§1061.1.2. Pain-Capable Unborn Child Protection Act
A. This Section may be cited as the "Pain-Capable Unborn Child Protection Act".
B. Legislative intent. (1) The legislature makes the following findings:
(a) Pain receptors (nociceptors) are present throughout the unborn child's entire body
and nerves link these receptors to the brain's thalamus and subcortical plate by no later than
twenty weeks.
(b) By eight weeks after fertilization, the unborn child reacts to touch. After twenty
weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an
adult human, for example, by recoiling.
(c) In the unborn child, application of such painful stimuli is associated with
significant increases in stress hormones known as the stress response.
(d) Subjection to such painful stimuli is associated with long-term harmful
neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional,
behavioral, and learning disabilities later in life.
(e) For the purposes of surgery on unborn children, fetal anesthesia is routinely
administered and is associated with a decrease in stress hormones compared to their level
when painful stimuli are applied without such anesthesia.
(f) The position, asserted by some medical experts, that the unborn child is incapable
of experiencing pain until a point later in pregnancy than twenty weeks after fertilization
predominately 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.
(g) Substantial evidence indicates that children born missing the bulk of the cerebral
cortex, those with hydranencephaly, nevertheless experience pain.
(h) In adults, stimulation or ablation of the cerebral cortex does not alter pain
perception, while stimulation or ablation of the thalamus does.
(i) Substantial evidence indicates that structures used for pain processing in early
development differ from those of adults, using different neural elements available at specific
times during development, such as the subcortical plate, to fulfill the role of pain processing.
(j) The position, asserted by some medical experts, that the unborn child remains in
a coma-like sleep state that precludes the unborn child's experiencing pain is inconsistent
with the documented reaction of unborn children to painful stimuli and with the experience
of fetal surgeons who have found it necessary to sedate the unborn child with anesthesia to
prevent the unborn child from thrashing about in reaction to invasive surgery.
(k) Consequently, there is substantial medical evidence that an unborn child is
capable of experiencing pain by twenty weeks after fertilization.
(2)(a) It is the purpose of the state to assert a compelling state interest in protecting
the lives of unborn children from the stage at which substantial medical evidence indicates
that they are capable of feeling pain.
(b) Louisiana's compelling state interest in protecting the lives of unborn children
from the stage at which substantial medical evidence indicates that they are capable of
feeling pain is intended to be separate from and independent of Louisiana's compelling state
interest in protecting the lives of unborn children from the stage of viability, and neither state
interest is intended to replace the other.
(3) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of
determining the severability of a state statute regulating abortion the United States Supreme
Court noted that an explicit statement of legislative intent specifically made applicable to a
particular statute is of greater weight than a general savings or severability clause, it is the
intent of the state that if any one or more provisions, sections, subsections, sentences,
clauses, phrases or words of this Section or the application thereof to any person or
circumstance is found to be unconstitutional, the same is hereby declared to be severable and
the balance of this Section shall remain effective notwithstanding such unconstitutionality.
Moreover, the state declares that it would have passed this Section, and each provision,
section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any
one or more provisions, sections, subsections, sentences, clauses, phrases or words, or any
of their applications, were to be declared unconstitutional.
C. Definitions. For purposes of this Section, the following terms shall have the
following meanings unless the context clearly indicates otherwise:
(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or
any other substance or device to terminate the pregnancy of a woman known to be pregnant
with an intention other than to increase the probability of a live birth, to preserve the life or
health of the child after live birth, or to remove a dead unborn child who died as the result
of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman
or her unborn child, and which causes the premature termination of the pregnancy.
(2) "Attempt to perform or induce an abortion" means an act, or an omission of a
statutorily required act, that, under the circumstances as the actor believes them to be,
constitutes a substantial step in a course of conduct planned to culminate in the performance
or induction of an abortion in this state in violation of this Section.
(3) "Department" means Louisiana Department of Health.
(4) "Fertilization" means the fusion of a human spermatozoon with a human ovum.
(5) "Medical emergency" means a condition that, in reasonable medical judgment,
so complicates the medical condition of the pregnant woman that it necessitates the
immediate abortion of her pregnancy without first determining postfertilization age to avert
her death or for which the delay necessary to determine postfertilization age will create
serious risk of substantial and irreversible physical impairment of a major bodily function,
not including psychological or emotional conditions. No condition shall be deemed a
medical emergency if based on a claim or diagnosis that the woman will engage in conduct
which she intends to result in her death or in substantial and irreversible physical impairment
of a major bodily function.
(6) "Medically futile" means that, in reasonable medical judgment, the unborn child
has a profound and irremediable congenital or chromosomal anomaly that is incompatible
with sustaining life after birth.
(7) "Physician" means any person licensed to practice medicine and surgery or
osteopathic medicine and surgery in the state of Louisiana.
(8) "Postfertilization age" means the age of the unborn child as calculated from the
fusion of a human spermatozoon with a human ovum.
(9) "Probable postfertilization age of the unborn child" means what, in reasonable
medical judgment, will with reasonable probability be the postfertilization age of the unborn
child at the time the abortion is planned to be performed or induced.
(10) "Reasonable medical judgment" means a medical judgment that would be made
by a reasonably prudent physician, knowledgeable about the case and the treatment
possibilities with respect to the medical conditions involved.
(11) "Unborn child" or "fetus" each mean an individual organism of the species
homo sapiens from fertilization until live birth.
(12) "Woman" means a female human being whether or not she has reached the age
of majority.
D. Determination of post fertilization age.
(1) Except in the case of a medical emergency or when a pregnancy is diagnosed as
medically futile, no abortion shall be performed or induced or be attempted to be performed
or induced unless the physician performing or inducing it has first made a determination of
the probable post fertilization age of the unborn child or relied upon such a determination
made by another physician. In making such a determination, the physician shall make such
inquiries of the woman and perform or cause to be performed such medical examinations and
tests as a reasonably prudent physician, knowledgeable about the case and the medical
conditions involved, would consider necessary to perform in making an accurate diagnosis
with respect to post fertilization age.
(2) Failure by any physician to conform to any requirement of this Section constitutes
"unprofessional conduct" pursuant to R.S. 37:1261.
E. Abortion of unborn child of twenty or more weeks post fertilization age
prohibited.
(1) No person shall perform or induce or attempt to perform or induce an abortion
upon a woman when it has been determined, by the physician performing or inducing or
attempting to perform or induce the abortion or by another physician upon whose
determination that physician relies, that the probable post fertilization age of the woman's
unborn child is twenty or more weeks, unless the pregnancy is diagnosed as medically futile
or, in reasonable medical judgment, she has a condition which so complicates her medical
condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious
risk of substantial and irreversible physical impairment of a major bodily function, not
including psychological or emotional conditions.
(2) When an abortion upon a woman whose unborn child has been determined to
have a probable post fertilization age of twenty or more weeks is not prohibited by Paragraph
(1) of this Subsection, the physician shall terminate the pregnancy in the 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 either of the death of the pregnant woman or of the substantial and
irreversible physical impairment of a major bodily function, not including psychological or
emotional conditions, of the woman than would other available methods.
F. Penalties. Any person who intentionally or knowingly fails to comply with the
requirements of this Section shall be subject to the penalties as provided for in R.S.
40:1061.29.
G. Construction. This Section shall not be construed to repeal, by implication or
otherwise, R.S. 40:1061.10 or any otherwise applicable provision of Louisiana law regulating
or restricting abortion. An abortion that complies with this Section, but violates the
provisions of R.S. 40:1061.10 or any otherwise applicable provision of Louisiana law, shall
be deemed unlawful as provided in such provision. An abortion that complies with the
provisions of R.S. 40:1061.10 or any otherwise applicable provision of Louisiana law
regulating or restricting abortion, but violates this Section, shall be deemed unlawful as
provided in this Section. If some or all of the provisions of this Section are temporarily or
permanently restrained or enjoined by judicial order, all other provisions of Louisiana law
regulating or restricting abortion shall be enforced as though such restrained or enjoined
provisions had not been adopted; provided, however, that whenever such temporary or
permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have
effect, such provisions shall have full force and effect.
H. The provisions of R.S. 40:1061.1 shall apply to this Section.
Acts 2012, No. 738, §1; Redesignated from R.S. 40:1299.30.1 by HCR 84 of 2015
R.S.; Acts 2022, No. 545, §§3, 6C; Redesignated from R.S. 40:1061.1.
NOTE: Former R.S. 40:1061.1.2 redesignated as R.S. 40:1061.1.4 by Acts 2022, No.
545, §6C.