Delaware ‘Pain-Capable Unborn Child Protection Act’ (SB 205)

SB 205 would prohibit performing or inducing an abortion unless the physician first makes a determination of the probable post-fertilization age of the fetus, except in cases of a medical emergency.

The bill would ban abortions at 20 weeks post-fertilization unless, in the physician’s reasonable medical judgment, an abortion is necessary to prevent serious health risk to the pregnant person.

The bill states that no condition may be deemed a medical emergency arises if it is based on a claim or diagnosis that the patient will engage in conduct that may result in their death or in substantial and irreversible physical impairment of a major bodily function.

The bill also states that an abortion performed after 20 weeks must be performed in a manner that provides the best opportunity for the fetus to survive, unless in the physician’s reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of death or substantial and irreversible physical impairment of a major bodily function than would another method. No such greater risk would exist if it is based on a claim or diagnosis that the patient will engage in conduct which will result in her death or in substantial and irreversible physical impairment of a bodily function.

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The bill includes legislative findings based on junk science that a fetus can feel pain at 20 weeks.

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Penalties

Any person who intentionally or recklessly performs or induces or attempts to perform or induce an abortion in violation of this Act would be guilty of a class D felony.

Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this provision would be subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

Physician Reporting Requirements

Abortion providers would be required to report certain information for each procedure to the department, including:

• probable post-fertilization age:
  • if the determination of probable post-fertilization age was made, whether an ultrasound was used, and the week of probable post-fertilization age determined;
  • if a determination of probable post-fertilization age was not made, why not—what was the basis for a determination that a medical emergency existed;
• method of abortion;
• if the probable post-fertilization age was 20 weeks or more, the basis for a determination that a medical condition necessitated an immediate abortion to avert the patient’s death or serious injury;
• if the probable post-fertilization age was 20 weeks or more and an abortion was performed, whether the method performed provided the best opportunity for the fetus to survive, and if not, why not.

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Related Legislation

Based on model legislation drafted by the National Right to Life Committee.

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People

Organizations

• National Right to Life Committee — Drafted Model Law