New Jersey Pain-Capable ‘Unborn Child’ Protection Act (S 2026)

S 2026 would prohibit performing or inducing an abortion unless the physician first makes a determination of the probable gestational age of the fetus or has reasonably relied on a determination made by another physician.

The bill would ban abortions at 20 weeks post-fertilization unless, in the physician’s reasonable medical judgment, an abortion is necessary to save the life of a pregnant women 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 a psychological or emotional condition.

The bill includes an exception for rape if the rape is reported to law enforcement. The bill also includes an exception for incest against a minor, if the incest is reported to law enforcement or Division of Child Protection and Permanency in the Department of Children and Families.

The bill also states that an abortion performed after 20 weeks must be performed in a manner that provides the best opportunity for the “unborn child” 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.

Born-Alive Requirements

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 would need to ensure a second physician trained in neonatal resuscitation is present and prepared to provide care to the child consistent with the following requirements:

• 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;
• Following the required care, the child born alive shall be immediately transported and admitted to a hospital; and
• A health care practitioner or any employee of a hospital, physician’s office, or abortion clinic who has knowledge of a failure to comply with the requirements of this provision would need to immediately report the failure to an appropriate State or federal law enforcement agency or both.

Informed Consent Requirements

A physician intending or attempting to perform an abortion would need to first obtain a signed informed consent authorization from the pregnant patient. The form should consist of:

• a statement by the physician indicating the probable post-fertilization age of the fetus;
• a statement that State 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;
• a statement that the abortion shall be performed by the method most likely to allow the child to be born alive, unless this would cause significant risk to the mother;
• a statement that in any case in which an abortion procedure results in a child born alive, State 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;
• 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
• affirmation that each signer has filled out the informed consent form to the best of the signer’s knowledge and understands the information contained in the form.

Reporting Requirements

Any physician who performs or attempts an abortion pursuant would need to annually submit a summary of all such abortions to the National Center for Health Statistics no later than 60 days after the end of the calendar year in which the abortion was performed or attempted. The summary would need to 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:

• the probable post-fertilization age of the fetus;
• the method used to carry out the abortion;
• the location where the abortion was conducted;
• the exception under subsection b. of this section pursuant to which the abortion was conducted; and
• any incident of live birth resulting from the abortion.

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

The bill states that it is modeled on H.R. 36 of the 114th Congress, and is intended to address the concern that a fetus is capable of experiencing pain by 20 weeks after fertilization, if not earlier.

Penalty

A person who performs or attempts to perform an abortion in violation of this provision is guilty of a crime in the third degree.

STATUS

Companion bill to A 3452.

Similar to A 4509, which failed to pass in 2015.

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