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108th CONGRESS
2d Session
H. R. 4420
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 20, 2004
Mr. Smith of New Jersey (for himself, Mr. Hyde, Mrs. Jo Ann Davis of
Virginia, Mr. Alexander, Mr. Pitts, Mrs. Myrick, Mr. Souder, Mr.
Burgess, Mr. Lincoln Diaz-Balart of Florida, Ms. Ros-Lehtinen, Mr.
Aderholt, Mr. Tiahrt, Mr. Crane, Mr. Neugebauer, Mr. Franks of Arizona,
Mr. Istook, Mr. Akin, Mr. Stearns, Mr. Renzi, Mr. Shimkus, Mr. Pence,
Mr. DeMint, Mr. Collins, Mr. Brady of Texas, Mr. King of Iowa, Mr.
Tancredo, Mr. Ryun of Kansas, and Mr. Toomey) introduced the following
bill; which was referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To ensure that women seeking an abortion are fully informed regarding
the pain experienced by their unborn child.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unborn Child Pain Awareness Act of
2004''.
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 (DE) 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.
``In this title:
``(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.--
``(A) Oral statement.--
``(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 __ 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 Federal Unborn Child Pain
Awareness Act of 2004, 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 women 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 drug 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.
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