Pain-Capable Unborn Child Protection Act of 2017 (H.R. 36)

H.R. 36 would ban abortion at 20 weeks or more in all 50 states.

The bill provides exceptions for an abortion that is necessary to save the life of the pregnant patient, or when the pregnancy is the result of rape or incest.

A physician would be required to determine the “probable post-fertilization age” of a fetus prior to performing, or attempting to perform, an abortion.

The bill 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 termination of the pregnancy in that manner would pose a greater risk of death of the pregnant patient or the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions of the pregnant patient than another available method.

A second physician trained in neonatal resuscitation would be required to be present and prepared to provide care.

An individual who performs, or attempts to perform, an abortion in violation of the provisions of this bill would be subject to a fine, a prison term of up to five years, or both. Individuals upon whom an abortion is performed would be exempted from prosecution.

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

Medical Exception

Abortion would be permitted if, in reasonable medical judgment, it is necessary to save the life of a pregnant patient whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition arising from the pregnancy, not including psychological or emotional conditions.

Rape/Incest Exception

The bill would permit abortion if the pregnancy is the result of rape against an adult individual and at least 48 hours prior to the abortion, they received counseling or medical treatment for the rape. The counseling cannot take place at an abortion clinic.

The amendment would also permit abortion if the pregnancy is the result of rape or incest against a minor and the rape or incest has been reported to law enforcement or a government agency legally authorized to act on reports of child abuse.

The exception does not apply to adult victims of incest.

Informed Consent

The bill would amend informed consent requirements to include the following information:

• the probable post-fertilization age of the fetus;
• a statement that federal law allows abortion after 20 weeks only in the case of a medical emergency, or if the pregnancy was a result of rape or incest;
• a statement that the abortion must be performed by the method most likely to allow the child to be born alive, unless it would cause significant risk to the patient;
• a statement that in any case in which an abortion results in a child born alive, federal law requires medical assistance, including transportation and admittance to a hospital;
• a statement regarding criminal and civil penalties; and
• affirmation that each signer understands the above information.

The informed consent form would need to be signed in person, by the pregnant individual, the physician performing or attempting to perform the abortion, and a witness.

Reporting Requirements

Related Legislation

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

Identical to S. 1922 and S. 2311.

Similar to H.R. 36/S. 1553, both of which failed to pass during the 2015-2016 legislative session.

Similar to H.R. 1797/S. 1670, both of which failed to pass during the 2013-2014 legislative session.

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STATUS

Passed the House on October 3, 2017, by a 237-189 vote.

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People

Organizations

• National Right to Life Committee — Drafted Model Law