IN THE SENATE OF THE UNITED STATES
January 28, 2021
Mr. Kennedy (for himself, Mrs. Blackburn, Mr. Braun, Mr. Cornyn, Mr. Cotton, Mr. Cramer, Mr. Cruz, Mr. Daines, Ms. Ernst, Mrs. Hyde-Smith, Mr. Inhofe, Mr. Marshall, Mr. Rounds, Mr. Sasse, and Mr. Thune) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To prohibit discrimination against the unborn on the basis of sex, and for other purposes.
This Act may be cited as the
Prenatal Nondiscrimination Act or
Findings and constitutional authority
Congress finds the following:
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-selection abortion is an abortion undertaken for purposes of eliminating an unborn child of an undesired sex. Sex-selection abortion is 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 bias.
The targeted victims of sex-selection abortions performed in the United States and worldwide are overwhelmingly female.
Sex-selection abortions are not expressly prohibited by United States law, and only 7 States ban abortions for reason of sex selection at some point in pregnancy. 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.
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.
The history of the United States includes many examples of sex discrimination. The people of the United States ultimately responded in the strongest possible legal terms by enacting a constitutional amendment correcting an element of this discrimination. Women, once subjected to sex discrimination that denied them the right to vote, now have suffrage guaranteed by the 19th Amendment to the Constitution of the United States. 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 by choosing not to prohibit them will reinforce sex discrimination, and coarsen society to the value of females. Thus, Congress has a compelling interest in acting—indeed it must act—to prohibit sex-selection abortion.
In accordance with the above findings, Congress enacts the following pursuant to Congress’ power under—
the Commerce Clause;
section 5 of the 14th Amendment to the Constitution of the United States, including the power to enforce the prohibition on government action denying equal protection of the laws; and
section 8 of article I of the Constitution of the United States 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 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 sex
performs an abortion knowing that such abortion is sought based on the sex or gender of the child;
uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection abortion;
solicits or accepts funds for the performance of a sex-selection abortion; or
transports a woman into the United States or across a State line for the purpose of obtaining a sex-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.
In 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.
Bar to prosecution
A woman upon whom a sex-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 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.
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—
the term abortion means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to—
kill the unborn child of a woman known to be pregnant; or
terminate the pregnancy of a woman known to be pregnant, with an intention other than—
after viability to produce a live birth and preserve the life and health of the child born alive; or
to remove a dead unborn child; and
the term sex-selection abortion means an abortion undertaken for purposes of eliminating an unborn child of an undesired sex.
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 249 the following:
250. Discrimination against the unborn on the basis of sex.
If any portion of this Act, or the amendments made by 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.