H.R. 3803: District of Columbia Pain-Capable Unborn Child Protection Act

H.R. 3803

District of Columbia Pain-Capable Unborn Child Protection Act

Date
July 31, 2012 (112th Congress, 2nd Session)

Staff Contact
Sarah Makin

Floor Situation

On Tuesday, July 31, 2012, the House is scheduled to consider H.R. 3803, the District of Columbia Pain-Capable Unborn Child Protection Act, under a suspension of the rules requiring a two-thirds majority vote for approval.  H.R. 3803 was introduced by Rep. Trent Franks (R-AZ) on January 23, 2012, and was referred to the Committee on the Judiciary, which held a mark-up and reported the bill, as amended, on July 18, 2011 by a vote of 18-14.

Bill Summary

H.R. 3803 would provide that abortions after 20 weeks post-fertilization in the District of Columbia are prohibited unless necessary to save the life of the mother.  Penalties for violations of the provision (which do not apply to the mother) would include fines and up to two years in prison.  Interested parties may also bring civil actions to enforce the bill. 

If a frivolous lawsuit is brought, however, the bill would provide for the award of attorneys’ fees to the victim of the frivolous lawsuit.  H.R. 3803 would also require the court to protect the privacy of the woman in any lawsuit brought under the bill. 

Finally, H.R. 3803 would require abortionists in D.C. to make annual reports that generally describe the types of abortions they conduct.

Background

According to the Committee on the Judiciary, it is currently “legal to perform an abortion for any reason, either before or after viability, in the District of Columbia.  Yet, since the Supreme Court’s 1973 decision in Roe v. Wade, medical knowledge regarding the development of unborn babies and their capacities at various stages of growth has advanced dramatically.

“A New York Times magazine article has extensively explored research on unborn pain, noting the research of Kanwaljeet Anand, an Oxford- and Harvard-trained neonatal pediatrician.  Dr. Anand also testified to the following in his Expert Report submitted in the federal litigation surrounding the Partial-Birth Abortion Ban Act: ‘It is my opinion that the human fetus possesses the ability to experience pain from 20 weeks of gestation, if not earlier, and the pain perceived by a fetus is possibly more intense than that perceived by term newborns or older children.’

“Recent polling by the Polling Company shows that 63 percent of all polled support banning abortion on pain-capable unborn children and 70 percent of women support such a ban.

“Seven states have already made such a determination, starting in 2010, by enacting the Pain-Capable Unborn Child Protection Act, and those seven state legislatures have adopted factual findings regarding the medical evidence that unborn children experience pain at least by 20 weeks after fertilization (about the start of the sixth month), and they therefore prohibit abortion after that point, with narrowly drawn exceptions.   Those states are Nebraska, Kansas, Idaho, Oklahoma, Alabama, Georgia, and Louisiana.  Indiana has also enacted a law that is somewhat similar.  In addition, Arizona recently enacted a law generally prohibiting abortion after 18 weeks LMP (20 weeks fetal age), with certain exceptions, which contains a legislative finding on fetal pain capacity.

“In Gonzales v. Carhart, the Supreme Court made clear that ‘The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,’ and that Congress may show such respect for the unborn through ‘specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.’  The Court has stated that it ‘confirms the State's interest in promoting respect for human life at all stages in the pregnancy.’  The Court has also made clear that ‘The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,’ and in any case the medical evidence that unborn children can feel pain at 20 weeks post-fertilization is widely accepted, as described in the Findings section of the bill.

“Further, there can be no doubt as to Congress’ authority to legislate in the District of Columbia.  Congress has exclusive authority over the District of Columbia under the District Clause, which provides that the Congress shall ‘exercise exclusive Legislation in all Cases whatsoever’ over the District established as the seat of government of the United States, now known as the District of Columbia.  The District of Columbia Home Rule Act cannot trump a constitutional power of Congress, and indeed the Home Rule Act explicitly provides that ‘Notwithstanding any other provision of this Act [the Home Rule Act], the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council.’”

Cost

At press time, the Congressional Budget Office (CBO) had not released a cost estimate for H.R. 3803.