Section 1 Short title
This Act may be cited as the “Heartbeat Informed Consent Act”.
Heartbeat Informed Consent Act
A BILL
To ensure that women seeking an abortion receive an ultrasound and an opportunity to review the ultrasound before giving informed consent to receive an abortion.
Sec. 2 Findings
The Congress finds as follows:
The presence of a heartbeat in a woman’s unborn child will be a material consideration to many women contemplating abortion.
The presence of a heartbeat in a woman’s unborn child is a developmental fact that illustrates to the woman that her baby is already alive.
On about the 21st or 22nd day after fertilization (which is about 5 weeks from the first day of the last menstrual period) the heart of an unborn child begins to beat.
The heartbeat of an unborn child can be visually detected at an early stage of pregnancy using an ultrasound machine, typically, at 4 to 4.5 weeks after fertilization (6 to 6.5 weeks from the first day of the last menstrual period) on transvaginal ultrasound, and at 5.5 to 6 weeks after fertilization (7.5 to 8 weeks from the first day of the last menstrual period) on transabdominal ultrasound.
The heartbeat of an unborn child can be made audible at later stages, including by using a handheld Doppler fetal monitor.
Less than five percent of all natural pregnancies end in spontaneous miscarriage after detection of cardiac activity. A fetal heartbeat is therefore a key medical indicator that an unborn child is likely to achieve the capacity for live birth.
The observation of a heartbeat in a woman’s unborn child, when a heartbeat has been detected, is an important component of full informed consent.
Ensuring full informed consent for an abortion is imperative, because of the profound physical and psychological risks of an abortion. As the Supreme Court has observed, “[t]he medical, emotional, and psychological consequences of an abortion are serious and can be lasting.” H.L. v. Matheson, 450 U.S. 398, 411 (1981). The woman’s decision whether to abort “is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.” Planned Parenthood v. Danforth, 428 U.S. 52, 67 (1976). “Whether to have an abortion requires a difficult and painful moral decision,” in which “some women come to regret their choice to abort the infant life they once created and sustained,” and “[s]evere depression and loss of esteem can follow … The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know …” Gonzales v. Carhart, 550 U.S. 124, 159–160 (2007).
Requiring providers to give a woman an opportunity to observe her unborn child’s heartbeat is constitutionally permissible, and the ultrasound image of an unborn child is truthful, nonmisleading information. “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.” (Opinion of O’Connor, Kennedy, and Souter, Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992)).
Further, recent research, taking into account 22 studies with control groups and more than 877,000 women over a 14-year period, finds that women who have had an abortion have an 81 percent increased risk for mental health problems and 10 percent of the mental health problems of women who have had an abortion are directly attributed to abortion.
Sec. 3 Amendment to the public health service act
The Public Health Service Act (42 U.S.C. 201 et seq.) is amended by adding at the end the following:
“XXXIV INFORMED CONSENT
“3401. Definitions
“In this title:
“(1) Abortion—The term abortion means the intentional use or prescription of any instrument, medicine, drug, or any other substance, device, or method to terminate the life of an unborn child, or to terminate the pregnancy of a woman known to be pregnant, with an intention other than—
“(A) to produce a live birth and preserve the life and health of the child after live birth; or
“(B) to remove an ectopic pregnancy, or to remove a dead unborn child who died as the result of a spontaneous abortion, accidental trauma, or a criminal assault on the pregnant female or her unborn child.
“(2) Abortion provider—The term abortion provider means any person legally qualified to perform an abortion under applicable Federal and State laws.
“(3) Embryonic or fetal heartbeat—The term embryonic or fetal heartbeat means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the embryonic or fetal heart.
“(4) Qualified agent—The term qualified agent means—
“(A) a registered diagnostic medical sonographer who is certified in obstetrics and gynecology by the American Registry for Diagnostic Medical Sonography (ARDMS);
“(B) a nurse midwife, or an advanced practice nurse practitioner in obstetrics, with certification in obstetrical ultrasonography; or
“(C) any other agent of an abortion provider who has received training in obstetrical ultrasonography.
“(5) Unborn child—The term unborn child means a member of the species homo sapiens, at any stage of development prior to birth.
“(6) Unemancipated minor—The term unemancipated minor means a minor who is subject to the control, authority, and supervision of his or her parents or guardians, as determined under the law of the State in which the minor resides.
“(7) Woman—The term woman means a female human being whether or not she has reached the age of majority.
“3402. Requirement of informed consent
“(a) Requirement of Compliance by Providers—Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion, shall comply with the requirements of this title.
“(b) Performance and Review of Ultrasound
“(1) Requirement—If an ultrasound is performed on a woman by an abortion provider (or the provider's agent) prior to having any part of an abortion performed, the abortion provider (acting directly or through the provider’s agent) shall—
“(A) ensure that any agent of the provider performing the ultrasound is a qualified agent;
“(B) during the performance of the ultrasound, display the ultrasound images (as described in paragraph (2)) so that the pregnant woman may view the images; and
“(C) provide a medical description of the ultrasound images of the unborn child’s cardiac activity, if present and viewable.
“(2) Quality of ultrasound images—To be displayed in accordance with paragraph (1)(B), ultrasound images shall—
“(A) be of a quality consistent with standard medical practice;
“(B) contain the dimensions of the unborn child; and
“(C) accurately portray the presence of external members and internal organs, if present.
“(3) Viewing images and listening to description—This section may not be construed to be a requirement that the pregnant woman view the ultrasound images required to be displayed, or listen to the description of the images required to be given, by the provider or the provider’s agent pursuant to paragraph (1).
“(c) Audible embryonic or fetal heartbeat
“(1) Requirement—Prior to a woman giving informed consent to having any part of an abortion performed, if the pregnancy is at least 8 weeks after fertilization (10 weeks from the first day of the last menstrual period), the abortion provider (acting directly or through the provider’s employee) shall, using a hand-held Doppler fetal monitor, make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear.
“(2) Unsuccessful attempts at detecting heartbeat—An abortion provider (or the provider’s employee) shall not be in violation of paragraph (1) if—
“(A) the provider (acting directly or through the provider’s employee) has attempted, consistent with standard medical practice, to make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear using a hand-held Doppler fetal monitor;
“(B) that attempt does not result in the heartbeat being made audible; and
“(C) the provider has offered to attempt to make the heartbeat audible at a subsequent date.
“(3) Ability To Not Listen—Nothing in this section shall be construed to prevent the pregnant woman from not listening to the sounds detected by the hand-held Doppler fetal monitor, pursuant to paragraph (1).
“3403. Exception for medical emergencies
“(a) Exception—The provisions of section 3402 shall not apply to an abortion provider in the case that the abortion is necessary to save the life of a mother 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.
“(b) Certification
“(1) In general—Upon a determination by an abortion provider under subsection (a) that an abortion is necessary to save the life of a mother, such provider shall certify the specific medical conditions that support such determination and include such certification in the medical file of the pregnant woman. The certification shall be kept by the abortion provider for a period of not less than 5 years. If the female is a minor, then the certification shall be placed in the medical file of the minor and kept for at least 5 years after the minor reaches the age of majority.
“(2) False statements—An abortion provider who knowingly or recklessly falsifies a certification under paragraph (1) is deemed to have knowingly or recklessly failed to comply with this title for purposes of section 3404.
“3404. Penalties
“(a) In General—An abortion provider who knowingly or recklessly fails to comply with any provision of this title shall be subject to civil penalties in accordance with this section in an appropriate Federal court.
“(b) Commencement of Action—The Attorney General may commence a civil action under this section.
“(c) First offense—Upon a finding by a court that a respondent in an action commenced under this section has knowingly or recklessly violated a provision of this title, the court shall notify the appropriate State medical licensing authority and shall assess a civil penalty against the respondent in an amount not to exceed $100,000 for each such violation.
“(d) Second and subsequent offenses—Upon a finding by a court that the respondent in an action commenced under this section has knowingly or recklessly violated a provision of this title, the court shall notify the appropriate State medical licensing authority and shall assess a civil penalty against the respondent in an amount not to exceed $250,000 for each such violation if the respondent has been found in a prior civil action to have knowingly or recklessly committed another violation of a provision of this title.
“(e) Private Right of Action—A woman upon whom an abortion has been performed in violation of this title, or the parent or legal guardian of such a woman if she is an unemancipated minor, may commence a civil action against the abortion provider for any knowing or reckless violation of this title for actual and punitive damages.”
Sec. 4 Preemption
Nothing in this Act or the amendments made by this Act shall be construed to preempt any provision of State law to the extent that such State law establishes, implements, or continues in effect greater disclosure requirements regarding abortion than those provided under this Act and the amendments made by this Act.
Sec. 5 Severability
If any provision of this Act, an amendment by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of the provisions of such remainder to any person or circumstance, shall not be affected thereby.