S. 2311Senate115th Congress (2017-2019)Failed

Pain-Capable Unborn Child Protection Act

AI-Generated Summary

Updated April 15, 2026 at 7:53 PM UTC

The Pain‑Capable Unborn Child Protection Act amends federal criminal law to ban abortions performed at 20 weeks post‑fertilization or later, based on medical evidence that a fetus can feel pain at that stage. It allows abortions only in limited cases—when the woman's life is at risk, or when the pregnancy results from adult rape (with recent counseling or treatment) or minor rape/incest (with a prior report). The law also creates new reporting, documentation, and civil‑penalty requirements for providers and protects the woman from criminal prosecution.

Key Provisions

Makes it a federal crime to perform or attempt an abortion at 20 weeks gestation or later, except for life‑threatening maternal conditions or specific rape/incest circumstances.
Requires physicians to determine the fetus’s probable post‑fertilization age using appropriate medical exams before proceeding.
Mandates informed‑consent forms that disclose fetal age, legal exceptions, and required care for any child born alive, signed by the woman, physician, and a witness.
If an abortion is done under an exception and the child survives, a physician trained in neonatal resuscitation must be present and the child must receive the same care as a newborn, be hospitalized, and the incident reported.
Establishes civil damages (including statutory and punitive damages) and criminal penalties (up to 5 years imprisonment) for violations, while shielding the woman from prosecution.
Requires annual data submissions to the National Center for Health Statistics on abortions performed after 20 weeks, with public reporting by state.

Legislative Activity

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6 earlier actions

SenateFloor Latest Action

Cloture on the motion to proceed to the measure not invoked in Senate by Yea-Nay Vote. 51 - 46. Record Vote Number: 25.

View vote Failed

January 29, 2018

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SenateIntro Referral

Introduced in Senate

January 16, 2018

SenateCalendars

Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.

January 16, 2018

SenateCalendars

Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 294.

January 17, 2018

SenateFloor

Motion to proceed to consideration of measure made in Senate. (consideration: CR S498)

January 24, 2018

SenateFloor

Cloture motion on the motion to proceed to the measure presented in Senate. (CR S498)

January 24, 2018

SenateFloor

Motion to proceed to measure considered in Senate. (consideration: CR S527-545)

January 29, 2018

SenateFloor

Cloture on the motion to proceed to the measure not invoked in Senate by Yea-Nay Vote. 51 - 46. Record Vote Number: 25.

View vote Failed

January 29, 2018

Voting History

1 vote recorded • Roll call available

SENATE

Roll Call Available

January 29, 2018 at 5:50 PM

On Cloture on the Motion to Proceed S. 2311

Majority required: 3/5 (60%)

Failed

51 - 46

Floor Debate

24 members

What members said about S. 2311 on the floor

+19

13 Republicans11 Democrats

Sen. Sheldon WhitehouseD-RI · Jan 29, 2018

Mr. President, I am prepared to deliver remarks, but I see that the majority leader is on the floor, and I do not want to intrude on his desire to take the floor if he wishes. Mr. President, tomorrow…

Mr. President, I am prepared to deliver remarks, but I see that the majority leader is on the floor, and I do not want to intrude on his desire to take the floor if he wishes.

Mr. President, tomorrow the Environment and Public Works Committee will have an opportunity to question Environmental Protection Agency Administrator Scott Pruitt at an oversight hearing. Oversight of the executive branch is one of the Senate's great responsibilities. Unfortunately, the Republican leadership of this body has shown little interest in holding the Trump administration accountable, despite the fact that this administration is more ethically challenged, more riven by conflicts of interest, more captured by special interests, more defined by cronyism than any other.

After a year of Pruitt at the helm of EPA--a tenure that has been marked by mass staff departures, a slowdown in enforcement actions, questionable travel and other personal spending, rolling back critical clean air and clean water protections, a purge of scientists, an influx of industry insiders, a smorgasbord of meetings with industry bigwigs, many of whom coincidentally also bankrolled his political career back in Oklahoma, an obsession with secrecy, and heaps and heaps and heaps of climate denial--Pruitt will finally be appearing before our committee. I urge my Republican colleagues on EPW to bring some good questions to tomorrow's hearing.

Judging by Pruitt's first year, he is running dangerously amok. He has turned EPA into perhaps the swampiest Agency in a very swampy administration. Pruitt's record at EPA demands the sort of oversight this body used to exercise. If you don't believe this about Pruitt's record, just take a look at what some distinguished Republicans have to say. William Ruckelshaus, who under both Presidents Richard Nixon and Ronald Reagan ran the EPA, has criticized Pruitt's penchant for secrecy in this Washington Post op-ed contrasting it with his own more transparent management style. He said:

We release[d] my full schedule and the publication of

written communications on a daily basis . . . Scott Pruitt is

taking the absolute opposite approach. Pruitt operates in

secrecy.

In an interview with HuffPost, former New Jersey Governor and chairman of the 9/11 Commission, Tom Kean, is also troubled by Pruitt's fixation with secrecy. I think this New York Times op-ed makes his opinion clear. He writes:

[T]o satisfy his penchant for secrecy, [Pruitt] is

installing--at a cost of nearly $25,000 to taxpayers--a

secure phone booth in his Washington office to keep people,

including staff members, in the dark.

Imagine that. While demanding massive cuts to EPA's budget, Pruitt is spending thousands of dollars to build himself, like Maxwell Smart, a cone of silence. He doesn't run the CIA. He doesn't run the FBI. He doesn't even run the State Department. What possible purpose could this very expensive, secure phone booth have at the Environmental Protection Agency?

Governor Kean believes Pruitt is doing this to keep his own staff members in the dark, which begs the question: What does Pruitt have to hide from his own staff? It sounds like a question my Republican colleagues on EPW should ask him tomorrow.

Pruitt's wasteful spending isn't just limited to his cone of silence. As Governor Kean points out, Pruitt has used private jets costing taxpayers another $58,000. His princely habits have even prompted questions from Senator Grassley. So I ask my EPW Republican colleagues: If Senator Grassley is troubled by Pruitt's wasteful spending of taxpayers' money on personal luxuries, shouldn't you ask him about it at tomorrow's hearing?

Pruitt's penchant for secrecy goes well beyond the expensive cone of silence that was designed to keep his own staff in the dark. It also extends to his schedule, where he tries to keep the American people in the dark. Unlike Ruckelshaus and previous EPA Administrators, Pruitt will not even disclose whom he is meeting or when he is traveling. As Governor Kean notes, our only idea of the folks he is meeting comes from the Freedom of Information Act. Once EPA finally released the first few months of Pruitt's calendars in response to a FOIA request, that is when we learned he was meeting with scores of industry fat cats and almost no environmental groups.

As for his travels, we only find out about them after the fact, which of course prevents the press from covering Pruitt, say, when he jets off to Morocco to lobby for American natural gas producers. One of my Republican colleagues on EPW might want to ask Pruitt why he is jetting around the world playing Commerce Secretary for the fossil fuel industry when he should be working here at home in America to protect people's health and their environment.

What does Governor Kean have to say about Pruitt's industry ties? ``He has elevated cronyism to new heights.'' Those are Governor's Kean's words, not mine.

In an interview with HuffPost just this past Friday, Mr. Ruckelshaus echoed this concern that Pruitt cares more about his political ties than protecting the environment. ``He's just like Trump,'' Ruckelshaus said. ``He's got an ideological approach to it, an approach that affects the large contributors in his party in Oklahoma.''

Here again, Republican colleagues on EPW might want to ask Pruitt about his close ties with industry and whether he is working for the fossil fuel interests that donated hundreds of thousands of dollars to his political activities back in Oklahoma or working for the American people. Governor Kean goes on to say that Pruitt ``built his

political career by attacking clean-air and clean-water rules'' and that he is ``blocking scientific input,'' which brings us to science.

Science, of course, gives society its headlights to look ahead and see oncoming hazards. Without science, if we ignore it or block it, as Governor Kean says Pruitt is doing, the decisions we make are simply uninformed and irrational, and Governor Kean and I aren't the only ones who think this.

Yet another high-profile Republican, the former New Jersey Governor and George W. Bush EPA Administrator, Christine Todd Whitman, agrees. Pruitt claims he will pursue so-called ``red team/blue team'' exercises instead of the long-established gold standard peer review process for rigorously evaluating science. Governor Whitman sees right through that.

[D]ecisions must be based on reliable science. The red team

begins with his politically preferred conclusion that climate

change isn't a problem, and it will seek evidence to justify

that position. That's the opposite of how science works.

Pruitt doesn't want to follow the scientific method, at least not when it comes to climate science or any other science, for that matter, that his industry backers object to. He wants to fabricate a case for his industry backers' politically preferred hypothesis. This isn't science. This is a counterfeit of science. As Governor Whitman writes, ``True science follows the evidence. . . . Government bases policy on those results. This applies to liberals and conservatives alike,'' or at least that is the way it used to be before Scott Pruitt turned the keys over to polluting industries.

So, EPW Republicans, there is another question for you to ask Pruitt tomorrow: How does he justify throwing out the real scientists and the real science in order to arrive so predictably at the fossil fuel industry's preferred conclusions?

Governor Whitman calls Pruitt's climate denial scheming ``a waste of the government's time, energy, and resources, and a slap in the face to fiscal responsibility and responsible governance.'' It is, in her words, ``shameful,'' ``unjustifiable,'' and a ``wild goose chase.'' It sounds like more great questions for EPW Republicans to ask Pruitt tomorrow: How does he justify spending taxpayers' money on his backers' climate denial schemes.

This question is particularly relevant in light of Pruitt's campaign to radically cut EPA's budget and staff. Under his tenure, EPA staff has been reduced to the lowest level in more than 30 years. EPW Republicans, take note because here is another question you can ask Pruitt tomorrow: How can he justify spending taxpayer money on frivolities like his Maxwell Smart cone of silence or personal luxuries like exorbitant private travel or crazy climate denial schemes all while demanding drastic cuts to the people who do the real work of protecting the public at his Agency?

In an interview, Governor Whitman said she ``would like to see [EPA's] budget have enough in it to ensure we are enforcing the regulations we have in place,'' a fairly conservative notion. As she notes, EPA enforcement actions are slowing down ``in some instances fairly dramatically because they've cut the budget for the number of enforcement agents.'' You can't do cleanups or police polluters without money and people, both of which Pruitt is looking to cut. Simply put, Pruitt's so-called back-to-basics campaign is a smokescreen to hide his attempts to gut the Agency he is supposed to lead because it will make his industry backers happy.

Once again, I ask my EPW Republican colleagues: Will you confront Pruitt about his sham promises to get back to basics while he is really just cutting staff and resources and reducing enforcement?

Governor Kean speaks for many Americans when he writes, ``For the sake of our children's health, it's time for Scott Pruitt to go.'' When you are hearing that from the Republican side, it is worth listening.

Pruitt's tenure at the EPA has been an unmitigated disaster for public health, for the environment, and for the future of the planet we call home. Its only value is if you have some peculiar connoisseur interest in government corruption to watch all the many ways in which industry can work its will within its supposed regulator.

Tomorrow, those of us who sit on the Environment and Public Works Committee have an important opportunity to put the Senate's oversight authority to good use and expose how badly Pruitt is in the pocket of the polluters he is supposed to police. I sincerely hope that my Republican colleagues on EPW will seize the opportunity. You can be sure that my Democratic colleagues and I will.

I yield the floor.

Sen. Mazie K. HironoD-HI · Jan 29, 2018

Madam President, I would like to thank my friend Senator Murray for organizing this block of time for us--you have just heard from Senator Warren--and for all the work Senator Murray has done to…

Madam President, I would like to thank my friend Senator Murray for organizing this block of time for us--you have just heard from Senator Warren--and for all the work Senator Murray has done to fight for women all across the country.

Today's debate is the latest battle in the continuing assault on a women's constitutionally protected right to an abortion. As decided by the Supreme Court in Roe and reaffirmed in Casey, the right to an abortion is rooted fundamentally in a women's right to privacy, but the Supreme Court's recognition of this constitutionally protected right has not prevented continuous efforts to limit that right.

I ask my Republican colleagues who are on a mission to limit a woman's constitutional right to choose: What is more private than a person's right to her own body--not just to control her body but to literally own her body? What could be more private than that? That is what is at stake as we debate the bill before us today.

My home State of Hawaii was the first State in the country to legalize abortion, and it continues to be at the forefront of protecting, expanding, and preserving this constitutional right. But for every law we fought to pass, we have had to fight just as hard to beat back a wide range of anti-choice legislation.

Republican-controlled State legislatures have enacted hundreds of limitations on choice. These efforts have not abated in the States or even in Congress. Courts have deemed many of these laws unconstitutional. That is why Donald Trump and the entire conservative movement have prioritized selecting, appointing, and confirming judges who are ideologically sympathetic to their views on choice.

The Trump administration is also eroding this right through Executive action. In one prominent example last year, a senior official at the Department of Health and Human Services went to court to impose his own ideological views to prevent a young woman in his care from obtaining an abortion after forcing her to undergo anti-abortion counseling. Fortunately, the DC Circuit Court stopped this official from forcing this young woman to be pregnant against her will.

The Republican Congress is complicit as well. Over the past 7 years of Republican control, the House and Senate voted to defund Planned Parenthood more than 20 times.

I understand that this is an emotionally charged issue and that each of us has strongly held and sincere positions, but it really shouldn't be too much to ask for my colleagues to stay out of my private life and the private lives of women all across the country. That is called respecting each other's views. Why should we institutionally force other people who do not share your views to basically have to live with your version of the choices that we all ought to be able to make in our lives?

The bill we are debating today would jeopardize the health and safety of women by establishing a nationwide ban on abortion care after 20 weeks. This bill is arbitrary, and it is not meaningfully different from the Arizona law deemed unconstitutional by the Ninth Circuit in 2014, a case that the Supreme Court let stand.

This bill fails to account for the reasons why a woman might seek an abortion after 20 weeks, and it restricts the ability of women to make the best decisions for themselves and their families.

This bill includes no exception allowing for abortion in the case where the pregnancy is a risk to the woman's health. Instead, a doctor would only be able to provide care after establishing that a woman would die--would die--or suffer life-threatening injuries without an abortion. How cruel can this bill be that the only exception is when a woman is about to die before she can get the care she needs?

To make matters worse, this bill places additional burdens on women who survive the horrors of sexual assault. Under this bill, a sexual assault survivor must provide written proof she had obtained counseling or medical treatment to receive an abortion. However, a woman's own OB/ GYN could not provide this counseling if he or she provides abortion services or, even worse, has a practice that provides them.

Adult women who are able to qualify under these outrageous conditions would still have to wait 48 hours before they could receive abortion care.

If the survivor is a minor, the law establishes an additional burden to prove she reported the crime to the authorities. According to the Department of Justice, only 35 percent of women who are raped and sexually assaulted report the crime to the police.

Victims of incest who are over 18 would also not be specifically permitted an exception under this bill.

This legislation would even threaten doctors with fines and/or imprisonment for providing abortion services to women who do not meet the bill's narrow exceptions after 20 weeks.

But the outrage doesn't end there. This bill does not contain an exception for cases where a woman's fetus is not developing properly and has no chance at living after birth. Many of the women in these circumstances desperately wanted the pregnancies they are choosing to terminate.

Last year, I read a moving account from Meredith Isaksen, an English instructor at Berkeley City College, who shared her personal and heartbreaking story in an essay in the New York Times.

I ask unanimous consent that a copy of her essay be printed in the Record.

Meredith was 21 weeks pregnant when she learned that her second baby boy was missing half of his heart. It had stopped growing properly at around 5 weeks, but it wasn't detectable until her 20-week anatomy scan. Meredith's decision to terminate her pregnancy was an agonizing one, but as she weighed her options, she reflected on the meaning of compassion, and she said:

For us, the decision was about compassion for our unborn

baby, who would face overwhelming and horribly painful

obstacles. Compassion for our 2-year-old son, who would

contend with hours upon hours in a hospital, missing out on

invaluable time spent with his parents, and the death of a

very real sibling. It was about compassion for our marriage.

Perhaps most important, it was about our belief that

parenthood sometimes means we sacrifice our own dreams so our

children don't have to suffer.

Meredith asserted--and I agree--that our government has no place in the anguish that accompanied her decision to have an abortion.

Meredith closed her essay with a very poignant reflection on her own experience 2 years later. She wrote:

Saying goodbye to our boy was the single most difficult and

profound experience of my life, and the truth is, it has come

to define me. Today I am a better mother because of him. I am

a better wife, daughter and friend. He made me more

compassionate and more patient. He taught me to love with

reckless abandon, despite the knowledge that I could lose it

all.

Meredith and her husband named him Lev, the Hebrew word for ``heart.''

Meredith was fortunate in that she lived in a State that permitted abortions past 20 weeks. Thirteen States have established a 20-week abortion ban, and the women living in those States have suffered as a result. Think about all the Merediths in those 13 States and many others.

Recently, I heard from Dr. Ghazaleh Moayedi, an OB/GYN who has practiced medicine in Texas, which has a 20-week abortion ban, and in Hawaii, a State that has strong protections for women seeking to exercise their constitutional right to an abortion. Her experience clarifies why it is so urgent that we defeat this bill.

Dr. Moayedi shared a story of a young woman in her town who sought medical treatment at a medical provider after her water broke at 22 weeks. This was in Texas. Although she desperately wanted her pregnancy, her fetus was not viable outside the womb. Because of the Texas law, this patient's doctors were unable to counsel her on all medically appropriate options, such as immediate delivery. As she became increasingly ill, the patient requested an abortion to prevent her condition from getting worse. The doctors on her case refused. After spending 2 weeks in a hospital intensive care unit, this woman was transferred to Dr. Moayedi's care, where she ultimately had to have both her hands and feet amputated due to severe infection. She also lost her baby.

Dr. Moayedi recently moved from Texas to Hawaii, where she now provides lifesaving abortion care to women at all stages of pregnancy.

Recently, Dr. Moayedi had a patient with a desired pregnancy who was flown in from a neighbor island for management of her pre-viable labor. Despite the expert, specialist care she received, the patient's water broke at 22 weeks. At that point, there was nothing Dr. Moayedi could do to prevent labor. Because abortion is legal after 20 weeks in Hawaii, Dr. Moayedi was able to provide lifesaving abortion care for her patient and prevent her from developing a massive infection.

Dr. Moayedi put it plainly in her note: ``Restrictions on abortion care endanger the lives of my patients.''

``Restrictions on abortion care endanger the lives of my patients.'' And that is exactly what this bill will do. It will endanger the lives of millions of women in this country who do not--who do not--make the decision to have an abortion after 20 weeks lightly. As my colleague from Massachusetts said, most abortions take place before 20 weeks.

We are passing a cruel, unconscionable, and indeed unconstitutional law. Why are we doing that? Why these continuing attacks on a woman's health, her economic well-being, and her ability to control her own body?

I urge my colleagues to join me in opposing this unconscionable bill.

Madam President, I yield the floor.

Sen. Lindsey GrahamR-SC · Jan 29, 2018

Mr.President, I ask unanimous consent to complete my remarks. Mr. President, I want to thank all of my colleagues on this side of the aisle who have joined in this debate and are having their voices…

Mr.President, I ask unanimous consent to complete my remarks.

Mr. President, I want to thank all of my colleagues on this side of the aisle who have joined in this debate and are having their voices heard. You are on the right side of history. You are where America will be. It is just a matter of time until we get there.

To my colleagues on the other side, I appreciate your passion, but I think you are on the wrong side of history.

What we are trying to do here today is to proceed to a bill. It is called a motion to proceed. But I think what we are trying to do is proceed to a better America. We are one of seven nations on the entire planet to allow abortion on demand after 20 weeks; that is, the fifth month of pregnancy.

What do we know about unborn children at that stage of development? We know that for a doctor to operate on that unborn child, they provide anesthesia because it hurts the child, and no doctor wants to hurt the child in an effort to save the child's life. Listen to what I said. Medical practice dictates that if you are going to operate on a 20- week-old, unborn child, you provide anesthesia because science tells us that the baby can feel pain.

Can you only imagine the pain it will feel from abortion? There is a reason that there are only seven countries in the world that allow this. The question for America is, Do we want to stay in this club or do we want to get out? I want out.

Twenty States have a version of this bill, and more are taking it up as I speak. When informed of what we are trying to do, the majority of pro-choice people support this. Abortion is a divisive issue, and it is an emotional issue, but in the fifth month of pregnancy, I think most Americans are going to side with what we are trying to do--stopping abortion on demand in the fifth month.

Does it make us a better nation? I would say it does not.

So we are trying to proceed to make sure that America will be a better place and that we become part of the mainstream of the world when it comes to protecting unborn children after the fifth month of pregnancy.

If you look at a medical encyclopedia and read about the birthing process, parents are encouraged in the fifth month to sing to a child because the child will begin to associate your voice with you. Read it. There is literature of all kinds stating what you should do in the fifth month to enhance the relationship between you and your unborn child.

We do allow exceptions to save the life of the mother. It is a terrible situation when we have to pick between the mother and child, and there is an exception for that situation. The result of rape or incest if the child was a minor--when it comes to a pregnancy caused by a rape, we require that the law enforcement authorities be notified of the rape before the abortion, not at the time it occurred, and I think most Americans would want people to come forward and report rape.

It is a difficult situation, but we have commonsense exceptions, and this is a commonsense bill designed to change America in a commonsense way. It is a motion to proceed to put us in better standing as a nation in the world at large, I believe. It is also a motion to withdraw-- withdraw from the club of seven nations that allows abortion on demand at a time when doctors can save the baby's life, but to do so they have to provide anesthesia because that baby can feel so much pain.

Savannah Duke is a young lady in South Carolina. She is 17 years old. She goes to high school in Spartanburg, SC. She does all the things that a 17-year-old would do. She is an incredibly gifted young lady. At 20 weeks, it was discovered that she was missing a leg, and the doctors feared she would have severe birth defects. Her parents, Wendy and Scott, when deciding what to do, could see the baby move, and they decided not to opt for an abortion. She is in high school today.

There is Micah from Iowa, as you probably heard from Senator Ernst, who has been a stalwart on this issue. He was born at 20 weeks and is alive today to tell about it.

This is not about medical viability. Roe v. Wade says that there is a compelling State interest to protect the unborn at medical viability. I would argue that the difference between medical viability in 1973 and 2018 is enormous. What we are trying to do is provide a new theory to protect the unborn, and it goes something like this: Can a legislative body prohibit an abortion on demand at a time when science tells us that the baby feels excruciating pain, at a time when science tells us that parents should sing to their child, at a time when science tells us that a baby has well-connected tissues and can feel pain and, on occasion, can also survive? My answer is yes; it is OK for Congress and State legislators to pass laws saying that in the fifth month, we are going to disallow abortion on demand. There will be exceptions, but they will be rare. There are 10,000 cases every year that are protected by this law.

So what are we trying to do? We are trying to proceed forward to a better day in America. We are trying to get out of a club where there are only six other members. We are trying to reconcile the law with science.

To my friends on the other side who talk about science a lot, count me in. Science is very important. We should listen to our scientists. When it comes to climate change, I do. I am convinced that climate change is real.

You should listen to what doctors tell you about the unborn child in the fifth month. You should listen to what medical science is able to do to save the child's life. You should listen to the stories of people who actually make it at 20 weeks. You should understand that excruciating pain is felt by an unborn child in the fifth month, and America does not want to be in the club of seven countries that allow abortion on demand.

I don't know where the vote will turn out. It is probably going to be short of 60, but to those who believe in this issue, we will be back for another day. We are never going to give up until we get America in a better place. The better place, I think, would be having a country that recognizes that, in the fifth month of pregnancy, the law will be there for the child, because science is on the child's side, and we will reconcile our laws to science.

We know what science says about a baby in the fifth month. We know what the law says: They can be aborted on demand. I think there is a disconnect, not only between science and law but between what is right and where we are today. I just don't see how this makes us a better nation, to continue this practice of allowing babies to be aborted on demand in the fifth month of pregnancy when we know they feel a lot of pain. I just don't see how that makes us a better nation. We will get there, Mr. President, with your help and the help of others.

A majority of the American people are on our side when they understand what we are trying to do. There are 20 States who have some version of this, and it is just a matter of time until most States will.

As to this debate, I don't think it is a waste of time. I want to do two things. I want to get out of the club of seven nations that allow abortion on demand of babies that feel excruciating pain when they are operated on to save their lives, and I can work on behalf of the Dreamers, too. I can do two things at once. I can talk about getting America in a better spot when it comes to babies during the fifth month of pregnancy and finding a better life for Dreamers. I think it is kind of odd that somehow you can't do one without the other.

I want all of these Dream Act kids--young adults now--to stay in the country they know. They have no other place to go. On average, they were brought here at the age of 6 and, if you told them to go home, it wouldn't be some foreign country. It would be the home they were raised in and the life they know. So it makes perfect sense to me that we should be trying to find a solution to secure our border and fix a broken immigration system and deal compassionately with millions of young people who, through no fault of their own, have no place else to go but America.

It also makes sense to me that we can talk about this issue at the same time and that we as a nation will rise to the occasion and withdraw from a club where there are only six other nations on the planet that allow a baby to be aborted in the fifth month of pregnancy at a time when that child can feel excruciating pain and young parents are encouraged to sing to the child. If science urges you to sing to the child, I want the law to stop an abortion unless there is a darn good reason. Our time will come, for the Dreamers as well as the baby. Our time will come.

I yield the floor.

I suggest the absence of a quorum.

Sen. Ben SasseR-NE · Jan 29, 2018

Madam President, as we consider this legislation to protect 20-week-old babies who feel pain, I want to ask my friends in this body to put aside whip counts and score cards, politics and reelection,…

We love beauty. Beauty calls us. Beauty inspires us. Beauty captivates us. It is part of what makes us human. It is not surprising that there is almost nothing more universal on this Earth, almost nothing more beautiful, than our natural impulse to care for a little baby.

We all start in the same place--vulnerable and dependent in every way. We all ``ooh'' and ``aah'' over sonogram pictures of our children, our grandchildren, our nieces, our nephews, even sonogram pictures from a stranger on a bus or a plane. We all ``ooh'' and ``aah'' in the same way. When we look at those pictures, we love. We love. You don't have to be taught this. You don't have to be conditioned to love. You don't have to be conditioned to know that we should help the vulnerable. This isn't because of economics. This isn't because of politics. We love because they are babies. You don't need anyone to explain this to you. Every one of us has experienced this when we have seen the sonogram pictures. We should note that this love is not just a feeling; it is also built on and backed up by facts.

As we consider whether these unborn babies--having been carried by their mamas for almost 5 months--deserve legal protection, whether they deserve our protection, we should think, too, about the science and what is becoming clearer year by year and month by month.

I want to associate myself with the comments of the Senator from Montana who preceded me. A huge part of why the millennials are becoming more pro-life than the two generations older than they are is because they are seeing these sonogram images, and it is changing them year by year and month by month.

I have been on the floor for about 45 minutes today, and I have heard many claims about polling and facts that just aren't true. I am not here to argue this case and argue how we should vote on this legislation because of polls; I am here because we should all love babies. That is why we should be doing this. But just at the level of polling, there have been claims on the floor today that are absolutely not true.

Younger people are becoming more pro-life, as the Senator from Montana said, year over year right now, and it is because of the prevalence and the pervasiveness of sonogram technology. This movement, the pro-life movement, is ascendant, and it is because people are grappling with science, grappling with images, and grappling with the reality of that intrinsic feeling we have to love.

We can and we should appeal to ethics. We can and we should discuss human dignity. We should reaffirm intrinsic value. For now, for this conversation today, we can limit ourselves to just scientific facts. As we consider those facts, I want to respectfully ask my colleagues in this Chamber today, where will we draw the line? No one seriously disputes that the little girl in that image is alive. No one seriously disputes that that little girl is a human being--no one. There is no one in this Chamber and there is no one outside this Chamber who has ever looked at that sonogram image who will come to the floor and say: Do you know the debate I want to have? I want to say that baby is not alive and she is not a human.

Somebody who is going to vote no on the legislation today should come to the floor and make that case, say that is not a life and that is not a human, because it is not true, and no one believes it.

The science is clear. We all know and understand that little baby in that sonogram image is a unique and separate being. We know she has unique DNA from her mother, and she has DNA that is unique from her father. The baby apps are now telling new moms and dads-to-be when that baby is the size of a sesame seed, then a blueberry, and then an apple. With the help of the sonograms, we are now catching pictures of her sucking her thumb, flexing her arms and legs, yawning, stretching, making faces. Here is what is really new the last couple of years: We are catching pictures and images of her responding to voices--familiar voices of other human beings that she is already in community with, people who are called to love her.

As early as 20 weeks postfertilization, which is about halfway through the pregnancy, scientists and our doctors now tell us that this unborn baby can feel pain. In fact, it has become routine procedure of late for us to give unborn and premature infants anesthesia for their fetal surgeries. Why? This is new. We didn't used to do this. Why do we do it? It is because we have new scientific evidence that they feel pain. It turns out that babies who are 20 weeks along in gestation are pain-capable inside mom's uterus.

As Dr. Kanwaljeet Anand testified before the Congress, ``The human fetus possesses the ability to experience pain from 20 weeks gestation, if not earlier, and the pain perceived by the fetus is possibly more intense than that perceived by term newborns.''

Not only can she feel pain, not only do the images show us that she recoils from being poked or prodded, advances in modern medicine are now helping babies who are born at 22 weeks, at 21 weeks, and at 20 weeks postfertilization survive outside the womb. The pain that those babies feel outside the womb is supporting the evidence that those babies also feel pain inside the womb, which leads me to ask my friends: Have our hearts grown cold to truth? Have we become indifferent to questioning our previously held convictions? Are we indifferent to what the science is clearly showing us?

This body, captive to abortion zealot-activists, might be ignoring the sonograms. That might be what is happening in this body today, but the American people are actually listening to the science and the sonograms. Contrary to those bizarre claims that were made on the floor a couple of times over the last hour, a hefty majority--it is not close--of Americans support this legislation, including a supermajority of women, including most young people, including most Independents, and now ticking up just shy of half of all Democrats. This should not be a partisan issue, and in the future, it will not be because more and more people are looking at these images. It is not going to be a partisan issue; it is going to be a bipartisan issue. But you have to tell the truth--that those pictures are pictures of babies, and they are alive, and they deserve our protection. But have our hearts in this body grown cold to the truth?

We should also not forget the mothers because the pro-life message is about being both pro-baby and pro-mother. Late-term abortions are actually not safe, even for the mother. Women seeking abortion after 20 weeks are 35 times more likely to die from an abortion than when done in the first trimester--35 times more likely.

The United States is one of only seven countries on Earth that allow elective abortion after 20 weeks, and we are actually tied with only three other countries as having the most permissive abortion regime on Earth. Do you know who our peers are? North Korea and China. That is who our peers are. If our rhetoric about human rights should mean anything, it should mean we don't want to be on a ``human rights worst'' list with North Korea and China. That is where we are today.

There are many reasonable people who are going to argue against this legislation. They are reasonable in other ways in life, and they want to make an argument about the very complicated issues about abortion in the

first trimester. There are many reasonable people who can have a reasonable debate about that. But when you listen to the arguments being made today, they are not actually grappling with today's legislation; they are talking about abortion in general. But nobody is telling us why we are tied with only China and North Korea as having the most permissive abortion regime on Earth.

My friends, beauty and compassion can stir our hearts, and science and facts should still confirm the truth. This legislation--the actual legislation we are voting on today--is pro-baby, it is pro-mom, and it is pro-science. These little babies, who are capable of feeling pain, deserve legal protection. They deserve our protection. I invite--I beg my colleagues to join in that conviction and to vote yes on this legislation today.

Sen. Mitch McConnellR-KY · Jan 29, 2018

Mr. President, I thank my good friend from Rhode Island. I will not occupy the Senate floor for very long. Recognition of the Majority Leader Mr. President, the community of Benton, KY, is continuing…

Mr. President, I thank my good friend from Rhode Island. I will not occupy the Senate floor for very long.

Recognition of the Majority Leader

Mr. President, the community of Benton, KY, is continuing to pick up the pieces after last week's harrowing shooting.

I wish, once again, to thank our law enforcement and first responders for their heroism, and I would also like to recognize Marshall County Judge-Executive Kevin Neal for his leadership when his community needed it the most.

For most of us, this tragedy is barely even conceivable, but to the parents of Bailey Holt and Preston Cope, it is now a painful reality. Bailey Holt was 15 years old, and her mother said that she had a ``perfect, sweet soul.'' She has been described as compassionate, confident, and comfortable being herself. When she wasn't busy cheering for the University of Louisville Cardinals, Bailey was always ready with a kind word or a friendly gesture for those who needed it.

On social media, her family and friends are using the expression ``Be Like Bailey,'' encouraging everyone who sees it to act with charity.

Preston Cope, who was also 15, was known for being kind, soft-spoken, and a quick learner. He loved reading about history and playing baseball for Marshall County High School and the Calvert City Sluggers. Preston's friends remember his ability to inspire them and to make them laugh.

One of Bailey and Preston's classmates called them ``the nicest people I ever met. They never had anything negative to say. They always had a smile on their face.''

This weekend, friends and family gathered at the high school gym by the hundreds to remember Bailey and Preston and to comfort one another.

As the other injured students fight to recover and the entire Marshall County community continues to grieve and heal, they will have Bailey and Preston's example to draw on and they will have the prayers of their fellow Kentuckians, of us here in the Senate, and of the entire country.

Work of the Senate

Mr. President, on an entirely different matter, a great deal of work remains in the Senate in the coming days. Bipartisan discussions continue on a variety of important issues, including immigration, border security, disaster relief, healthcare, and funding for our Armed Forces. With our February 8 deadline fast approaching, it is vital that we continue these serious and constructive talks.

Last week, the administration provided its framework for immigration legislation. As I noted, it builds upon the four pillars for reform that the President has consistently put forth and indicates what is necessary for him to sign a bill into law. As discussions continue in the Senate on the subject of immigration, Members on both sides of the aisle should look to this framework as they work toward an agreement.

The President's proposal has received praise as a serious effort to solve some of the problems with our broken immigration system. Not surprisingly with a subject this complicated, it has also received criticism from both the right and the left. Constructive critiques are one thing, but the type of irresponsible racial invective used yet again on this subject by the Democratic leader of the House is decidedly unhelpful.

These comments are precisely the kind of divisive partisanship that dim the prospects that a bipartisan compromise could become law. The American people elected us to legislate, not to trade insults. To resolve President Obama's unlawfully established DACA Program and other important issues in immigration, I would urge my Democratic colleagues to put serious, good-faith discussions ahead of cheap, partisan point scoring.

Nomination of David Stras

Mr. President, now on another matter. These negotiations aren't the only important business before us this week. We will also consider another of President Trump's well-qualified judicial nominees, David Stras, of Minnesota, to serve on the U.S. Court of Appeals for the Eighth Circuit. Judge Stras serves as an associate justice of the Minnesota Supreme Court. Three of his former colleagues on that court, now retired, praised him in an open letter last year for his sterling academic record, his considerable experience, and his ability to hear cases ``with objectivity and an open mind.''

Their testimony confirmed Judge Stras's well-known reputation for thoughtfulness, fairness, and intellectual excellence. I look forward to voting to advance his nomination and to send this capable jurist to the Federal bench.

Mr. President, the Senate will vote to take up a measure to ensure that the most vulnerable in our society are granted the protection they deserve under law. The Pain-Capable Unborn Child Protection Act reflects a growing mainstream consensus--mainstream consensus--that unborn children should not be subjected to elective abortion after 20 weeks.

There are only seven countries left in the world that permit this, including,

unfortunately, the United States, along with China and North Korea. It is long past time that we heeded both science and commonsense morality and remove ourselves from this very undistinguished list.

Some refer to this legislation as Micah's Law in honor of a little boy who was born premature at just 22 weeks. Today, Micah Pickering is a healthy 5-year-old boy. He shows what can happen when we give life a chance.

This afternoon, every one of us will go on record on this issue. On the commonsense side of this issue are 63 percent of Americans, according to a recent survey, and every other country in the world, save seven. There is no reason why this should be a partisan issue. I hope our Democratic colleagues will not obstruct the Senate from taking up this bill.

I urge every one of my colleagues to join me in voting to advance it this afternoon.

State of the Union Address

Mr. President, now, on a final matter, the President delivers his first State of the Union Address tomorrow. I am especially looking forward to his remarks on tax reform and the state of our economy. Already hundreds of businesses have announced significant bonuses, pay increases, new jobs, and expanded benefits. Just last week, we learned that Verst Logistics, which is based in Walton, KY, and employs nearly 1,600, has distributed bonuses to full-time employees. The company's CEO told workers: ``I want to be sure that you and your families share in the benefits of your accomplishments and the new tax reform legislation.''

When I hear my Democratic colleagues denigrate tax reform bonuses as ``crumbs,'' I think about workers like these. I think about the Verst worker who came to her boss with tears in her eyes when she received word of her bonus. It was Christmas. She and her husband had recently had their fifth child. Money was tight. Mom and dad had enough saved up to buy gifts for the kids but were planning to skip presents for each other, but tax reform changed that. Thanks to the tax reform bonus she earned, this employee and her husband could go out to a nice dinner and buy each other Christmas gifts after all. The CEO says he has never been hugged so hard in his life.

It is a shame that none of my Democratic colleagues voted for tax reform--not a single one of them--and it is jarring to hear some of them now denigrate the pay increases and the benefits that only wealthy people could deem insignificant. Maybe in San Francisco or New York an extra $500 or $1,000 is no big deal, but try telling that to families in North Dakota, Missouri, and Montana. Try telling that to that mother of five. I suspect you would get an earful.

Tomorrow evening when the President describes tax reform's impact for middle-class Americans, every one of us should stand and applaud.

I yield the floor.

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Placed on Calendar SenateIssued January 17, 2018

Calendar No. 294

115th CONGRESS

2d Session

S. 2311

IN THE SENATE OF THE UNITED STATES

January 16, 2018

Mr. Graham (for himself, Mr. Lankford, Mr. Blunt, Mr. Hatch, Mr. McCain, Mr. Daines, Mr. Scott, Mr. Grassley, Mr. Inhofe, Mr. Cruz, Mr. Lee, Mr. Portman, Mr. Moran, Mr. Sasse, Mr. Boozman, Mr. Perdue, Mr. Cassidy, Mr. Tillis, Mr. Cochran, Mrs. Ernst, Mr. McConnell, Mr. Rounds, Mr. Roberts, Mr. Cotton, Mr. Wicker, Mr. Risch, Mr. Paul, Mr. Cornyn, Mr. Burr, Mr. Barrasso, Mrs. Fischer, Mr. Isakson, Mr. Thune, Mr. Johnson, Mr. Shelby, Mr. Flake, Mr. Enzi, Mr. Young, Mr. Sullivan, Mr. Rubio, Mr. Kennedy, Mr. Corker, Mr. Crapo, Mr. Hoeven, Mr. Toomey, and Mr. Heller) introduced the following bill; which was read the first time

January 17, 2018

Read the second time and placed on the calendar

A BILL

To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes.

Short title

This Act may be cited as the Pain-Capable Unborn Child Protection Act.

Legislative findings

Congress finds and declares the following:

(1)

Pain receptors (nociceptors) 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 20 weeks after fertilization.

(2)

By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.

(3)

In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response.

(4)

Subjection to such 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.

(5)

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. In the United States, surgery of this type is being performed by 20 weeks after fertilization and earlier in specialized units affiliated with children’s hospitals.

(6)

The position, asserted by some physicians, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 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 cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(7)

Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(8)

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.

(9)

Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(10)

The position, asserted by some commentators, 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 surgery.

(11)

Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.

(12)

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 pain.

(13)

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 viability, and neither governmental interest is intended to replace the other.

Pain-capable unborn child protection

(a)

In general

Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following:

1532.

Pain-capable unborn child protection

(a)

Unlawful conduct

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)

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 post-fertilization 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 post-fertilization age.

(2)

Prohibition on performance of certain abortions

(A)

Generally for unborn children 20 weeks or older

Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 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 an abortion in this section, a physician terminating or attempting to terminate a pregnancy under an exception provided by subparagraph (B) may do so only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive.

(D)

Requirement that a physician trained in neonatal resuscitation be present

If, in reasonable medical judgment, the pain-capable unborn child has the potential to survive outside the womb, the physician who performs or attempts an abortion under an exception provided by subparagraph (B) 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 (E).

(E)

Children born alive after attempted abortions

When a physician performs or attempts an abortion in accordance with this section, and the child is born alive, as defined in section 8 of title 1 (commonly known as the Born-Alive Infants Protection Act of 2002), the following shall apply:

(i)

Degree of care required

Any health care practitioner present at the time shall humanely exercise the same degree of professional skill, care, 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 birth.

(ii)

Immediate admission to a hospital

Following the care required to be rendered under clause (i), the child born alive shall be immediately transported and admitted to a hospital.

(iii)

Mandatory reporting of violations

A health care practitioner or any employee of a hospital, a physician’s office, 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 both.

(F)

Documentation requirements

(i)

Documentation pertaining to adults

A physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B)(ii) shall, prior to the abortion, place in the patient medical file documentation from a hospital licensed by the State or operated under authority of a Federal agency, a medical clinic licensed by the State or operated under authority of a Federal agency, from a personal physician licensed by the State, a counselor licensed by the State, 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 rape.

(ii)

Documentation pertaining to minors

A physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B)(iii) shall, prior to the abortion, place in the patient medical file documentation from a government agency legally authorized to act on reports of child abuse that the rape or incest was reported prior to the abortion; or, as an alternative, documentation from a law enforcement agency that the rape or incest was reported prior to the abortion.

(G)

Informed consent

(i)

Consent form required

The physician who intends to perform or attempt to perform an abortion under the provisions of subparagraph (B) may not perform any part of the abortion procedure without first obtaining a signed Informed Consent Authorization form in accordance with this subparagraph.

(ii)

Content of consent form

The Informed Consent Authorization form shall be presented in person by the physician and shall consist of—

(I)

a statement by the physician indicating the probable post-fertilization age of the pain-capable unborn child;

(II)

a statement that Federal law allows abortion after 20 weeks fetal age only if the mother’s life is endangered by a physical disorder, physical illness, or physical injury, when the pregnancy was the result of rape, or an act of incest against a minor;

(III)

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 mother;

(IV)

a statement that in any case in which an abortion procedure results in a child born alive, Federal law requires that child to be given every form of medical assistance that is provided to children spontaneously born prematurely, including transportation and admittance to a hospital;

(V)

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 followed; and

(VI)

affirmation that each signer has filled out the informed consent form to the best of their knowledge and understands the information contained in the form.

(iii)

Signatories required

The Informed Consent Authorization form shall be signed in person by the woman seeking the abortion, the physician performing or attempting to perform the abortion, and a witness.

(iv)

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 file.

(H)

Requirement for data retention

Paragraph (j)(2) of section 164.530 of title 45, Code of Federal Regulations, shall apply to documentation required to be placed in a patient’s medical file pursuant to subparagraph (F) of subsection (b)(2) and a consent form required to be retained in a patient’s medical file pursuant to subparagraph (G) of such subsection in the same manner and to the same extent as such paragraph applies to documentation required by paragraph (j)(1) of such section.

(I)

Additional exceptions and requirements

(i)

In cases of risk of death or major injury to the mother

Subparagraphs (C), (D), and (G) shall not apply if, in reasonable medical judgment, compliance with such paragraphs would pose a greater risk of—

(I)

the death of the pregnant woman; or

(II)

the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.

(ii)

Exclusion of certain facilities

Notwithstanding the definitions of the terms medical treatment and counseling in subsection (g), the counseling or medical treatment described in subparagraph (B)(ii) may not be provided by a facility that performs abortions (unless that facility is a hospital).

(iii)

Rule of construction in cases of reports to law enforcement

The requirements of subparagraph (B)(ii) 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 personnel.

(iv)

Compliance with certain State laws

(I)

State laws regarding reporting of rape and incest

The physician who performs or attempts to perform an abortion under an exception provided by subparagraph (B) shall comply with such applicable State laws that are in effect as the State’s Attorney General may designate, regarding reporting requirements in cases of rape or incest.

(II)

State laws regarding parental involvement

The physician who intends to perform an abortion on a minor under an exception provided by subparagraph (B) shall comply with any applicable State laws requiring parental involvement in a minor’s decision to have an abortion.

(c)

Criminal penalty

Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.

(d)

Bar to prosecution

A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 of this title based on such a violation.

(e)

Civil remedies

(1)

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 may, in a civil action against any person who committed the violation, obtain appropriate relief.

(2)

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 (b)(2)(B), and that was performed in violation of any provision of this section may, in a civil action against any person who committed the violation obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct.

(3)

Appropriate relief

Appropriate relief in a civil action under this subsection includes—

(A)

objectively verifiable money damages for all injuries, psychological and physical, occasioned by the violation;

(B)

statutory damages equal to three times the cost of the abortion; and

(C)

punitive damages.

(4)

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 subsection.

(5)

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 frivolous, the court shall award a reasonable attorney’s fee in favor of the defendant against the plaintiff.

(6)

Awards against woman

Except under paragraph (5), in a civil action under this subsection, no damages, attorney’s fee or other monetary relief may be assessed against the woman upon whom the abortion was performed or attempted.

(f)

Data collection

(1)

Data submissions

Any physician who performs or attempts an abortion described in subsection (b)(2)(B) shall annually submit a summary of all such abortions to the National Center for Health Statistics (hereinafter referred to as the Center) not later than 60 days after the end of the calendar year in which the abortion was performed or attempted.

(2)

Contents of summary

The summary shall include the number of abortions performed or attempted on an unborn child who had a post-fertilization age of 20 weeks or more and specify the following for each abortion under subsection (b)(2)(B):

(A)

the probable post-fertilization age of the unborn child;

(B)

the method used to carry out the abortion;

(C)

the location where the abortion was conducted;

(D)

the exception under subsection (b)(2)(B) under which the abortion was conducted; and

(E)

any incident of live birth resulting from the abortion.

(3)

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 1996 (42 U.S.C. 1320d–2 note).

(4)

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 subsection. 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 attempted. The annual report shall be issued by July 1 of the calendar year following the year in which the abortions were performed or attempted.

(g)

Definitions

In this section the following definitions apply:

(1)

Abortion

The term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device—

(A)

to intentionally kill the unborn child of a woman known to be pregnant; or

(B)

to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than—

(i)

after viability to produce a live birth and preserve the life and health of the child born alive; or

(ii)

to remove a dead unborn child.

(2)

Attempt

The term attempt, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.

(3)

Counseling

The term counseling means counseling provided by a counselor licensed by the State, or a victims rights advocate provided by a law enforcement agency.

(4)

Facility

The term facility means any medical or counseling group, center or clinic and includes the entire legal entity, including any entity that controls, is controlled by, or is under common control with such facility.

(5)

Fertilization

The term fertilization means the fusion of human spermatozoon with a human ovum.

(6)

Medical treatment

The term medical treatment means treatment provided at a hospital licensed by the State or operated under authority of a Federal agency, at a medical clinic licensed by the State or operated under authority of a Federal agency, or from a personal physician licensed by the State.

(7)

Minor

The term minor means an individual who has not attained the age of 18 years.

(8)

Perform

The term perform, with respect to an abortion, includes inducing an abortion through a medical or chemical intervention including writing a prescription for a drug or device intended to result in an abortion.

(9)

Physician

The term physician means a person licensed to practice medicine and surgery or osteopathic medicine and surgery, or otherwise legally authorized to perform an abortion.

(10)

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 ovum.

(11)

Probable post-fertilization age of the unborn child

The term probable post-fertilization age of the unborn child means what, in reasonable medical judgment, will with reasonable probability be the post-fertilization age of the unborn child at the time the abortion is planned to be performed or induced.

(12)

Reasonable medical judgment

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.

(13)

Unborn child

The term unborn child means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive as defined in section 8(b) of title 1.

(14)

Woman

The term woman means a female human being whether or not she has reached the age of majority.

(b)

Clerical amendment

The table of sections at the beginning of chapter 74 of title 18, United States Code, is amended by adding at the end the following new item:

1532. Pain-capable unborn child protection.

(c)

Chapter heading amendments

(1)

Chapter heading in chapter

The chapter heading for chapter 74 of title 18, United States Code, is amended by striking Partial-Birth Abortions and inserting Abortions

(2)

Table of chapters for part i

The item relating to chapter 74 in the table of chapters at the beginning of part I of title 18, United States Code, is amended to read as follows:

74. Abortions1531

January 17, 2018

Read the second time and placed on the calendar