110th CONGRESS
1st Session
S. 356
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
IN THE SENATE OF THE UNITED STATES
January 22, 2007
Mr. BROWNBACK (for himself, Mr. ALEXANDER, Mr. BUNNING, Mr. BURR, Mr. CHAMBLISS,
Mr. COBURN, Mr. COCHRAN, Mr. COLEMAN, Mr. CORNYN, Mr. DEMINT, Mrs. DOLE,
Mr. ENSIGN, Mr. ENZI, Mr. GRAHAM, Mr. GRASSLEY, Mr. HAGEL, Mr. HATCH, Mr.
INHOFE, Mr. ISAKSON, Mr. KYL, Mr. LOTT, Mr. MARTINEZ, Mr. MCCONNELL, Mr.
ROBERTS, Mr. SESSIONS, Mr. THUNE, Mr. VITTER, and Mr. VOINOVICH) 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 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 2007'.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) At least 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 past fertilization who undergo prenatal surgery.
(4) There is substantial evidence that the abortion methods most commonly
used 20 weeks 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 after
fertilization include, but are not limited to the following:
(A) The Dilation and Evacuation (D&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 at random with a
long-toothed clamp. The fetal body parts are then torn off of 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.
(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 reducing the number
of events in which great pain is inflicted 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 Humane Slaughter Act (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;
`(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 semi-annually 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.
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 to
terminate the pregnancy of a woman known to be pregnant with an intention
other than to increase the probability of a live birth, to preserve the
life or health of the child after live birth, or to remove a dead fetus.
`(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 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 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 on the basis of examination of the unborn
child using ultrasound or other imaging technology, in addition to 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, who is carried in the womb.
`(6) WOMAN- The term `woman' means a female human being who is capable
of becoming pregnant, whether or not she has reached the age of majority.
`SEC. 2902. REQUIREMENT OF INFORMED CONSENT.
`(a) Requirement of Compliance by Providers- An abortion provider performing
any abortion of a pain-capable unborn child, that is in or affecting interstate
commerce, 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).
`(2) REQUIRED INFORMATION-
`(i) IN GENERAL- An abortion provider or the provider's agent to whom
paragraph (1) applies shall make the following oral statement 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):
`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. The Congress of the United States has determined
that at this stage of development, an unborn child has the physical
structures necessary to experience pain. There is substantial evidence
that 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. Congress finds that 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 Unborn Child Pain Awareness Act of 2007, you have the option
of choosing to have anesthesia or other pain-reducing drug or drugs
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.'.
`(ii) DESCRIPTION OF RISKS- After making the statement required under
clause (i), the abortion provider may provide the woman involved with
his or her best medical judgment on the risks of administering such
anesthesia or analgesic, if any, and the costs associated therewith.
`(iii) ADMINISTRATION OF ANESTHESIA- If the abortion provider is not
qualified or willing to administer the anesthesia or other pain-reducing
drug in response to the request of a pregnant woman after making the
statement required under clause (i), 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 elects to receive anesthesia or other pain-reducing drugs for
her unborn child.
`(iv) 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).
`(C) UNBORN CHILD PAIN AWARENESS DECISION FORM- An abortion provider
to whom paragraph (1) applies shall provide the pregnant woman with
the Unborn Child Pain Awareness Decision Form (provided for under subsection
(c)) 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 be written in English and Spanish and shall
contain the same information as required under the statement under subsection
(b)(2)(A)(i), including 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. Such information shall
be written in an objective and nonjudgmental manner and be printed in
a typeface large enough to be clearly legible. The Brochure shall 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
shall offer to provide a pregnant woman with the Brochure developed under
paragraph (1) before any part of an abortion of a pain-capable child begins--
`(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) through a request to have such Brochure mailed, by certified mail,
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, the 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.
`(5) 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--
`(A) with respect to the pregnant woman--
`(i) contain a statement that affirms that the woman has received
or been offered all of the information required in subsection (b);
`(ii) require the woman to explicitly either request or refuse the
administration of pain-reducing drugs to the unborn child;
`(iii) be signed by a pregnant woman prior to the performance of an
abortion involving a pain-capable unborn child; and
`(B) with respect to the abortion provider--
`(i) contain a statement that the provider has provided the woman
with all of the information required under subsection (b);
`(ii) if applicable, contain a certification by the provider that
an exception described in section 2903 applies and the detailed reasons
for such certification; and
`(iii) be signed by the provider prior to the performance of the abortion
procedure.
`(6) MAINTENANCE OF RECORDS- The Secretary shall promulgate regulations
relating to the period of time during which copies of Forms under paragraph
(5) 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 that
a delay in commencing an abortion procedure would impose a serious risk
of causing grave and irreversible physical health damage entailing substantial
impairment of a major bodily function.
`(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, the Deputy Attorney General,
the Associate Attorney General, or any Assistant Attorney General or United
States Attorney who has been specifically designated by the Attorney General
may commence a civil action under this section.
`(c) Certification Requirements- At the time of the commencement of an action
under this section, the Attorney General, the Deputy Attorney General, the
Associate Attorney General, or any Assistant Attorney General or United
States Attorney who has been specifically designated by the Attorney General
to commence a civil action under this section, shall certify to the court
involved that, at least 30 calendar days prior to the filing of such action,
the Attorney General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General or United States Attorney involved--
`(1) has provided notice of the alleged violation of this section, in
writing, to the Governor or Chief Executive Officer and Attorney General
or Chief Legal Officer of the State or political subdivision involved,
as well as to the State medical licensing board or other appropriate State
agency; and
`(2) believes that such an action by the United States is in the public
interest and necessary to secure substantial justice.
`(d) 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
in order to effect the suspension of the respondent's medical license in
accordance with the regulations and procedures promulgated under section
2905, or shall assess a civil penalty against the respondent in an amount
not to exceed $100,000, or both.
`(e) Second Offense- 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 in order to effect the revocation
of the respondent's medical license in accordance with the regulations and
procedures promulgated under section 2905, or shall assess a civil penalty
against the respondent in an amount not to exceed $250,000, or both.
`(f) Hearing- With respect to an action under this section, the appropriate
State medical licensing authority shall be given notification of and an
opportunity to be heard at a hearing to determine the penalty to be imposed
under this section.
`(g) 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. 2905. REGULATIONS.
`A State, and the medical licensing authority of the State, shall promulgate
regulations and procedures for the revocation or suspension of the medical
license of an abortion provider upon a finding by a court under section
2904 that the provider has violated a provision of this title. A State that
fails to implement such procedures shall be subject to loss of funding under
title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).
`SEC. 2906. PREEMPTION.
`Nothing in this title 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 for under this title.'.
END
