackson ,women's ,health ,organization1 #adb ,s4 ,ct4 #bbbh1 #bbdc 7#bjbb74 7#bj7 ,the ,supreme ,court has also held that a law regulating abortion1 like other health and welfare laws1 is entitled to a strong presumption of validity4 4 4 4 ,it must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests4 4 4 4 ,these legitimate interests include respect for and preservation of prenatal life at all stages of development 4 4 4 2 the protection of maternal health and safety2 the elimination of particularly gruesome or barbaric medical procedures2 the preservation of the integrity of the medical profession2 the mitigation of fetal pain2 and the prevention of discrimination on the basis of race1 sex1 or disability4 ,dobbs v4 ,jackson ,women's ,health ,organization1 #adb ,s4 ,ct4 at #bbci4 7#ba7 ,it is the purpose of ,congress to assert a legitimate 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#bb7 ,congress has authority to extend protection to pain-capable unborn children under-- 7,a7 the ,commerce ,clause of section #h of article ,i of the ,constitution of the ,united ,states1 as interpreted by the ,supreme ,court2 and 7,b7 the ,equal ,protection and ,due ,process ,clauses of section #a1 and the ,enforcement ,clause of section #e1 of the #adth ,amendment to the ,constitution4 #c4 ,federal minimum protections for pain-capable unborn children 7a7 ,in general ,chapter #gd of title #ah1 ,united ,states ,code1 is amended by inserting after section #aeca the following3 #aecb4 ,federal minimum protections for pain-capable unborn children 7a7 ,unlawful conduct ,subject to subsection 7g7 and 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 ,minimum 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 gestational 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 gestational age4 7#b7 ,prohibition on performance of certain abortions 7,a7 ,generally for unborn children #ae weeks or older ,except as provided in subparagraph 7,b71 the abortion shall not be performed or attempted1 if the probable gestational age1 as determined under paragraph 7#a71 of the unborn child is #ae weeks or greater4 7,b7 ,exceptions ,subparagraph 7,a7 does not apply if-- 7i7 in reasonable medical judgment1 the abortion is necessary to save the life of a pregnant woman whose life is 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 woman1 and at least #dh hours prior to the abortion-- 7,i7 she has obtained counseling for the rape2 or 7,,ii7 she has obtained medical treatment for the rape or an injury related to the rape2 or 7iii7 the pregnancy is a result of rape against a minor or incest against a minor1 and the rape or incest has been reported at any time prior to the abortion to either-- 7,i7 a government agency legally authorized to act on reports of child abuse2 or 7,,ii7 a law enforcement agency4 7,c7 ,requirement as to manner of procedure performed ,notwithstanding the definitions of abortion and attempt 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 pain-capable 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 as defined in section #h of title #a 7commonly known as the ,born-,alive ,infants ,protection ,act of #bjjb71 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 ,immediate admission to a hospital ,following the care required to be rendered under clause 7i71 the child born alive shall be immediately transported and admitted to a hospital4 7iii7 ,mandatory reporting of violations ,a health care practitioner or any 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 ,documentation requirements 7i7 ,documentation pertaining to adults ,a physician who performs or attempts to perform an abortion under an exception provided by subparagraph 7,b77ii7 shall1 prior to the abortion1 place in the patient medical file documentation from a hospital licensed by the ,state or operated under authority of a ,federal agency1 a medical clinic licensed by the ,state or operated under authority of a ,federal agency1 from a personal physician licensed by the ,state1 a counselor licensed by the ,state1 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 rape4 7ii7 ,documentation pertaining to minors ,a physician who performs or attempts to perform an abortion under an exception provided by subparagraph 7,b77iii7 shall1 prior to the abortion1 place in the patient medical file-- 7,i7 documentation from a government agency legally authorized to act on reports of child abuse that the rape or incest was reported prior to the abortion2 or 7,,ii7 as an alternative1 documentation from a law enforcement agency that the rape or incest was reported prior to the abortion4 7,g7 ,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 gestational age of the pain-capable unborn child2 7,,ii7 a statement that ,federal law allows abortion after #ae weeks probable gestational age only if-- 7aa7 the mother's life is endangered by a physical disorder1 physical illness1 or physical injury2 or 7bb7 the pregnancy was the result of-- 7,,aa7 rape2 or 7,,bb7 an act of incest against a minor2 7,,iii7 a statement that the pregnancy must be terminated 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,h7 ,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,i7 ,additional exceptions and requirements 7i7 ,in cases of risk of death or major 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 ,exclusion of certain facilities ,notwithstanding the definitions of the terms medical treatment and counseling in subsection 7g71 the counseling or medical treatment described in subparagraph 7,b77ii7 may not be provided by a facility that performs abortions 7unless that facility is a hospital74 7iii7 ,rule of construction in cases of reports to law enforcement ,the requirements of subparagraph 7,b77ii7 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 personnel4 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 #c 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 as provided in 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 ,data collection 7#a7 ,data submissions ,any physician who performs or attempts an abortion described in subsection 7b77#b77;,b7 shall annually submit a summary of all such abortions to the ,national ,center for ,health ,statistics 7in this subsection referred to as the ,center7 not later than #fj days after the end of the calendar year in which the abortion was performed or attempted4 7#b7 ,contents of summary ,the summary shall include the number of abortions performed or attempted on an unborn child who had a gestational age of #ae weeks or more and specify the following for each abortion under subsection 7b77#b77;,b73 7,a7 ,the probable gestational age of the unborn child4 7,b7 ,the method used to carry out the abortion4 7,c7 ,the location where the abortion was conducted4 7,d7 ,the exception under subsection 7b77#b77;,b7 under which the abortion was conducted4 7,e7 ,any incident of live birth resulting from the abortion4 7#c7 ,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 #aiif 7#db ,u4,s4,c4 #acbj;d-#b note74 7#d7 ,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 subsection4 ,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 attempted4 ,the annual report shall be issued by ,july #a of the calendar year following the year in which the abortions were performed or attempted4 7g7 ,rules of construction 7#a7 ,greater protection ,nothing in this section may be construed to preempt or limit any ,federal1 ,state1 or local law that provides greater protections for an unborn child than those provided in this section4 7#b7 ,creating or recognizing right ,nothing in this section shall be construed to-- 7,a7 create or recognize a right to abortion2 or 7,b7 make lawful an abortion that is unlawful on the date of enactment of this section4 7h7 ,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 viability1 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 a human spermatozoon with a human ovum4 7#f7 ,gestational age ,the term gestational age1 with respect to an unborn child1 means the age of the unborn child calculated from the first day of the pregnant woman's last menstrual period4 7#g7 ,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#h7 ,minor ,the term minor means an individual who has not attained the age of #ah years4 7#i7 ,perform ,the term perform1 with respect to an abortion1 includes inducing an abortion through a medical or chemical intervention1 including writing a prescription for a drug or device intended to result in an abortion4 7#aj7 ,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#aa7 ,probable gestational age of the unborn child ,the term probable gestational age of the unborn child means what1 in reasonable medical judgment1 will with reasonable probability be the gestational age at the time the abortion is 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 physician in the field of obstetrics1 maternal fetal medicine1 or neonatology who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved4 7#ac7 ,state ,the term ,state means any of the several ,states1 the ,district of ,columbia1 or any territory or possession of the ,united ,states4 7#ad7 ,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#ae7 ,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 ,federal minimum protections for 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 to read as follows3 #gd4 ,abortions#aeca 4