"Pain-Capable Unborn Child Protection Act"; bans abortion 20 weeks or more after fertilization.

A201

ASSEMBLY, No. 201

STATE OF NEW JERSEY

222nd LEGISLATURE

�

PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION

Sponsored by:

Assemblywoman DAWN FANTASIA

District 24 (Morris, Sussex and Warren)

Assemblyman JOHN DIMAIO

District 23 (Hunterdon, Somerset and Warren)

Co-Sponsored by:

Assemblymen Webber, Inganamort, Auth, Peterson, Kanitra,
S.Kean and DePhillips

SYNOPSIS

���� "Pain-Capable Unborn Child Protection Act";
bans abortion 20 weeks or more after fertilization.

CURRENT VERSION OF TEXT

���� Introduced Pending Technical Review by Legislative
Counsel.

��

An Act
concerning abortions, supplementing Title 2C of the New
Jersey Statutes, and designated as the "Pain-Capable Unborn Child Protection
Act."

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.��� As used in this act:

���� "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.

���� "Attempt an
abortion" means conduct taken by a person that the person believes will
constitute a substantial step in a course of conduct planned to culminate in
performing an abortion.

���� �Counseling� means counseling
provided by a counselor licensed by the State, or a victim�s rights advocate
provided by a law enforcement agency.

���� �Facility� means any medical
or counseling group, center, or clinic and includes the entire legal entity,
including any entity that controls, is controlled by, or is under common
control with such facility.

���� "Fertilization"
means the fusion of human spermatozoon with a human ovum.

���� �Medical treatment� means
treatment provided at a hospital licensed by the State or operated under
authority of a federal agency, at a medical clinic licensed by the State or
operated under authority of a federal agency, or from a personal physician
licensed by the State.

���� �Minor� means an individual
who has not attained the age of 18 years.

���� "Perform an abortion"
means to take an action that includes inducing an abortion through a medical or
chemical intervention, including writing a prescription for a drug or device
intended to result in an abortion.

���� "Physician" means a
person who is licensed to practice medicine and surgery pursuant to chapter 9
of Title 45 of the Revised Statutes.

���� "Post-fertilization
age" means the age of unborn child as calculated from the fusion of a
human spermatozoon with a human ovum.

���� "Probable
post-fertilization age of the unborn child" means the time period that
will, with reasonable medical judgment and reasonable probability, be the
post-fertilization age of the unborn child at the time the abortion is planned
to be performed or induced.

���� "Reasonable medical
judgment" means a professional judgment made by a reasonably prudent
physician in the practice of medicine, and made with knowledge about the case
and the treatment possibilities with respect to the medical conditions involved.

���� �Unborn child� means an
individual organism of species homo sapiens, beginning at fertilization, until
the point of being born alive.

���� "Woman" means a
female person who has or has not reached the age of majority.

���� 2.��� a.� (1) �Notwithstanding
the provisions of any other law to the contrary, it shall be unlawful for a
person to perform an abortion or attempt to do so, unless the person is a
physician, performing or attempting to perform the abortion pursuant to this
act, who has first made a determination of the probable post-fertilization age
of the unborn child or has reasonably relied upon this determination made by
another physician.� In making a determination pursuant to this section, the
physician shall make inquiries of the pregnant woman and shall perform or cause
to be performed any medical examinations or tests that a reasonably prudent
physician, knowledgeable about the case and the medical conditions involved,
would consider necessary to make an accurate determination of
post-fertilization age.

���� (2)�� Except as provided in
subsection b. of this section, an abortion shall not be performed or attempted
if the probable post-fertilization age of the unborn child, as determined
pursuant to this subsection, is 20 weeks or greater.

���� b.��� The provisions of
subsection a. of this section shall not apply if:

���� (1)�� in reasonable medical
judgment, the abortion is necessary to save the life of a pregnant woman 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, but not including a psychological or emotional
condition;

���� (2)�� the pregnancy is the
result of rape, if the rape has been reported at any time prior to the abortion
to a law enforcement agency

or to Department of Defense
victim assistance personnel, and at least 48 hours prior to the abortion, the
patient has obtained counseling for the rape, provided that the counseling may
not be provided by a facility that performs abortions unless that facility is a
hospital; or the patient has obtained medical treatment for the rape or an
injury related to the rape.� The physician who performs or attempts to perform
an abortion under an exception provided by this paragraph shall comply with
such applicable State laws that are in effect regarding reporting requirements
in cases of rape; or

���� (3)�� the pregnancy is the
result of rape or incest against a minor, if the rape or incest has been
reported at any time prior to the abortion to a law enforcement agency or to
the Division of Child Protection and Permanency in the Department of Children
and Families.

�
The physician who performs or attempts to perform an abortion
under an exception provided by this paragraph shall comply with such applicable
State laws that are in effect regarding reporting requirements in cases of rape
or incest.

���� c.���� Notwithstanding the
requirements for performing or attempting to perform an abortion pursuant to
this act, a physician terminating or attempting to terminate a pregnancy
pursuant to subsection b. of this section may do so only in a manner which, in
reasonable medical judgment, provides the best opportunity for the unborn child
to survive, unless in reasonable medical judgment termination of the pregnancy
in that manner would pose a greater risk of:

���� (1)�� the death of the
pregnant woman; or

���� (2)�� the substantial and
irreversible physical impairment of a major bodily function, not including a
psychological or emotional condition of the pregnant woman.

���� d.��� A person who performs or
attempts to perform an abortion in violation of subsection a. of this section
shall be guilty of a crime of the third degree.

���� e.���� A woman upon whom an
abortion is performed shall be immune from civil or criminal liability for a
violation of, or a conspiracy to violate, subsection a. of this section.

���� f.���� If, in reasonable
medical judgment, the pain-capable unborn child has the potential to survive
outside the womb, the physician who performs or attempts an abortion under an
exception provided by subsection b. of this section shall ensure a second
physician trained in neonatal resuscitation is present and prepared to provide
care to the child consistent with the requirements of subsection g. of this
section.

���� g.��� When a physician
performs or attempts an abortion in accordance with this section, and the child
is born alive, as defined in the federal �Born-Alive Infants Protection Act of
2002� (Pub. L. 107�207, 1 U.S.C. s.8), the following shall apply:

���� (1)�� Any health care
practitioner present at the time shall humanely 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 a child born alive at the same gestational age in the course of a
natural birth.

���� (2)�� Following the care
required to be rendered under paragraph (1) of this subsection, the child born
alive shall be immediately transported and admitted to a hospital.

���� (3)�� A health care
practitioner or any employee of a hospital, physician�s office, or abortion
clinic who has knowledge of a failure to comply with the requirements of this
paragraph shall immediately report the failure to an appropriate State or
federal law enforcement agency or both.

���� h.��� A physician who performs
or attempts to perform an abortion under an exception provided by paragraph (2)
of subsection b. of this section shall, prior to the abortion, place in the
patient medical file, documentation from a hospital licensed by the State or
operated under authority of a federal agency, a medical clinic licensed by the
State or operated under authority of a federal agency, a personal physician
licensed by the State, a counselor licensed by the State, or a victim�s rights
advocate provided by a law enforcement agency, which documentation shall show
that the adult woman seeking the abortion obtained medical treatment or
counseling for the rape or an injury related to the rape.

���� i.���� A physician who
performs or attempts to perform an abortion under an exception provided by
paragraph (3) of subsection b. of this section shall, prior to the abortion,
place in the patient medical file documentation from the Division of Child
Protection and Permanency in the Department of Children and Families showing that
the rape or incest was reported prior to the abortion; or, as an alternative,
documentation from a law enforcement agency showing that the rape or incest was
reported prior to the abortion.

���� j.���� The physician who
intends to perform or attempt to perform an abortion under the provisions of
subsection b. of this section shall not perform any part of the abortion
procedure without first obtaining a signed informed consent authorization form
in accordance with this subsection. The informed consent authorization form
shall be signed in person by the woman seeking the abortion, as well as by the
physician who is performing or attempting to perform the abortion, and a
witness.� The physician performing or attempting to perform an abortion shall
retain the signed informed consent form in the patient�s medical file, and shall
maintain the form in compliance with all State and federal laws, including the
federal "Health Insurance Portability and Accountability Act of
1996," Pub.L.104-191, and related regulations.� The informed consent
authorization form shall be presented in person by the physician and shall
consist of:

���� (1)�� a statement by the
physician indicating the probable post-fertilization age of the pain-capable
unborn child;

���� (2)�� a statement that State
law allows abortion after 20 weeks fetal age only if the mother�s life is
endangered by a physical disorder, physical illness, or physical injury, when
the pregnancy was the result of rape, or an act of incest against a minor;

���� (3)�� a statement that the
abortion shall be performed by the method most likely to allow the child to be
born alive, unless this would cause significant risk to the mother;

���� (4)�� a statement that in any
case in which an abortion procedure results in a child born alive, State law
requires that child to be given every form of medical assistance that is
provided to children spontaneously born prematurely, including transportation
and admittance to a hospital;

���� (5)�� a statement that these
requirements are binding upon the physician and all other medical personnel who
are subject to criminal and civil penalties and that a woman on whom an
abortion has been performed may take civil action if these requirements are not
followed; and

���� (6)�� affirmation that each
signer has filled out the informed consent form to the best of the signer�s
knowledge and understands the information contained in the form.

���� k.��� A woman upon whom an
abortion has been performed or attempted in violation of any provision of this
section may, in a civil action against any person who committed the violation,
obtain appropriate relief, under the following conditions:

���� (1)�� A parent of a minor upon
whom an abortion has been performed or attempted under an exception provided
for in paragraphs (2) or (3) of subsection b. of this section, and that was
performed in violation of any provision of this section may, in a civil action
against any person who committed the violation obtain appropriate relief,
unless the pregnancy resulted from the plaintiff�s criminal conduct.

���� (2)�� Appropriate relief in a
civil action under this subsection includes objectively verifiable money
damages for all injuries, psychological and physical, occasioned by the
violation; statutory damages equal to three times the cost of the abortion; and
punitive damages.

���� (3)�� The court shall award a
reasonable attorney�s fee as part of the costs to a prevailing plaintiff in a
civil action under this subsection.

���� (4)�� 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.

���� (5)�� Except as provided under
paragraph (4) of this subsection, in a civil action under this subsection, no
damages, attorney�s fee or other monetary relief shall be assessed against the
woman upon whom the abortion was performed or attempted.

���� l.���� Any physician who
performs or attempts an abortion pursuant to subsection b. of this section
shall annually submit a summary of all such abortions to the National Center
for Health Statistics no later than 60 days after the end of the calendar year
in which the abortion was performed or attempted, under the following
conditions:

���� (1)�� The summary shall
include the number of abortions performed or attempted on an unborn child who
had a post-fertilization age of 20 weeks or more and specify the following for
each abortion:

���� (a)�� the probable
post-fertilization age of the unborn child;

���� (b)�� the method used to carry
out the abortion;

���� (c)�� the location where the
abortion was conducted;

���� (d)�� the exception under
subsection b. of this section pursuant to which the abortion was conducted; and

���� (e)�� any incident of live
birth resulting from the abortion.

���� (2)�� A summary required under
this subsection shall not contain any information identifying the woman whose
pregnancy was terminated and shall be submitted consistent with the federal
"Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191,
and related regulations.

���� 3.��� This act shall take
effect on the first day of the third month next following the date of
enactment.

STATEMENT

���� This bill, designated as the
"Pain-Capable Unborn Child Protection Act," provides that an abortion
is not to be performed or attempted if the probable post-fertilization age of
the unborn child is 20 weeks or greater, with certain exceptions noted below.�
It is to be unlawful for a person to perform an abortion or attempt to do so,
unless the person is a physician who has first made a determination of the
probable post-fertilization age of the unborn child or has reasonably relied
upon this determination made by another physician.� In making the
determination, a physician is to make inquiries of the pregnant woman and
perform any medical examinations or tests necessary to accurately determine
post-fertilization age.

���� The bill provides an exception
to the above provisions if: (1) the abortion is necessary to save the life of a
pregnant women whose life is endangered by a physical disorder, illness, or
injury, including a life-endangering physical condition caused by, or arising
from, the pregnancy itself; (2) the pregnancy is the result of rape, if
reported to a law enforcement agency prior to the abortion; or (3) the
pregnancy is the result of rape or incest against a minor, if reported to a law
enforcement agency or to the Division of Child Protection and Permanency (DCPP)
in the Department of Children and Families prior to the abortion.� In
terminating or attempting to terminate a pregnancy under these circumstances,
the physician may do so only in a manner which, in reasonable medical judgment,
provides the best opportunity for the unborn child to survive, unless the
termination of the pregnancy in that manner would pose a greater risk of death
of the pregnant woman or substantial and irreversible physical impairment of a
major bodily function.

���� The bill also: outlines the
procedures that a physician who performs or attempts an abortion must follow,
consistent with the federal �Born Alive Infant Protection Act�, if an exception
provided in the bill exists and the pain-capable unborn child survives the
abortion or attempted abortion; outlines the documentation from a law
enforcement agency, Department of Defense victim assistance personnel, or DCCP,
that a physician is required to file proving a pregnant woman or minor seeking
an abortion has been raped or is a victim of incest; requires the woman seeking
the abortion, the physician performing or attempting to perform the abortion,
and a witness to sign an informed consent authorization form; and requires any
physician who performs or attempts an abortion pursuant to the bill to annually
submit a summary of all such abortions to the National Center for Health
Statistics as provided by the conditions outlined in the bill.

���� A person who performs or
attempts to perform an abortion in violation of the bill's requirements is to
be guilty of a crime of the third degree (punishable by three to five years
imprisonment or a fine of up to $15,000, or both); however, a woman upon whom
an abortion is to be performed is to be immune from civil or criminal liability.

���� A woman or the parent of a
minor upon whom an abortion is performed in violation of the provisions of the
the bill may, in a civil action against any person who committed the violation,
obtain appropriate relief the conditions delineated in the bill.

���� The bill, which is modeled on
H.R.36 of the 114th Congress, is intended to address the concern that an unborn
child is capable of experiencing pain by 20 weeks after fertilization, if not
earlier. Surgeons in the field of maternal and fetal medicine have found it
necessary to sedate an unborn child to prevent the unborn child from engaging
in vigorous movement in reaction to invasive surgery.

���� It is the purpose of this
Legislature to assert a compelling governmental interest in protecting the
lives of unborn children from the stage at which substantial medical evidence
indicates they are capable of feeling pain.