109th CONGRESS
2d Session
H. R. 6099
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
IN THE HOUSE OF REPRESENTATIVES
September 19, 2006
Mr. SMITH of New Jersey (for himself, Mr. ADERHOLT, Mr. AKIN, Mr. BACHUS,
Mr. BARTLETT of Maryland, Mr. BLUNT, Mr. BOEHNER, Mr. BOOZMAN, Mr. BOUSTANY,
Mr. BURGESS, Mr. BURTON of Indiana, Mr. CANNON, Mr. CANTOR, Mr. CARTER,
Mr. CHABOT, Mr. DAVIS of Kentucky, Mrs. JO ANN DAVIS of Virginia, Mr. DAVIS
of Tennessee, Mr. LINCOLN DIAZ-BALART of Florida, Mr. MARIO DIAZ-BALART
of Florida, Mr. DOOLITTLE, Mrs. DRAKE, Mr. EHLERS, Mrs. EMERSON, Mr. FERGUSON,
Mr. FORTENBERRY, Ms. FOXX, Mr. FRANKS of Arizona, Mr. GARRETT of New Jersey,
Mr. GOODE, Mr. HENSARLING, Mr. HERGER, Mr. HOEKSTRA, Mr. HUNTER, Mr. ISTOOK,
Mr. SAM JOHNSON of Texas, Mr. KENNEDY of Minnesota, Mr. KING of Iowa, Mr.
LAHOOD, Mr. LATHAM, Mr. TERRY, Mr. LEWIS of Kentucky, Mr. MANZULLO, Mr.
MCCAUL of Texas, Mr. MCCOTTER, Mr. MCHENRY, Mr. MELANCON, Mr. MILLER of
Florida, Mrs. MUSGRAVE, Mrs. MYRICK, Mr. NEUGEBAUER, Mr. PENCE, Mr. PICKERING,
Mr. PITTS, Mr. RADANOVICH, Mr. RAHALL, Mr. RENZI, Mr. ROGERS of Michigan,
Ms. ROS-LEHTINEN, Mr. RYAN of Wisconsin, Mr. RYUN of Kansas, Mr. SHADEGG,
Mr. SOUDER, Mr. TIAHRT, Mr. WESTMORELAND, Mr. WILSON of South Carolina,
and Mr. GARY G. MILLER of California) introduced the following bill; which
was referred to the Committee on Energy and Commerce
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 2006'.
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 18 U.S.C. 1531.
(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 XXIX--UNBORN CHILD PAIN AWARENESS
`SEC. 2901. DEFINITIONS.
`(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.
`(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. 2902. 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 2006, 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.
`(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 XX 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
2006, 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 2903 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. 2903. EXCEPTION FOR MEDICAL EMERGENCIES.
`(a) In General- The provisions of section 2902 shall not apply to an abortion
provider in the case of a medical emergency.
`(b) Medical Emergency Defined-
`(1) IN GENERAL- In subsection (a), the term `medical emergency' means
a condition which, in the reasonable medical judgment of the abortion
provider, so complicates the medical condition of the pregnant woman so
as to necessitate the immediate termination of her pregnancy to avert
her death, or for which a delay would create a serious risk of substantial
and irreversible impairment of a major bodily function. The term `medical
emergency' shall not include emotional, psychological or mental disorders
or conditions.
`(2) REASONABLE MEDICAL JUDGMENT- In paragraph (1), 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.
`(1) IN GENERAL- Upon a determination by an abortion provider under subsection
(a) that a medical emergency exists with respect to a pregnant woman,
such provider shall certify the specific medical conditions that constitute
the emergency.
`(2) FALSE STATEMENTS- An abortion provider who willfully falsifies a
certification under paragraph (1) shall be subject to all the penalties
provided for under section 2904 for failure to comply with this title.
`SEC. 2904. 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 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.
END
