117th CONGRESS 2d Session |
To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes.
Mr. Graham (for himself, Mr. Daines, and Mr. Rubio) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act .
SEC. 2. Legislative findings and declaration of constitutional authority for enactment.
Congress finds and declares the following:
(1) Medical and other authorities now know more about human prenatal development than ever before, including that
(A) an unborn child first moves about in the womb and first reacts to touch at approximately 8 weeks gestation;
(B) the eyes begin to form at 5 weeks gestation and finish forming by 10 weeks gestation;
(C) eye movements can be detected by ultrasound at 12 weeks gestation;
(D) by 8 to 9 weeks gestation, an unborn child has detectable brain waves;
(i) an unborn child s diaphragm is developing, and he or she may even hiccup; and
(ii) an unborn child is beginning to move about freely in the womb;
(F) by 9 to 11 weeks gestation, teeth as well as external genitalia begin to form;
(i) all of an unborn child s organ rudiments are formed and in place;
(ii) the digestive system and kidneys start to function; and
(iii) an unborn child will show a preference for either right-handedness or left-handedness; and
(i) an unborn child can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb; and
(ii) fingernails and fingerprints begin to form.
(2) The Supreme Court of the United States has acknowledged that, by at least 12 weeks gestation, an unborn child has taken on the human form in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007).
(3) Pain receptors (also known as nociceptors ) begin forming at 7 weeks gestational age. Nerves linking these pain receptors to the brain s thalamus and subcortical plate form between 12 and 20 weeks gestational age. At no later than 16 weeks gestational age, the first contact occurs between the subcortical plate and these forming fibers.
(4) In considering the use of anesthesia for invasive medical procedures performed on the fetus, doctors have concluded, based on the evidence, that from as early as 12 weeks gestational age, and certainly by 15 weeks gestational age, the fetus is extremely sensitive to painful stimuli, making it necessary to apply adequate analgesia and anesthesia to prevent fetal suffering.
(5) Substantial evidence indicates that neural elements, such as the thalamus and subcortical plate, which develop at specific times during the early development of an unborn child, serve as pain-processing structures, and are different from the neural elements used for pain processing by adults. Recent evidence, particularly since 2016, demonstrates that structures responsible for pain show signs of sufficient maturation beginning at 15 weeks of gestation.
(6) In an unborn child, application of painful stimuli is associated with significant increases in stress hormones known as the stress response.
(7) Subjection to painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.
(8) For the purposes of surgery on unborn children, 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 anesthesia.
(9) The assertion by some medical experts that an unborn child is incapable of experiencing pain until a point in pregnancy later than 24 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 cortex. However, recent medical research and analysis, especially since 2007, provide strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.
(10) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, such as those with hydranencephaly, nevertheless experience pain.
(11) In adult humans and in animals, stimulation or ablation of the cerebral cortex does not alter pain perception, while stimulation or ablation of the thalamus does.
(12) 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 surgery.
(13) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 15 weeks gestational age, if not earlier.
(14) Abortion carries significant physical and psychological risks to the pregnant woman, and these physical and psychological risks increase with gestational age.
(15) The majority of abortion procedures performed after 15 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 womb.
(16) Medical complications from dismemberment abortions include pelvic infection, incomplete abortions (retained tissue), blood clots, heavy bleeding or hemorrhage, laceration, tear, or other injury to the cervix, puncture, laceration, tear, or other injury to the uterus, injury to the bowel or bladder, depression, anxiety, substance abuse, and other emotional or psychological problems. Further, in abortions performed after 15 weeks gestation, there is a higher risk of requiring a hysterectomy, other reparative surgery, or a blood transfusion.
(17) In subparagraphs (J) and (K) of section 2(14) of the Partial-Birth Abortion Ban Act of 2003 (Public Law 108 105; 117 Stat. 1201), Congress found and declared that late-term abortion, such as a dismemberment abortion, confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child and undermines the public s perception of the appropriate role of a physician .
(18) The [Supreme] Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. Gonzales v. Carhart, 550 U.S. at 163. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. Gonzales v. Carhart, 550 U.S. at 163. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Gonzales v. Carhart, 550 U.S. at 164.
(19) The Supreme Court has held that [i]t is time to heed the Constitution and return the issue of abortion to the people s elected representatives. Dobbs v. Jackson Women s Health Organization, 142 S. Ct. 2228, 2243 (2022).
(20) The Supreme Court has also held that [a] law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. . . . It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. . . . These legitimate interests include respect for and preservation of prenatal life at all stages of development . . . ; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. Dobbs v. Jackson Women s Health Organization, 142 S. Ct. at 2239.
(21) 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 pain.
(22) Congress has authority to extend protection to pain-capable unborn children under
(A) the Commerce Clause of section 8 of article I of the Constitution of the United States, as interpreted by the Supreme Court; and
(B) the Equal Protection and Due Process Clauses of section 1, and the Enforcement Clause of section 5, of the 14th Amendment to the Constitution.
SEC. 3. Federal minimum protections for pain-capable unborn children.
(a) In general. Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following:
1532. Federal minimum protections for pain-capable unborn children
(a) Unlawful conduct. Subject to subsection (g) and notwithstanding any other provision of law, it shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in subsection (b).
(b) Minimum requirements for abortions.
(1) 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 physician. In making such a determination, 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 physician, knowledgeable about the case and the medical conditions involved, would consider necessary to make an accurate determination of gestational age.
(2) PROHIBITION ON PERFORMANCE OF CERTAIN ABORTIONS.
(A) GENERALLY FOR UNBORN CHILDREN 15 WEEKS OR OLDER. Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable gestational age, as determined under paragraph (1), of the unborn child is 15 weeks or greater.
(B) EXCEPTIONS. Subparagraph (A) does not apply if
(i) in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions;
(ii) the pregnancy is the result of rape against an adult woman, and at least 48 hours prior to the abortion
(I) she has obtained counseling for the rape; or
(II) she has obtained medical treatment for the rape or an injury related to the rape; or
(iii) the pregnancy is a result of rape against a minor or incest against a minor, and the rape or incest has been reported at any time prior to the abortion to either
(I) a government agency legally authorized to act on reports of child abuse; or
(II) a law enforcement agency.
(C) REQUIREMENT AS TO MANNER OF PROCEDURE PERFORMED. Notwithstanding the definitions of abortion and attempt in this section, a physician terminating or attempting to terminate a pregnancy under an exception provi