S-4880-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Mike Rounds (R-SD)
What it does
This bill would add a new federal criminal statute (18 U.S.C. § 1532) prohibiting physicians from performing what it defines as a "dismemberment abortion" — a procedure in which an unborn child is removed from the uterus piece by piece using clamps, forceps, tongs, scissors, or similar instruments. Violators would face fines and/or up to two years in federal prison. The bill includes a narrow exception when the procedure is necessary to save the life of the mother due to a physical disorder, illness, or injury, but does not include an exception for rape, incest, or the mental health of the mother. It also creates a private civil right of action for the woman or, in the case of a minor, her parent, to sue the physician for damages, including treble damages and attorney's fees.
Who benefits
Pregnant people who, under the bill's framing, are protected from having this procedure performed on them without their full awareness of alternatives, and who gain a civil cause of action against physicians. Parents of minors who undergo the procedure in violation of the ban. Physicians who do not perform this procedure and face no competitive disadvantage from those who do. Anti-abortion advocacy organizations whose policy goals are advanced. Fetuses at the gestational stages at which this procedure is typically performed (generally second trimester).
Who is hurt
Pregnant people who would have chosen this procedure and for whom alternative methods may be medically less suitable, less available, or more costly. Physicians who perform dilation and evacuation (D&E) procedures, who would face criminal liability and civil suits. Abortion providers broadly, who may face increased litigation risk and operational uncertainty. Patients in states with limited abortion access who may have fewer procedural alternatives. People whose pregnancies result from rape or incest, who receive no exception under this bill. People facing serious fetal anomalies incompatible with life, who are not explicitly excepted. Medical schools and residency programs that train physicians in this procedure.
Supporters argue
Supporters argue that the dilation and evacuation procedure is uniquely brutal — involving the live dismemberment of a fetus — and that a civilized society has a compelling interest in prohibiting it regardless of the broader abortion debate. They point to the Supreme Court's ruling in Gonzales v. Carhart (2007), which upheld the federal Partial-Birth Abortion Ban Act on similar grounds, establishing that Congress may prohibit specific abortion methods even without a health exception when medical uncertainty exists. They further contend that the bill's life-of-the-mother exception preserves access in genuine emergencies, and that the civil remedy structure empowers women rather than punishing them.
Opponents argue
Opponents argue that dilation and evacuation is the safest and most common second-trimester abortion method, used in approximately 95% of abortions performed after 15 weeks according to the Guttmacher Institute, and that banning it would effectively eliminate safe second-trimester abortion access rather than merely restricting one technique. They contend the bill's lack of exceptions for rape, incest, fetal anomaly, or maternal mental health imposes severe burdens on vulnerable patients. They further argue that post-Dobbs, the constitutional landscape has shifted in ways that may invite broader restrictions, but that the absence of a health exception raises serious questions under existing precedent from Stenberg v. Carhart (2000), which struck down a similar state ban for lacking such an exception.
Constitutional context
Post-Dobbs v. Jackson Women's Health Organization (2022), there is no longer a federal constitutional right to abortion, and the authority to regulate abortion has been returned to legislatures. However, the bill's lack of a maternal health exception may still face challenge under Stenberg v. Carhart (2000), which struck down a Nebraska partial-birth abortion ban partly for lacking a health exception — though Gonzales v. Carhart (2007) later narrowed that requirement. The bill also invokes the Commerce Clause ("in or affecting interstate or foreign commerce") as its jurisdictional hook, consistent with how the existing Partial-Birth Abortion Ban Act (18 U.S.C. § 1531) was structured and upheld.
Checks and balances
Congress gains authority to criminalize a specific medical procedure performed by physicians; the Executive Branch (DOJ) would enforce criminal penalties; federal courts would adjudicate both criminal prosecutions and civil suits, and would serve as the primary check on the law's constitutionality and scope.
Historical precedent
The federal Partial-Birth Abortion Ban Act of 2003 (18 U.S.C. § 1531) similarly prohibited a specific abortion procedure and was upheld by the Supreme Court in Gonzales v. Carhart (2007), providing the closest direct analogue to this bill's structure and approach.