II
117th CONGRESS
1st Session
S. 123
IN THE SENATE OF THE UNITED STATES
January 28, 2021
Mr. Sasse (for himself, Mr. Barrasso, Mrs. Blackburn, Mr. Blunt, Mr. Boozman, Mr. Braun, Mr. Burr, Mr. Cassidy, Mr. Cornyn, Mr. Cotton, Mr. Cramer, Mr. Crapo, Mr. Cruz, Mr. Daines, Ms. Ernst, Mrs. Fischer, Mr. Graham, Mr. Grassley, Mr. Hagerty, Mr. Hawley, Mr. Hoeven, Mrs. Hyde-Smith, Mr. Inhofe, Mr. Johnson, Mr. Kennedy, Mr. Lankford, Mr. Lee, Ms. Lummis, Mr. Marshall, Mr. McConnell, Mr. Moran, Mr. Paul, Mr. Portman, Mr. Risch, Mr. Rounds, Mr. Romney, Mr. Rubio, Mr. Scott of Florida, Mr. Scott of South Carolina, Mr. Shelby, Mr. Sullivan, Mr. Thune, Mr. Tillis, Mr. Toomey, Mr. Wicker, and Mr. Young) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend title 18, United States Code, to prohibit a health care practitioner from failing to exercise the proper degree of care in the case of a child who survives an abortion or attempted abortion.
Short title
This Act may be cited as the Born-Alive Abortion Survivors Protection Act
.
Findings
Congress finds the following:
If an abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of the United States, and entitled to all the protections of such laws.
Any infant born alive after an abortion or within a hospital, clinic, or other facility has the same claim to the protection of the law that would arise for any newborn, or for any person who comes to a hospital, clinic, or other facility for screening and treatment or otherwise becomes a patient within its care.
Born-alive infants protection
Requirements pertaining to born-Alive abortion survivors
Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following:
Requirements pertaining to born-alive abortion survivors
Requirements for health care practitioners
In the case of an abortion or attempted abortion that results in a child born alive:
Degree of care required; immediate admission to a hospital
Any health care practitioner present at the time the child is born alive shall—
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 any other child born alive at the same gestational age; and
following the exercise of skill, care, and diligence required under subparagraph (A), ensure that the child born alive is immediately transported and admitted to a hospital.
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 paragraph (1) shall immediately report the failure to an appropriate State or Federal law enforcement agency, or to both.
Penalties
In general
Whoever violates subsection (a) shall be fined under this title, imprisoned for not more than 5 years, or both.
Intentional killing of child born alive
Whoever intentionally performs or attempts to perform an overt act that kills a child born alive described under subsection (a), shall be punished as under section 1111 of this title for intentionally killing or attempting to kill a human being.
Bar to prosecution
The mother of a child born alive described under subsection (a) may not be prosecuted for a violation of this section, an attempt to violate this section, a conspiracy to violate this section, or an offense under section 3 or 4 of this title based on such a violation.
Civil remedies
Civil action by a woman on whom an abortion is performed
If a child is born alive and there is a violation of subsection (a), the woman upon whom the abortion was performed or attempted may, in a civil action against any person who committed the violation, obtain appropriate relief.
Appropriate relief
Appropriate relief in a civil action under this subsection includes—
objectively verifiable money damage for all injuries, psychological and physical, occasioned by the violation of subsection (a);
statutory damages equal to 3 times the cost of the abortion or attempted abortion; and
punitive damages.
Attorney’s fee for plaintiff
The court shall award a reasonable attorney’s fee to a prevailing plaintiff in a civil action under this subsection.
Attorney’s fee 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.
Definitions
In this section the following definitions apply:
Abortion
The term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device—
to intentionally kill the unborn child of a woman known to be pregnant; or
to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than—
after viability, to produce a live birth and preserve the life and health of the child born alive; or
to remove a dead unborn child.
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.
Born alive
The term born alive has the meaning given that term in section 8 of title 1, United States Code (commonly known as the Born-Alive Infants Protection Act
).
.
Conforming amendments
The table of sections for chapter 74 of title 18, United States Code, is amended by adding at the end the following:
1532. Requirements pertaining to born-alive abortion survivors.
.
The chapter heading for chapter 74 of title 18, United States Code, is amended by striking Partial-Birth Abortions
and inserting Abortions
.
The table of chapters for part I of title 18, United States Code, is amended by striking the item relating to chapter 74 and inserting the following:
.
Effective date
This Act shall take effect one day after the date of enactment.