Fact Sheets


Washington, DC, October 3, 2017

Fact Sheet: H.R. 36, The So-Called “Pain-Capable Unborn Child Protection Act”

H.R. 36, the “Pain-Capable Unborn Child Protection Act,” bans abortions beginning at 20 weeks after fertilization.  The bill has no health exception and only an extremely narrow exception for cases where a woman’s life is endangered by a physical condition.   The bill also has woefully inadequate rape and incest exceptions.  By banning pre-viability abortions, H.R. 36 is a direct challenge to Roe v. Wade

H.R. 36 is patently unconstitutional because it violates a woman’s right to have an abortion prior to viability and it lacks any health exception.

  • H.R. 36 violates Roe v Wade’s central holding that a woman has an absolute constitutional right to have an abortion prior to a fetus’s viability.   The bill’s unsubstantiated findings do not change widely accepted science that viability is generally considered to be around 24 weeks after fertilization.  By banning abortions as early as 20 weeks, H.R. 36 is a direct challenge to Roe.
  • H.R. 36 contains NO health exception for the mother.  The bill’s constitutionality is further called into question because it has no health exception.  Roe v Wade and subsequent cases make clear that any regulation of abortion – even after viability – must not pose an undue burden on a woman’s right to choose.  H.R. 36 has no health exception and only a limited exception when the woman’s life is endangered.  Even then, the “life” exception is available only when it is endangered by a physical condition, and H.R. 36 would still prohibit abortions when an emotional or psychological condition, such as having suicidal thoughts, threatens the woman’s life.

The bill’s rape and incest exceptions are woefully inadequate and are based on the implicit premise that women who report rape and minors who report rape or incest cannot be trusted.

  • Adult rape survivors must obtain counseling or medical treatment for the rape at least 48 hours before obtaining an abortion, and she must provide documentation to be included in her medical file, in order for her to obtain an abortion after 20 weeks.  Moreover, that counseling or treatment cannot be provided by anyone who provides abortion services.  Therefore, if a woman visits her regular ob/gyn for medical treatment after a sexual assault, and that doctor, or even another doctor in the same practice, also provides abortion services, then the entire practice is banned from providing the counseling or medical treatment that the rape exception requires.
  • Minors who are victims of rape or incest can obtain an abortion after 20 weeks only if the rape or incest has been reported to law enforcement or “a government agency legally authorized to act on reports of child abuse,” and documentation of such a report must be included in the victim’s medical file.

H.R. 36 is opposed by civil liberties groups, women’s organizations, medical providers, and a coalition of 15 national religious groups.  Last Congress, these groups, including NARAL Pro-Choice America, Planned Parenthood, and the American Congress of Obstetricians and Gynecologists, opposed a bill substantively identical to H.R. 36.

Prepared by House Judiciary Committee Democratic Staff