H. R. 447
IN THE HOUSE OF REPRESENTATIVES
February 1, 2013
Mr. Franks of Arizona (for himself, Mr. Lipinski, Mr. Peterson, Mr. Alexander, Mr. Amodei, Mrs. Bachmann, Mr. Bachus, Mr. Benishek, Mr. Bilirakis, Mr. Bishop of Utah, Mrs. Black, Mrs. Blackburn, Mr. Gibbs, Mr. Bonner, Mr. Boustany, Mr. Brady of Texas, Mr. Broun of Georgia, Mr. Buchanan, Mr. Bucshon, Mr. Carter, Mr. Cassidy, Mr. Chabot, Mr. Cole, Mr. Conaway, Mr. Cotton, Mr. Cramer, Mr. Culberson, Mr. Daines, Mr. DesJarlais, Mr. Duncan of Tennessee, Mr. Duncan of South Carolina, Mrs. Ellmers, Mr. Farenthold, Mr. Fincher, Mr. Fleming, Mr. Flores, Mr. Forbes, Mr. Fortenberry, Mr. Garrett, Mr. Gohmert, Mr. Gowdy, Mr. Graves of Georgia, Mr. Griffin of Arkansas, Mr. Grimm, Mr. Guthrie, Mr. Hall, Mr. Harris, Mrs. Hartzler, Mr. Huelskamp, Mr. Huizenga of Michigan, Mr. Hultgren, Ms. Jenkins, Mr. Johnson of Ohio, Mr. Jones, Mr. Jordan, Mr. Kelly, Mr. King of Iowa, Mr. LaMalfa, Mr. Lamborn, Mr. Latta, Mr. Long, Mr. Luetkemeyer, Mr. Marchant, Mr. McCaul, Mr. McKinley, Mr. Mica, Mr. Miller of Florida, Mr. Mullin, Mr. Mulvaney, Mr. Neugebauer, Mr. Nugent, Mr. Nunnelee, Mr. Olson, Mr. Palazzo, Mr. Pearce, Mr. Pitts, Mr. Poe of Texas, Mr. Pompeo, Mrs. Roby, Mr. Roe of Tennessee, Mr. Rogers of Alabama, Mr. Salmon, Mr. Schweikert, Mr. Smith of Texas, Mr. Stewart, Mr. Stivers, Mr. Walberg, Mr. Weber of Texas, Mr. Westmoreland, Mr. Wilson of South Carolina, and Mr. Yoder) 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
Prenatal Nondiscrimination Act
(PRENDA) of 2013
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 of 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 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 obstetric ultrasound. In addition to
medically assisted sex determination, 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 sex selection 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 abortion.
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.
Sex-selection abortions are typically late-term abortions performed in the 2d
or 3rd trimester of pregnancy, often after the unborn child has developed
sufficiently to feel pain. Substantial medical evidence proves that an unborn
child can experience pain at 20 weeks after conception, and perhaps
substantially earlier. 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 bias.
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 or the laws of 46
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 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 four States proscribe sex-selection abortion. In a 2012 poll conducted by the Charlotte Lozier Institute, 80 percent of Americans agreed that sex-selection abortion should be illegal.
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
condemn 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. More recent 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
restrictions on sex selection, 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
resolution 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. The American Congress of Obstetricians
and Gynecologists (
ACOG) stated in its 2007 Ethics Committee
Opinion, Number 360, that sex selection is inappropriate because it
ultimately supports sexist practices. The American Society of
Reproductive Medicine (
ASRM) published a 2004 Ethics Committee
Opinion, noting that central to the controversy of sex selection in the use of
assisted reproductive technology (
ART) is the potential for
inherent gender discrimination, … the
psychological harm to sex-selected offspring (i.e., by placing on them
expectations that are too high), … and
reinforcement of gender
bias in society as a whole. Sex selection in ART remains
vulnerable to the judgment that no matter what its basis, [the method]
identifies gender as a reason to value one person over another, and it supports
socially constructed stereotypes of what gender means. In doing so, it
reinforces possibilities of unfair discrimination, but may
trivialize human reproduction by making it depend on the selection of
nonessential features of offspring. The ASRM ethics opinion continues,
ongoing problems with the status of women in the United States make it
necessary to take account of concerns for the impact of sex-selection on goals
of gender equality. The American Association of Pro-Life Obstetricians
and Gynecologists, an organization with hundreds of members—many of whom are
former abortionists—makes the following declaration:
abortions are more graphic examples of the damage that abortion inflicts on
women. In addition to increasing premature labor in subsequent pregnancies,
increasing suicide and major depression, and increasing the risk of breast
cancer in teens who abort their first pregnancy and delay childbearing, sex
selection abortions are often targeted at fetuses simply because the fetus is
female. As physicians who care for both the mother and her unborn child, the
American Association of Pro-Life Obstetricians and Gynecologists vigorously
opposes aborting fetuses because of their gender. The President’s
Council on Bioethics published a Working Paper stating the council’s belief
that society’s respect for reproductive freedom does not prohibit the
regulation or prohibition of
sex control, defined as the use of
various medical technologies to choose the sex of one’s child. The publication
expresses concern that
sex control might lead to … dehumanization and a
are often coerced, and therefore, the opposite of
Researchers at the University of California at Berkeley and the University of
California at San Francisco completed a study of Indian-American women who had
undergone sex-selection abortions in the United States. The study found that
sex-selection abortions are often the product of violent coercion.
Women who carried a female unborn child to term said they were subject to varying degrees of verbal and physical abuse, which may be to the point of actually inducing a sex-selection abortion. A woman may be denied food, water, and rest to induce an abortion where the family determines that the woman is carrying a female unborn child. Some women described being hit, pushed, choked and kicked in the abdomen in a husband’s attempt to forcibly terminate a female unborn child. Pregnancy is already a vulnerable time for women; the most common cause of death for pregnant women in the United States is homicide, often at the hands of the unborn child’s father.
The study concluded that sex
selection can be the product of an abusive environment created by marital
partners, an extended family, or both. One-third of the women in the study
reported that a history of family violence exacerbated when they did not give
birth to a son. Notably, because the researchers had reason to fear for the
participants’ exposure to marital violence, all subjects received information
on local South Asian women’s organizations offering assistance for victims of
family violence. The failure to bear a son is a serious matter; the birth of a
daughter could result in violence or a brutal death for the mother at the hands
of the father and mother-in-law. For example, photojournalist Walter Astrada’s
renowned documentary tells the story of an Indian woman who was tortured and
abandoned by her husband and mother-in-law for refusing to abort twin girls.
Sex-selection abortion has long been considered a form of violence against
women, and the study proved that both the women and the unborn daughter are
victims of violence where sex-selection abortion is legally available but not
sought by the mother. Forty percent of the women had terminated prior
pregnancies when they learned that the unborn child was female. Of the women
who discovered they were pregnant with a girl during the interview period, 89
percent underwent a sex-selection abortion. Among those that did not abort
their unborn daughters, 100 percent expressed ambivalence about prior
sex-selection abortions. Further, 100 percent cited physical and psychological
trauma from the past abortions as reasons for not seeking another. Most
tragically, 100 percent expressed guilt, shame and sadness over their inability
save the daughters they had aborted.
Coercive sex-selection abortions are suspected in other western countries as well. Following a 2012 investigation of sex-selection abortion in the United Kingdom, Dr. Tony Falconer, President of the Royal College of Obstetrics and Gynaecology, raised the specter that women may be experiencing violence and coercion to force sex-selection abortions.
A growing body of research documents the relationship between intimate partner violence and reproductive coercion.
Sex-selection abortion harms women.
Researchers at the University of California found that women in the United
States who undergo sex-selection abortions are at increased risk for
psychological and physical morbidity, documented by their descriptions of
depression, anxiety, chronic pain, physical abuse, closely spaced pregnancies,
forced abortions. Further, 100 percent of the study
participants who chose to carry unborn baby girls cited physical and
psychological trauma from past abortions as reasons for not seeking another.
Similarly, Indian-Canadian counselor, Aruna Papp, stated publicly that in her
30 years of experience treating Indian-Canadian women, she has found that
sex-selection abortion is the leading cause of mental illness among women in
the Punjabi Health Services, Peel region, and the leading cause of depression
and attempted suicide in the South Asian Settlement Services in Scarborough.
Some of Papp’s patients obtained their sex-selection abortions in Michigan and
New York. Papp also reports
many other physical ailments that are
related to two, three, or four abortions.
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 States law prohibits discrimination on the basis of race in various contexts, including 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.
A thorough review
of the history of the American population control movement and its close
affiliation with the American Eugenics Society reveals a history of targeting
certain racial or ethnic groups for
family planning. This
history likely contributes to the current statistic that a Black baby is five
times as likely to be aborted as a White baby, often in a federally subsidized
Abortion is the leading cause of death in the Black community. With approximately 450,000 Black abortions per year, more Black Americans lose their lives each year to abortion than to cancer, heart disease, diabetes, AIDS, and violence combined. These statistics are derived by comparing the abortion statistics of the Alan Guttmacher Institute (formerly the research arm of Planned Parenthood) to the National Vital Statistics annual reports showing the number of deaths by cause and race. The numbers for each of these variables have remained relatively constant from year to year, since 2005.
Only one State, Arizona, 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—
the Commerce Clause;
section 2 of the 13th Amendment;
section 5 of the 14th Amendment, including the power to enforce the prohibition on government action denying equal protection of the laws; and
section 8 of article I to make all laws necessary and proper for the carrying into execution of powers vested by the Constitution in the Government of the United States.
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;
solicits or accepts funds for the performance of a sex-selection abortion or a race-selection abortion; or
transports a woman into the United States or across a State line for the purpose of obtaining a sex-selection abortion or race-selection abortion;
Civil action by woman on whom abortion is performed
A woman upon whom an abortion has been performed or attempted in violation of subsection (a)(2) may in a civil action against any person who engaged in a violation of subsection (a) obtain appropriate relief.
Civil action by relatives
The father of an unborn child who is the subject of an abortion performed or attempted in violation of subsection (a), or a maternal grandparent of the unborn child if the pregnant woman is an unemancipated minor, may in a civil action against any person who engaged in the violation, obtain appropriate relief, unless the pregnancy or abortion resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.
Appropriate relief in a civil action under this subsection includes—
objectively verifiable money damages for all injuries, psychological and physical, including loss of companionship and support, occasioned by the violation of this section; and
A qualified plaintiff may in a civil action obtain injunctive relief to prevent an abortion provider from performing or attempting further abortions in violation of this section.
this paragraph the term
qualified plaintiff means—
a woman upon whom an abortion is performed or attempted in violation of this section;
a maternal grandparent of the unborn child if the woman upon whom an abortion is performed or attempted in violation of this section is an unemancipated minor;
the father of an unborn child who is the subject of an abortion performed or attempted in violation of subsection (a); or
the Attorney General.
Attorneys fees for plaintiff
The court shall award a reasonable attorney’s fee as part of the costs to a prevailing plaintiff in a civil action under this subsection.
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.
Loss of federal funding
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.
Protection of privacy in court proceedings
Except to the extent the Constitution or other similarly compelling reason requires, in every civil or criminal action under this section, the court shall make such orders as are necessary to protect the anonymity of any woman upon whom an abortion has been performed or attempted if she does not give her written consent to such disclosure. Such orders may be made upon motion, but shall be made sua sponte if not otherwise sought by a party.
Orders to parties, witnesses, and counsel
The court shall issue appropriate orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the identity of the woman described in paragraph (1) from public disclosure.
In the absence of written consent of the woman upon whom an abortion has been performed or attempted, any party, other than a public official, who brings an action under this section shall do so under a pseudonym.
This subsection shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.
In 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 to—
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;
abortion means an abortion undertaken for purposes of eliminating an
unborn child of an undesired sex; and
abortion means an abortion performed for purposes of eliminating an
unborn child because the child or a parent of the child is of an undesired
250. 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.