September 16, 2015

H.R. 36 – Pain-Capable Unborn Child Protection Act


Background: On May 13, 2015, the House of Representatives passed H.R. 36, the Pain-Capable Unborn Child Protection Act, by a vote of 242 to 184. The Senate companion, S. 1553, was referred to the Senate Judiciary Committee on June 11, 2015.

Floor Situation: H.R. 36 has been placed on the Senate calendar and it is expected that cloture will be filed on the motion to proceed to it. A cloture vote is expected early next week.

Executive Summary: This legislation amends Title 18 of the U.S. code to prohibit any person from performing an abortion on an unborn child starting at 20 weeks after fertilization. Under this law, physicians are responsible for determining the probable post-fertilization age of the unborn child, or reasonably relying upon such a determination made by another physician. The law provides for exceptions in cases of rape for adult women, provided the victim has received medical care or counseling, or if the rape has been reported to law enforcement or Department of Defense victim assistance personnel. There is an exception for cases of rape or incest of a minor, provided the abuse has been reported to social services or law enforcement. There is also an exception to protect the life of the mother.

This legislation requires the presence of a second physician during abortions where the child could survive outside the womb, to provide neonatal resuscitation for unborn children who survive an attempted abortion. It also provides that the baby must be transported and admitted to a hospital. Under this law, a physician who intends to perform an abortion under one of the exceptions must obtain a signed informed consent authorization form.

The bill provides for a statutory maximum of up to five years imprisonment for those who perform abortions beyond 20 weeks. The woman on whom the abortion is performed cannot be prosecuted under this law.

Overview of the Issue

The Congressional Budget Office estimates that 10,000 abortions take place annually at 20 weeks or more after fertilization.

Eleven states currently prohibit abortions past 20 weeks with laws similar to H.R. 36. The U.S. Court of Appeals for the Ninth Circuit invalidated an Idaho pain-capable law in June 2015 because, it reasoned, the government’s interest in such prohibitions arise at the point of the child’s viability, not gestational age. The Supreme Court has held that a governmental interest in a child’s life can only override a woman’s right to obtain an abortion, with certain exceptions for the mother’s health and safety, at the point when the fetus is viable outside the womb.

Proponents of this legislation argue that the U.S. Supreme Court’s 2007 ruling in Gonzales v. Carhart, upholding a federal prohibition on partial-birth abortions, substantially shifted the court’s jurisprudence. They argue that the line is no longer drawn solely at the point of viability, but where Congress finds a compelling interest in protecting the rights of the unborn. The court specifically noted that “regulations which do no more than create a structural mechanism by which the State … may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” H.R. 36 asserts a new governmental interest – permitted after Gonzales – based on the capacity, at a defined point of 20 weeks in a child’s development, to experience pain.

Considerations on the Bill

Leader McConnell stated in June 2015 that the Senate would take up legislation providing for protections for children at 20 weeks of development. The recent emergence of videos painting a troubling picture of the operations at Planned Parenthood – videos even Hillary Clinton called “disturbing” – have pushed this matter to the forefront. In addition to raising serious questions about whether Planned Parenthood is violating laws intended to protect the health of women and unborn children, the videos provide powerful images of life at early stages of development and the government’s compelling interest in protecting it.

Notable Bill Provisions

Section 2 – Legislative findings and declaration of constitutional authority

This section makes certain findings as to the physical capacity of an unborn child to experience pain at 20 weeks after fertilization. It finds that fetal anesthesia is “routinely administered” for surgeries being performed by 20 weeks after fertilization. It finds that “there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier.” It finds that Congress has a compelling governmental interest in protecting unborn children starting at the stage when medical evidence indicates pain-capability. This compelling interest in pain-capability is intended to be “separate and independent of the compelling governmental interest in protecting” unborn lives at the stage of viability. It finds that Congress has authority to protect unborn children on the basis of pain-capability under Commerce Clause jurisprudence and the protections set forth in the Fourteenth Amendment to the Constitution.  

Section 3 – Pain-capable unborn child protection

This portion of the legislation creates a new section under Title 18, section 1532. Under this new section, any person performing an abortion on an unborn child after 20 weeks from fertilization would be subject to criminal fine and/or imprisonment. It sets forth exceptions to this prohibition as well as requirements such as informed consent, the duty to care for a delivered child, and the presence of a doctor trained in neonatal resuscitation. 

This section requires a physician who performs an abortion under any of the exceptions to abide by the applicable state laws regarding reporting requirements in cases of rape or incest and any state parental notification laws.

This section prohibits the prosecution of a woman who has had an abortion under this legislation.

This section authorizes a woman, or parent of a minor, who has participated in an abortion under this section to pursue civil action against any person who violates the requirements of the law.

Administration Position

The Obama administration opposes H.R. 36. 


The Congressional Budget Office estimates that H.R. 36 would increase spending for Medicaid by $235 million over the 2015-2025 period. CBO also notes, however, that “there is a wide range of uncertainty around that central estimate.”


There are no amendments at this time.