HR21-119

1. Short title This Act may be cited as the Born-Alive Abortion Survivors Protection Act.

2. Findings; constitutional authority Congress finds as follows: If an abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of the United States, and entitled to all the protections of such laws. Any infant born alive after an abortion or within a hospital, clinic, or other facility has the same claim to the protection of the law that would arise for any newborn, or for any person who comes to a hospital, clinic, or other facility for screening and treatment or otherwise becomes a patient within its care. In accordance with the above findings, Congress enacts the following pursuant to Congress’ power under— section 5 of the 14th Amendment, including the power to enforce the prohibition on government action denying equal protection of the laws; and section 8 of article I to make all laws necessary and proper for carrying into execution the powers vested by the Constitution of the United States, including the power to regulate commerce under clause 3 of such section.

3. Born-alive infants protection Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following: In the case of an abortion or attempted abortion that results in a child born alive (as defined in section 8 of title 1, United States Code (commonly known as the Born-Alive Infants Protection Act)): Any health care practitioner present at the time the child is born alive shall— 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 any other child born alive at the same gestational age; and following the exercise of skill, care, and diligence required under subparagraph (A), ensure that the child born alive is immediately transported and admitted to a hospital. A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with the requirements of paragraph (1) shall immediately report the failure to an appropriate State or Federal law enforcement agency, or to both. Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both. Whoever intentionally performs or attempts to perform an overt act that kills a child born alive described under subsection (a), shall be punished as under section 1111 of this title for intentionally killing or attempting to kill a human being. The mother of a child born alive described under subsection (a) may not be prosecuted under this section, for conspiracy to violate this section, or for an offense under section 3 or 4 of this title based on such a violation. If a child is born alive and there is a violation of subsection (a), the woman upon whom the abortion was performed or attempted may, in a civil action against any person who committed the violation, obtain appropriate relief. Appropriate relief in a civil action under this subsection includes— objectively verifiable money damage for all injuries, psychological and physical, occasioned by the violation of subsection (a); statutory damages equal to 3 times the cost of the abortion or attempted abortion; and punitive damages. The court shall award a reasonable attorney’s fee to a prevailing plaintiff in a civil action under this subsection. If a defendant in a civil action under this subsection prevails and the court finds that the plaintiff’s suit was frivolous, the court shall award a reasonable attorney’s fee in favor of the defendant against the plaintiff. In this section the following definitions apply: The term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device— to intentionally kill the unborn child of a woman known to be pregnant; or to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than— after viability, to produce a live birth and preserve the life and health of the child born alive; or to remove a dead unborn child. The term attempt, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion. The table of sections for chapter 74 of title 18, United States Code, is amended by inserting after the item pertaining to section 1531 the following: The chapter heading for chapter 74 of title 18, United States Code, is amended by striking Partial-Birth Abortions and inserting Abortions. The item relating to chapter 74 in the table of chapters at the beginning of part I of title 18, United States Code, is amended by striking Partial-Birth Abortions and inserting Abortions. 1532.Requirements pertaining to born-alive abortion survivors (a)Requirements for health care practitionersIn the case of an abortion or attempted abortion that results in a child born alive (as defined in section 8 of title 1, United States Code (commonly known as the Born-Alive Infants Protection Act)): (1)Degree of care required; immediate admission to a hospitalAny health care practitioner present at the time the child is born alive shall— (A)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 any other child born alive at the same gestational age; and (B)following the exercise of skill, care, and diligence required under subparagraph (A), ensure that the child born alive is immediately transported and admitted to a hospital. (2)Mandatory reporting of violationsA health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with the requirements of paragraph (1) shall immediately report the failure to an appropriate State or Federal law enforcement agency, or to both. (b)Penalties (1)In generalWhoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both. (2)Intentional killing of child born aliveWhoever intentionally performs or attempts to perform an overt act that kills a child born alive described under subsection (a), shall be punished as under section 1111 of this title for intentionally killing or attempting to kill a human being. (c)Bar to prosecutionThe mother of a child born alive described under subsection (a) may not be prosecuted under this section, for conspiracy to violate this section, or for an offense under section 3 or 4 of this title based on such a violation. (d)Civil remedies (1)Civil action by a woman on whom an abortion is performedIf a child is born alive and there is a violation of subsection (a), the woman upon whom the abortion was performed or attempted may, in a civil action against any person who committed the violation, obtain appropriate relief. (2)Appropriate reliefAppropriate relief in a civil action under this subsection includes— (A)objectively verifiable money damage for all injuries, psychological and physical, occasioned by the violation of subsection (a); (B)statutory damages equal to 3 times the cost of the abortion or attempted abortion; and (C)punitive damages. (3)Attorney’s fee for plaintiffThe court shall award a reasonable attorney’s fee to a prevailing plaintiff in a civil action under this subsection. (4)Attorney’s fee for defendantIf a defendant in a civil action under this subsection prevails and the court finds that the plaintiff’s suit was frivolous, the court shall award a reasonable attorney’s fee in favor of the defendant against the plaintiff. (e)DefinitionsIn this section the following definitions apply: (1)AbortionThe term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device— (A)to intentionally kill the unborn child of a woman known to be pregnant; or (B)to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than— (i)after viability, to produce a live birth and preserve the life and health of the child born alive; or (ii)to remove a dead unborn child. (2)AttemptThe term attempt, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.. 1532. Requirements pertaining to born-alive abortion survivors..

1532. Requirements pertaining to born-alive abortion survivors In the case of an abortion or attempted abortion that results in a child born alive (as defined in section 8 of title 1, United States Code (commonly known as the Born-Alive Infants Protection Act)): Any health care practitioner present at the time the child is born alive shall— 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 any other child born alive at the same gestational age; and following the exercise of skill, care, and diligence required under subparagraph (A), ensure that the child born alive is immediately transported and admitted to a hospital. A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a failure to comply with the requirements of paragraph (1) shall immediately report the failure to an appropriate State or Federal law enforcement agency, or to both. Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both. Whoever intentionally performs or attempts to perform an overt act that kills a child born alive described under subsection (a), shall be punished as under section 1111 of this title for intentionally killing or attempting to kill a human being. The mother of a child born alive described under subsection (a) may not be prosecuted under this section, for conspiracy to violate this section, or for an offense under section 3 or 4 of this title based on such a violation. If a child is born alive and there is a violation of subsection (a), the woman upon whom the abortion was performed or attempted may, in a civil action against any person who committed the violation, obtain appropriate relief. Appropriate relief in a civil action under this subsection includes— objectively verifiable money damage for all injuries, psychological and physical, occasioned by the violation of subsection (a); statutory damages equal to 3 times the cost of the abortion or attempted abortion; and punitive damages. The court shall award a reasonable attorney’s fee to a prevailing plaintiff in a civil action under this subsection. If a defendant in a civil action under this subsection prevails and the court finds that the plaintiff’s suit was frivolous, the court shall award a reasonable attorney’s fee in favor of the defendant against the plaintiff. In this section the following definitions apply: The term abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device— to intentionally kill the unborn child of a woman known to be pregnant; or to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than— after viability, to produce a live birth and preserve the life and health of the child born alive; or to remove a dead unborn child. The term attempt, with respect to an abortion, means conduct that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in performing an abortion.