2025 -- S 0064
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S T A T E O F R H O D E I S L A N D
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2025
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A N A C T
RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN
CHILD PROTECTION ACT
Introduced By: Senators de la Cruz, Ciccone, Rogers, and E Morgan
Date Introduced: January 23, 2025
Referred To: Senate Judiciary
It is enacted by the General Assembly as follows:
SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby 1
amended by adding thereto the following chapter: 2
CHAPTER 104 3
RHODE ISLAND PAIN-CAPABLE UNBORN CHILD PROTECTION ACT 4
23-104-1. Short title. 5
This chapter shall be known and may be cited as the “Rhode Island Pain-Capable Unborn 6
Child Protection Act”. 7
23-104-2. Legislative findings. 8
The general assembly makes the following findings: 9
(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body no 10
later than sixteen (16) weeks after fertilization and nerves link these receptors to the brain's 11
thalamus and subcortical plate by no later than twenty (20) weeks. 12
(2) By eight (8) weeks after fertilization, the unborn child reacts to touch. After twenty (20) 13
weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult 14
human, for example, by recoiling. 15
(3) In the unborn child, application of such painful stimuli is associated with significant 16
increases in stress hormones known as the stress response. 17
(4) Subjection to such painful stimuli is associated with long-term harmful 18
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neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral 1
and learning disabilities later in life. 2
(5) For the purposes of surgery on unborn children, fetal anesthesia is routinely 3
administered and is associated with a decrease in stress hormones compared to their level when 4
painful stimuli are applied without the anesthesia. 5
(6) The position, asserted by some medical experts, that the unborn child is incapable of 6
experiencing pain until a point later in pregnancy than twenty (20) weeks after fertilization 7
predominately rests on the assumption that the ability to experience pain depends on the cerebral 8
cortex and requires nerve collections between the thalamus and the cortex. However, recent medical 9
research and analysis, especially since 2007, provides strong evidence for the conclusion that a 10
functioning cortex is not necessary to experience pain. 11
(7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, 12
those with hydranencephaly, nevertheless experience pain. 13
(8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception, 14
while stimulation or ablation of the thalamus does. 15
(9) Substantial evidence indicates that structures used for pain processing in early 16
development differ from those of adults, using different neural elements available at specific times 17
during development, such as the subcortical plate, to fulfill the role of pain processing. 18
(10) The position, asserted by some medical experts, that the unborn child remains in a 19
coma-like sleep state that precludes the unborn child experiencing pain is inconsistent with the 20
documented reaction of unborn children to painful stimuli and with the experience of fetal surgeons 21
who have found it necessary to sedate the unborn child with anesthesia to prevent the unborn child 22
from thrashing about in reaction to invasive surgery. 23
(11) Consequently, there is substantial medical evidence that an unborn child is capable of 24
experiencing pain by twenty (20) weeks after fertilization. The general asssembly has the 25
constitutional authority to make this judgment. As the United States Supreme Court has noted in 26
Gonzales v. Carhart, 550 U.S. 124, 162-64 (2007), "[t]he Court has given state and federal 27
legislatures wide discretion to pass legislation in areas where there is medical and scientific 28
uncertainty.”; see Marshall v. United States, 414 U.S. 417, 427 (1974) (When Congress undertakes 29
to act in areas fraught with medical and scientific uncertainties, legislative options must be 30
especially broad.). The law need not give abortion doctors unfettered choice in the course of their 31
medical practice, nor should it elevate their status above other physicians in the medical 32
community. Medical uncertainly does not foreclose the exercise of legislative power in the abortion 33
context any more than it does in other contexts. 34
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(12) It is the purpose of the state to assert a compelling state interest in protecting the lives 1
of unborn children from the stage at which substantial medical evidence indicates that they are 2
capable of feeling pain. 3
(13) In enacting this legislation the state of Rhode Island is not asking the Supreme Court 4
to overturn or replace its holding, first articulated in Roe v. Wade, and reaffirmed in Planned 5
Parenthood of Southeastern Pennsylvania v. Casey, that the state interest in unborn human life, 6
which is "legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it asserts a 7
separate and independent compelling state interest in unborn human life that exists once the unborn 8
child is capable of feeling pain, which is asserted not in replacement of, but in addition to the state's 9
compelling state interest in protecting the lives of unborn children from the stage of viability. 10
(14) The United States Supreme Court has established that the "constitutional liberty of the 11
woman to have some freedom to terminate her pregnancy ... is not so unlimited . . . that from the 12
outset the State cannot show its concern for the life of the unborn, and at a later point in fetal 13
development the state's interest in life has sufficient force so that the right of the woman to terminate 14
the pregnancy can be restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 15
U.S. 833, 869 (1992). 16
(15) The Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Gonzales 17
v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in the earlier decision that had 18
struck down Nebraska's Partial-Birth Abortion Ban Act. That opinion stated, "[In Casey] We held 19
it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated 20
by abortion.” Casey is premised on the states having an important constitutional role in defining 21
their interests in the abortion debate. It is only with this principle in mind that [a state's] interests 22
can be given proper weight. States also have an interest in forbidding medical procedures which, 23
in the state's reasonable determination, might cause the medical profession or society as a whole to 24
become insensitive, even disdainful, to life, including life in the human fetus. A state may take 25
measures to ensure the medical profession and its members are viewed as healers, sustained by a 26
compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life 27
which cannot survive without the assistance of others." Stenberg v. Carhart, 350 U.S. 914, 958-59 28
(2000)(Kennedy, J., dissenting). 29
(16) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of 30
determining the severability of a state statute regulating abortion, the United States Supreme Court 31
noted that an explicit statement of legislative intent specifically made applicable to a particular 32
statute is of greater weight than a general savings or severability clause, it is the intent of the state 33
that if any one or more provisions, sections, subsections, sentences, clauses, phrases or words of 34
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this chapter or the application thereof to any person or circumstance is found to be unconstitutional, 1
the same is hereby declared to be severable and the balance of this act shall remain effective 2
notwithstanding such unconstitutionality. Moreover, the state declares that it would have passed 3
this chapter, and each provision, section, subsection, sentence, clause, phrase or word thereof, 4
irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, 5
phrases or words, or any of their applications, were to be declared unconstitutional. 6
23-104-3. Definitions. 7
For purposes of this chapter: 8
(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any 9
other substance or device to: 10
(i) Intentionally kill the unborn child of a woman known to be pregnant; or 11
(ii) Intentionally terminate the pregnancy of a woman known to be pregnant, with an 12
intention other than: 13
(A) After viability to produce a live birth and preserve the life and health of the child born 14
alive; or 15
(B) To remove a dead unborn child. 16
(2) "Attempt to perform or induce an abortion" means an act, or an omission of a statutorily 17
required act, that, under the circumstances as the actor believes them to be, constitutes a substantial 18
step in a course of conduct planned to culminate in the performance or induction of an abortion in 19
this state in violation of this chapter. 20
(3) "Department" means the department of health. 21
(4) "Fertilization" means the fusion of a human spermatozoon with a human ovum. 22
(5) "Medical emergency" means a condition that, in reasonable medical judgment, so 23
complicates the medical condition of the pregnant woman that it necessitates the immediate 24
abortion of her pregnancy without first determining post-fertilization age to avert her death, or for 25
which the delay necessary to determine post-fertilization age will create serious risk of substantial 26
and irreversible physical impairment of a major bodily function, not including psychological or 27
emotional conditions. No condition may be deemed a medical emergency if based on a claim or 28
diagnosis that the woman will engage in conduct which she intends to result in her death or in 29
substantial and irreversible physical impairment of a major bodily function. 30
(6) "Physician" means any person licensed to practice medicine and surgery, or osteopathic 31
medicine and surgery in this state. 32
(7) "Post-fertilization age" means the age of the unborn child as calculated from the fusion 33
of a human spermatozoon with a human ovum. 34
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(8) "Probable post-fertilization age of the unborn child" means what, in reasonable medical 1
judgment, will with reasonable probability be the post-fertilization age of the unborn child at the 2
time the abortion is planned to be performed or induced. 3
(9) "Reasonable medical judgment" means a medical judgment that would be made by a 4
reasonably prudent physician, knowledgeable about the case and the treatment possibilities with 5
respect to the medical conditions involved. 6
(10) "Serious health risk to the unborn child's mother" means that in reasonable medical 7
judgment she has a condition that so complicates her medical condition that it necessitates the 8
abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible 9
physical impairment of a major bodily function, not including psychological or emotional 10
conditions. No greater risk may be determined to exist if it is based on a claim or diagnosis that the 11
woman will engage in conduct which she intends to result in her death or in substantial and 12
irreversible physical impairment of a major bodily function. 13
(11) "Unborn child" or "fetus" each mean an individual organism of the species homo 14
sapiens from fertilization until live birth. 15
(12) "Woman" means a female human being, whether or not she has reached the age of 16
majority. 17
23-104-4. Protection of unborn child capable of feeling pain from abortion. 18
(a) No person may perform or induce, or attempt to perform or induce, an abortion of an 19
unborn child capable of feeling pain, unless necessary to prevent serious health risk to the unborn 20
child's mother. 21
(b) An unborn child shall be deemed capable of feeling pain when it has been determined, 22
by the physician performing or inducing, or attempting to perform or induce the abortion, or by 23
another physician upon whose determination that physician relies, that the probable post 24
fertilization age of the woman's unborn child is twenty (20) or more weeks. 25
(c) Except in the case of a medical emergency, no abortion may be performed or induced, 26
or be attempted to be performed or induced, unless the physician performing or inducing it has first 27
made a determination of the probable post fertilization age of the unborn child or relied upon such 28
a determination made by another physician. In making this determination, the physician shall make 29
such inquiries of the woman and perform or cause to be performed such medical examinations and 30
tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions 31
involved, would consider necessary to perform in making an accurate diagnosis with respect to post 32
fertilization age. 33
(d) When an abortion of an unborn child capable of feeling pain is necessary to prevent 34
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serious health risk to the unborn child's mother, the physician shall terminate the pregnancy in the 1
manner which, in reasonable medical judgment, provides the best opportunity for the unborn child 2
to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner 3
would pose a greater risk either of the death of the pregnant woman or of the substantial and 4
irreversible physical impairment of a major bodily function, not including psychological or 5
emotional conditions, of the woman than would other available methods. No greater risk may be 6
determined to exist if it is based on a claim or diagnosis that the woman will engage in conduct 7
which she intends to result in her death or in substantial and irreversible physical impairment of a 8
major bodily function. 9
23-104-5. Reporting. 10
(a) Any physician who performs or induces, or attempts to perform or induce, an abortion 11
shall report to the department, on a schedule and in accordance with forms and regulations adopted 12
and promulgated by the department, that include: 13
(1) Post-fertilization age: 14
(i) If a determination of probable post-fertilization age was made, whether ultrasound was 15
employed in making the determination, and the week of probable post-fertilization age determined; 16
(ii) If a determination of probable post-fertilization age was not made, the basis of the 17
determination that a medical emergency existed. 18
(2) Method of abortion, which of the following was employed: 19
(i) Medication abortion (such as, but not limited to, mifepristone/misoprostol or 20
methotrexate/misoprostol); 21
(ii) Manual vacuum aspiration; 22
(iii) Electrical vacuum aspiration; 23
(iv) Dilation and evacuation; 24
(v) Combined induction abortion and dilation and evacuation; 25
(vi) Induction abortion with prostaglandins; 26
(vii) Induction abortion with intra-amniotic instillation (such as, but not limited to, saline 27
or urea); 28
(viii) Induction abortion, other means; 29
(ix) Intact dilation and extraction (partial-birth); or 30
(x) Method not listed (specify). 31
(3) Whether an intra-fetal injection was used in an attempt to induce fetal demise (such as, 32
but not limited to, intra-fetal potassium chloride or digoxin). 33
(4) Age and race of the patient. 34
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(5) If the unborn child was deemed capable of experiencing pain under § 23-104-4(b), the 1
basis of the determination that the pregnant woman had a condition which so complicated her 2
medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert 3
serious risk of substantial and irreversible physical impairment of a major bodily function, not 4
including psychological or emotional conditions. 5
(6) If the unborn child was deemed capable of experiencing pain under § 23-104-4(b), 6
whether or not the method of abortion used was one that, in reasonable medical judgment, provided 7
the best opportunity for the unborn child to survive and, if such a method was not used, the basis 8
of the determination that termination of the pregnancy in that manner would pose a greater risk 9
either of the death of the pregnant woman or of the substantial and irreversible physical impairment 10
of a major bodily function, not including psychological or emotional conditions, of the woman than 11
would other available methods. 12
(b) Reports required by subsection (a) of this section shall not contain the name or the 13
address of the patient whose pregnancy was terminated, nor shall the report contain any other 14
information identifying the patient, except that each report shall contain a unique medical record 15
identifying number, to enable matching the report to the patient's medical records. These reports 16
shall be maintained in strict confidence by the department, shall not be available for public 17
inspection, and shall not be made available except: 18
(1) To the office of attorney general pursuant to a criminal investigation; 19
(2) To the office of attorney general pursuant to a civil investigation of the grounds for an 20
action under § 23-104-7; or 21
(3) Pursuant to court order in an action under § 23-104-7. 22
(c) By June 30 of each year the department shall issue a public report providing statistics 23
for the previous calendar year compiled from all of the reports covering that year submitted in 24
accordance with this section for each of the items listed in subsection (a) of this section. Each report 25
shall also provide the statistics for all previous calendar years during which this section was in 26
effect, adjusted to reflect any additional information from late or corrected reports. The department 27
shall take care to ensure that none of the information included in the public reports could reasonably 28
lead to the identification of any pregnant woman upon whom an abortion was performed, induced, 29
or attempted. 30
(d) Any physician who fails to submit a report by the end of thirty (30) days following the 31
due date established by regulation shall be subject to a late fee of one thousand dollars ($1,000) for 32
each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue. 33
Any physician required to report in accordance with this act who has not submitted a report, or has 34
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submitted only an incomplete report, more than six (6) months following the due date, may, in an 1
action brought by the department, be directed by a court of competent jurisdiction to submit a 2
complete report within a period stated by court order or be subject to civil contempt. Intentional or 3
reckless failure by any physician to conform to any requirement of this section, other than late filing 4
of a report, constitutes "unprofessional conduct". Intentional or reckless failure by any physician to 5
submit a complete report in accordance with a court order constitutes "unprofessional conduct”. 6
Intentional or reckless falsification of any report required under this section shall be punishable as 7
a misdemeanor. 8
(e) Within ninety (90) days of the effective date of this chapter, the department shall adopt 9
and promulgate forms and regulations to assist in compliance with this section. Subsection (a) of 10
this section shall take effect so as to require reports regarding all abortions performed or induced 11
on and after the first day of the first calendar month following the effective date of the rules. 12
23-104-6. Penalties. 13
Any person who intentionally or recklessly performs or induces, or attempts to perform or 14
induce an abortion in violation of this chapter shall be guilty of a felony. No penalty may be 15
assessed against the woman upon whom the abortion is performed or induced, or attempted to be 16
performed or induced. 17
23-104-7. Civil remedies. 18
(a) Any woman upon whom an abortion has been performed or induced in violation of this 19
chapter, or the father of the unborn child who was the subject of such an abortion, may maintain an 20
action against the person who performed or induced the abortion in intentional or reckless violation 21
of this chapter for actual and punitive damages. Any woman upon whom an abortion has been 22
attempted in violation of this chapter may maintain an action against the person who attempted to 23
perform or induce the abortion in an intentional or reckless violation of this chapter for actual and 24
punitive damages. No damages may be awarded a plaintiff if the pregnancy resulted from the 25
plaintiff's criminal conduct. 26
(b) A cause of action for injunctive relief against any person who has intentionally or 27
recklessly violated this chapter may be maintained: 28
(1) By the woman upon whom an abortion was performed or induced, or attempted to be 29
performed or induced in violation of this chapter; 30
(2) If the woman had not attained the age of eighteen (18) years at the time of the abortion, 31
or has died as a result of the abortion, the parent or guardian of the pregnant woman; 32
(3) By a prosecuting attorney with appropriate jurisdiction; or 33
(4) By the office of attorney general. 34
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The injunction shall prevent the abortion provider from performing or inducing, or 1
attempting to perform or induce further abortions in violation of this chapter. A cause of action 2
may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct. 3
(c) If judgment is rendered in favor of the plaintiff in an action described in this section, 4
the court shall render judgment for a reasonable attorneys' fee in favor of the plaintiff against the 5
defendant. 6
(d) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's 7
suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable 8
attorneys' fee in favor of the defendant against the plaintiff. 9
(e) No damages or attorneys' fee may be assessed against the woman upon whom an 10
abortion was performed or induced, or attempted to be performed or induced, except in accordance 11
with subsection (d) of this section. 12
23-104-8. Protection of privacy in court proceedings. 13
In every civil or criminal proceeding, or any action brought under this chapter, the court 14
shall rule whether the anonymity of any woman upon whom an abortion has been performed or 15
induced, or attempted to be performed or induced shall be preserved from public disclosure if she 16
does not give her consent to the disclosure. The court, upon motion, or sua sponte, shall make a 17
ruling and, upon determining that her anonymity should be preserved, shall issue orders to the 18
parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of 19
individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity 20
from public disclosure. Each order shall be accompanied by specific written findings explaining 21
why the anonymity of the woman should be preserved from public disclosure, why the order is 22
essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable 23
less restrictive alternative exists. In the absence of written consent of the woman upon whom an 24
abortion has been performed or induced, or attempted to be performed or induced, anyone, other 25
than a public official, who brings an action under §§ 23-104-7(a) or 23-104-7(b), shall do so under 26
a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of 27
witnesses from the defendant or from attorneys for the defendant. 28
23-104-9. Litigation defense fund. 29
(a) There is created a restricted revenue account to be known as the “Rhode Island Pain-30
Capable Unborn Child Protection Litigation Fund”. The fund shall be maintained by the general 31
treasurer for the purpose of providing funds to pay for any costs and expenses incurred by 32
individuals relating to actions surrounding the defense of this law. 33
(b) The fund shall consist of: 34
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(1) Appropriations made to the account by the general assembly; and 1
(2) Any donations, gifts, or grants received by the account. 2
(c) The fund shall retain the interest income derived from the monies credited to the fund. 3
23-104-10. Construction. 4
(a) This chapter shall not be construed to repeal, by implication or otherwise, any 5
applicable law, rule or regulation, regulating or restricting abortion. 6
(b) If any provisions or provisions of this chapter, or the application of this chapter to any 7
person or circumstance is held invalid by a court of competent authority, that invalidity does not 8
affect other provisions or applications of this chapter which can be given effect without that invalid 9
provision or provisions or application of the provision or provisions, and to this end the provisions 10
of this chapter are declared to be separable and severable. 11
SECTION 2. This act shall take effect on January 1, 2026. 12
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EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO HEALTH AND SAFETY -- RHODE ISLAND PAIN-CAPABLE UNBORN
CHILD PROTECTION ACT
***
This act would create the Rhode Island Pain-Capable Unborn Child Protection Act, 1
prohibiting the performance or induction of an abortion of an unborn child capable of feeling pain, 2
unless necessary to prevent serious health risk to the unborn child’s mother. 3
This act would take effect on January 1, 2026. 4
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