H. R. 1822
IN THE HOUSE OF REPRESENTATIVES
March 31, 2009
Mr. Franks of Arizona (for himself, Mr. Aderholt, Mr. Akin, Mrs. Bachmann, Mr. Barrett of South Carolina, Mr. Boozman, Mr. Broun of Georgia, Mr. Burton of Indiana, Mr. Cole, Mr. Conaway, Mr. Forbes, Mr. Fortenberry, Mr. Garrett of New Jersey, Mr. Hunter, Mr. King of Iowa, Mr. Lamborn, Mr. Latta, Mr. Linder, Mr. Lipinski, Mr. McCotter, Mr. McHenry, Mr. Pence, Mr. Scalise, Mrs. Schmidt, Mr. Smith of New Jersey, Mr. Smith of Texas, Mr. Souder, Mr. Taylor, and Mr. Wilson of South Carolina) introduced the following bill; which was referred to the Committee on the Judiciary
To prohibit discrimination against the unborn on the basis of sex or race, and for other purposes.
This Act may be cited as the
Susan B. Anthony and Frederick
Douglass Prenatal Nondiscrimination Act of 2009.
Findings and Constitutional authority
The Congress makes the following findings:
Sex discrimination findings
Women are a vital part of American society and culture and possess the same fundamental human rights and civil rights as men.
United States law prohibits the dissimilar treatment for males and females who are similarly situated and prohibits sex discrimination in various contexts, including the provision of employment, education, housing, health insurance coverage, and athletics.
Sex is an
immutable characteristic, and is ascertainable at the earliest stages of human
development through existing medical technology and procedures commonly in use,
including maternal-fetal bloodstream DNA sampling, amniocentesis, chorionic
villus sampling or
CVS, and medical sonography. In addition to
medically assisted sex-determination carried out by medical professionals, a
growing sex-determination niche industry has developed and is marketing
low-cost commercial products, widely advertised and available, that aid in the
sex determination of an unborn child without the aid of medical professionals.
Experts have demonstrated that the sex-selection industry is on the rise and
predict that it will continue to be a growing trend in the United States. Sex
determination is always a necessary step to the procurement of a sex-selection
sex-selection abortion is an abortion undertaken for purposes of
eliminating an unborn child of an undesired sex. Sex-selection abortion is
barbaric, and described by scholars and civil rights advocates as an act of
sex-based or gender-based violence, predicated on sex discrimination. By
definition, sex-selection abortions do not implicate the health of the mother
of the unborn, but instead are elective procedures motivated by sex or gender
victims of sex-selection abortions performed in the United States and worldwide
are overwhelmingly female. The selective abortion of females is female
infanticide, the intentional killing of unborn females, due to the preference
for male offspring or
son preference. Son preference is
reinforced by the low value associated, by some segments of the world
community, with female offspring. Those segments tend to regard female
offspring as financial burdens to a family over their lifetime due to their
perceived inability to earn or provide financially for the family unit as can a
male. In addition, due to social and legal convention, female offspring are
less likely to carry on the family name.
Son preference is one
of the most evident manifestations of sex or gender discrimination in any
society, undermining female equality, and fueling the elimination of females’
right to exist in instances of sex-selection abortion.
abortions are not expressly prohibited by United States law and the laws of 48
States. Sex-selection abortions are performed in the United States. In a March
2008 report published in the Proceedings of the National Academy of Sciences,
Columbia University economists Douglas Almond and Lena Edlund examined the sex
ratio of United States-born children and found
evidence of sex
selection, most likely at the prenatal stage. The data revealed obvious
son preference in the form of unnatural sex-ratio imbalances
within certain segments of the United States population, primarily those
segments tracing their ethnic or cultural origins to countries where
sex-selection abortion is prevalent. The evidence strongly suggests that some
Americans are exercising sex-selection abortion practices within the United
States consistent with discriminatory practices common to their country of
origin, or the country to which they trace their ancestry. While sex-selection
abortions are more common outside the United States, the evidence reveals that
female feticide is also occurring in the United States.
The American public supports a prohibition of sex-selection abortion. In a March 2006 Zogby International poll, 86 percent of Americans agreed that sex-selection abortion should be illegal, yet only two States have proscribed sex-selection abortion.
failure of the United States to proscribe sex-selection abortion, the United
States Congress has expressed repeatedly, through Congressional resolution,
strong condemnation of policies promoting sex-selection abortion in the
Communist Government of China. Likewise, at the 2007 United
Nation’s Annual Meeting of the Commission on the Status of Women, 51st Session,
the United States’ delegation spearheaded a resolution calling on countries to
eliminate sex-selective abortion, a policy directly contradictory to the
permissiveness of current United States’ law, which places no restriction on
the practice of sex-selection abortion. The United Nations Commission on the
Status of Women has urged governments of all nations
to take necessary
measures to prevent … prenatal sex selection.
A 1990 report by
Harvard University economist Amartya Sen, estimated that more than 100 million
demographically missing from the world as early as
1990 due to sexist practices, including sex-selection abortion. Many experts
believe sex-selection abortion is the primary cause. As of 2008, estimates of
women missing from the world range in the hundreds of millions.
longstanding experience with sex-selection abortion—such as the Republic of
India, the United Kingdom, and the People’s Republic of China—have enacted
complete bans on sex-selection abortion, and have steadily continued to
strengthen prohibitions and penalties. The United States, by contrast, has no
law in place to restrict sex-selection abortion, establishing the United States
as affording less protection from sex-based feticide than the Republic of India
or the People’s Republic of China, whose recent practices of sex-selection
abortion were vehemently and repeatedly condemned by United States
congressional resolutions and by the United States’ Ambassador to the
Commission on the Status of Women. Public statements from within the medical
community reveal that citizens of other countries come to the United States for
sex-selection procedures that would be criminal in their country of origin.
Because the United States permits abortion on the basis of sex, the United
States may effectively function as a
safe haven for those who
seek to have American physicians do what would otherwise be criminal in their
home countries—a sex-selection abortion, most likely late-term.
medical community opposes sex-selection abortion. The American College of
Obstetricians and Gynecologists, commonly known as
in its February 2007 Ethics Committee Opinion, Number 360, that sex-selection
is inappropriate for family planning purposes because sex-selection
ultimately supports sexist practices. Likewise, the American
Society for Reproductive Medicine has opined that sex-selection for family
planning purposes is ethically problematic, inappropriate, and should be
Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex-ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.
Sex-selection abortions have the effect of diminishing the representation of women in the American population, and therefore, the American electorate.
Sex-selection abortion reinforces sex discrimination and has no place in a civilized society.
Racial discrimination findings
Minorities are a vital part of American society and culture and possess the same fundamental human rights and civil rights as the majority.
United Sates law prohibits the dissimilar treatment of persons of different races who are similarly situated. United States law prohibits discrimination on the basis of race in various contexts, including the provision of employment, education, housing, health insurance coverage, and athletics.
race-selection abortion is an abortion performed for purposes of
eliminating an unborn child because the child or a parent of the child is of an
undesired race. Race-selection abortion is barbaric, and described by civil
rights advocates as an act of race-based violence, predicated on race
discrimination. By definition, race-selection abortions do not implicate the
health of mother of the unborn, but instead are elective procedures motivated
by race bias.
No State has enacted law to proscribe the performance of race-selection abortions.
Race-selection abortions have the effect of diminishing the number of minorities in the American population and therefore, the American electorate.
Race-selection abortion reinforces racial discrimination and has no place in a civilized society.
The history of the United States includes examples of both sex discrimination and race discrimination. The people of the United States ultimately responded in the strongest possible legal terms by enacting constitutional amendments correcting elements of such discrimination. Women, once subjected to sex discrimination that denied them the right to vote, now have suffrage guaranteed by the 19th amendment. African-Americans, once subjected to race discrimination through slavery that denied them equal protection of the laws, now have that right guaranteed by the 14th amendment. The elimination of discriminatory practices has been and is among the highest priorities and greatest achievements of American history.
Implicitly approving the discriminatory practices of sex-selection abortion and race-selection abortion by choosing not to prohibit them will reinforce these inherently discriminatory practices, and evidence a failure to protect a segment of certain unborn Americans because those unborn are of a sex or racial makeup that is disfavored. Sex-selection and race-selection abortions trivialize the value of the unborn on the basis of sex or race, reinforcing sex and race discrimination, and coarsening society to the humanity of all vulnerable and innocent human life, making it increasingly difficult to protect such life. Thus, Congress has a compelling interest in acting—indeed it must act—to prohibit sex-selection abortion and race-selection abortion.
In accordance with the above findings, Congress enacts the following pursuant to Congress’ power under section 2 of the 13th amendment and section 5 of the 14th amendment to enforce those amendments, including the prohibition on government action denying equal protection of the laws, and the power to pass all legislation necessary and proper for the carrying into execution of these powers.
Discrimination against the unborn on the basis of race or sex
Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
Discrimination against the unborn on the basis of race or sex
performs an abortion knowing that such abortion is sought based on the sex, gender, color or race of the child, or the race of a parent of that child;
uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion; or
solicits or accepts funds for the purpose of financing a sex-selection abortion or a race-selection abortion;
The Attorney General may in a civil action obtain appropriate prospective injunctive relief to enjoin a violation of subsection (a).
Loss of Federal Funding
A violation of subsection (a) shall be deemed for the purposes of title VI of the Civil Rights Act of 1964 to be discrimination prohibited by section 601 of that Act.
Private Cause of Action
The father, if married to the mother at the time she receives a sex-selection abortion or a race-selection abortion, or, if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the unborn, may on behalf of the unborn in a civil action obtain appropriate relief with respect to a violation of subsection (a). The court may award a reasonable attorney’s fee as part of the costs in an action under this paragraph. Appropriate relief includes money damages for all injuries (whether psychological, physical, or financial, including loss of companionship and support) occasioned by the violation.
A physician, physician’s assistant, nurse, counselor, or other medical or mental health professional shall report known or suspected violations of any of this section to appropriate law enforcement authorities. Whoever violates this requirement shall be fined under this title or imprisoned not more than 1 year, or both.
It shall be the duty of the United States district courts, United States courts of appeal, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under this section.
A woman upon whom a sex-selection or race-selection abortion is performed may not be prosecuted or held civilly liable for any violation of this section, or for a conspiracy to violate this section.
abortion means the act of using or prescribing any
instrument, medicine, drug, or any other substance, device, or means with the
intent to terminate the clinically diagnosable pregnancy of a woman, with
knowledge that the termination by those means will with reasonable likelihood
cause the death of the unborn child, unless the act is done with the intent
save the life or preserve the health of the unborn child;
remove a dead unborn child caused by spontaneous abortion; or
remove an ectopic pregnancy.
The table of sections at the beginning of chapter 13 of title 18, United States Code, is amended by adding after the item relating to section 248 the following new item:
249. Discrimination against the unborn on the basis of race or sex.
If any portion of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the portions or applications of this Act which can be given effect without the invalid portion or application.