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Explainer: What you should know about the Pain-Capable Unborn Child Protection Act

What just happened?

The U.S. House of Representatives voted Tuesday on the Pain-Capable Unborn Child Protection Act (H.R. 36). This GOP-backed legislation is based on compelling evidence that unborn babies experience pain by 20 weeks gestation. The bill would make it a federal crime to perform or attempt to perform abortions on babies at 20 weeks or greater gestation, except in cases of rape, incest, or to save the life of the mother.

What would be the penalty for performing an abortion after 20 weeks?

Anyone caught performing a late-term abortion would be fined, imprisoned for not more than 5 years, or both. They could also be subject to civil action by the woman on whom the abortion was performed or by the parent of a minor on whom the abortion was performed.

Would women who had an abortion after 20 weeks be subject to prosecution?

The issue of when a child in the womb can feel pain has been divisive.

No. A woman upon whom an abortion in violation of law was performed or attempted may not be prosecuted for the crime, or charged with conspiracy to violate this law.

Is there evidence a child in the womb can feel pain at 20 weeks?

The issue of when a child in the womb can feel pain has been divisive and is often based more on particular political views of abortion than on scientific proof. H.R. 36 outlines several reasons why the legislation is necessary and notes:

The position, asserted by some physicians, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization predominantly rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

Medical research has also shown that babies are viable outside the womb as early as 22 weeks. The fact that babies can survive that early provides further evidence that they are developed enough to feel pain.

How many Republicans and Democrats voted in favor of the bill?

The vote was 237-189 in favor of the bill. All but two Republicans (Pennsylvania’s Charlie Dent and New Jersey’s Rodney Frelinghuysen) voted for it, and all but three Democrats (Henry Cuellar of Texas, Dan Lipinski of Illinois, and Collin Peterson of Minnesota) voted against it. Seven Representatives—3 Republicans and 4 Democrats—did not vote on the bill.

Didn’t similar legislation fail in early legislative sessions?

Yes, the House passed similar bills in 2013 and 2015, but failed to get enough support to override a filibuster by Democrats in the Senate. At the time, President Obama had also promised to veto the bill.

Does the American public support such legislation?

A Gallup poll taken in May found only 29 percent of Americans say abortion should be should be legal under any circumstances. A Quinnipiac University poll also found that Americans were evenly divided (46 percent to 46 percent) when asked, “If a ban on abortions after 20 weeks of pregnancy were enacted in the state in which you live, would you support or oppose that policy?”

What’s the next step for the legislation?

Republican Sen. Lindsey Graham has said today he will introduce the Senate version of the bill today. 

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