Summary: The bill changes current abortion statute in DelCode to explicitly prohibit abortions once an unborn child reaches 5 months (approximately 20 weeks). This is based on the understanding that the unborn can feel pain at this point in utero. The bill includes exceptions for when the mother’s life is deemed to be at serious risk, or when the preborn baby is diagnosed with severe lethal conditions that are expected to result in death. SB 251 also establishes reporting requirements as well as criminal penalties for violations to this Act.

Analysis: SB 251 would significantly restructure Delaware’s abortion law by repealing portions of the existing statutory framework governing abortion and replacing them with the Pain-Capable Unborn Child Protection Act. Prior to the overturning of Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, viability existed as the standard for It establishes a new legal threshold for abortion restrictions based on the concept of pain capability for the preborn rather than the subjectively defined term “viability” that is currently used in DelCode. The Dobbs decision placed the issue of abortion back to the states, making a bill like SB 251 completely constitutional to decide.

The bill prohibits most abortions once the preborn reaches 5 months (20 weeks), the stage when a substantial amount of medical evidence states that the preborn child can feel pain.

Under the bill:

• The probsablepost-fertilization age of the preborn child must be determined prior to an abortion, except in cases of medical emergency.

• Abortions after the 5-month threshold would only be permitted if the preborn child has a lethal condition incompatible with life or it’s necessary to prevent the death of the mother or serious and irreversible physical impairment of a major bodily function.

• Psychological or emotional conditions do not qualify as a serious health condition under the Act.

  • In such cases, the method most likely to preserve the life of the preborn child must be used, whenver medically feasible.

The bill also includes several regulatory and enforcement provisions, including:

• Mandatory reporting requirements for abortion providers, including gestational age determinations and abortion methods used.

• Annual public statistical reporting by the Delaware Department of Health and Social Services, with safeguards to protect patient anonymity.

• Criminal penalties, including a Class D felony, for intentionally or recklessly performing an abortion in violation of the law.

• Civil causes of action, allowing the woman or the father of the unborn child to seek damages if an abortion is performed in violation of the statute.

• Explicit protection ensuring that no criminal penalties apply to the woman receiving the abortion.

Prior to the U.S. Supreme Court’s decision in  (2022), abortion regulations were largely constrained by federal constitutional standards tied to viability, generally understood to occur later in pregnancy. The Dobbs decision returned primary authority over abortion regulation to the states, prompting legislatures across the country to reconsider existing statutes.

Pain-capable protections similar to those proposed in SB 251 have been introduced or enacted in a number of states, generally establishing abortion limits around 20 weeks of pregnancy based on fetal pain considerations.