H. R. 3541
To prohibit discrimination
against the unborn on the basis of sex or race, and for
IN THE HOUSE OF
December 1, 2011
Franks of Arizona (for
himself, Mr. Cole, Mr.
Bishop of Utah, Mr.
Graves of Georgia, Mr.
Brady of Texas, Mr.
Wilson of South Carolina, Mr.
Roe of Tennessee, Mr.
Smith of Texas, Mr.
Huizenga of Michigan, Mr.
Ross of Florida, Mr.
Kinzinger of Illinois, Mr.
Burton of Indiana, Mr.
Duncan of Tennessee, Mrs.
Broun of Georgia, Mr.
Miller of Florida, Mr.
Peterson, and Mr.
Smith of New Jersey)
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
Be it enacted by the
Senate and House of Representatives of the United States of
America in Congress assembled,
This Act may be cited as the
“Prenatal Nondiscrimination Act (PRENDA) of 2012”.
Findings and Constitutional authority.
Congress makes the following findings:
(1) Women are a vital
part of American society and culture and possess the same
fundamental human rights and civil rights as men.
(2) 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.
(3) 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 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 abortion.
(4) A “sex-selection
abortion” is an abortion undertaken for purposes of eliminating
an unborn child based on the sex or gender of the child.
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 2nd or 3rd trimester of pregnancy, 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.
(5) The targeted
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
abortions are not expressly prohibited by United States law or
the laws of 47 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.
(7) 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 3
States proscribe sex-selection abortion.
(8) Despite the
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”.
(9) A 1990 report by
Harvard University economist Amartya Sen, estimated that more
than 100 million women were “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. Current estimates of women
missing from the world range in the hundreds of millions.
(10) Countries with
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 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
(11) The American
medical community opposes sex-selection. The American Congress
of Obstetricians and Gynecologists, commonly known as “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
( commonly known as “ASRM” ) 2004 Ethics Committee Opinion on
sex-selection notes that central to the controversy of
sex-selection is the potential for “inherent gender
discrimination”, …the “risk of 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.” Embryo sex-selection, ASRM notes, 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 not only “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: “Sex selection 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 new eugenics.”
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.
abortions have the effect of diminishing the representation of
women in the American population, and therefore, the American
abortion reinforces sex discrimination and has no place in a
(15) The history of
the United States includes examples of sex discrimination. The
people of the United States ultimately responded in the
strongest possible legal terms by enacting a constitutional
amendment 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. The
elimination of discriminatory practices has been and is among
the highest priorities and greatest achievements of American
approving the discriminatory practice of sex-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 that is disfavored. Sex-selection abortions trivialize the
value of the unborn on the basis of sex, reinforcing sex
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
accordance with the above findings, Congress enacts the
following pursuant to Congress’ power under—
(1) the Commerce
(2) section 5 of the
14th amendment, including the power to enforce the prohibition
on government action denying equal protection of the laws; and
(3) 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 sex.
13 of title 18, United States Code, is amended by adding at the
end the following:
against the unborn on the basis of sex
“(1) performs an
abortion knowing that such abortion is sought based on the sex
or gender of the child;
“(2) uses force or
the threat of force to intentionally injure or intimidate any
person for the purpose of coercing a sex-selection abortion;
“(3) solicits or
accepts funds for the performance of a sex-selection abortion;
“(4) transports a
woman into the United States or across a State line for the
purpose of obtaining a sex-selection abortion;
or attempts to do so, shall be
fined under this title or imprisoned not more than 5 years, or
ACTION BY WOMAN ON WHOM ABORTION IS PERFORMED.—A woman
upon whom an abortion has been performed pursuant to a violation
of subsection (a)(2) may in a civil action against any person
who engaged in a violation of subsection (a) obtain appropriate
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 resulted from the
plaintiff’s criminal conduct or the plaintiff consented to the
RELIEF.—Appropriate relief in a civil action under this
“(A) objectively verifiable money
damages for all injuries, psychological and physical, including
loss of companionship and support, occasioned by the violation
of this section; and
“(B) punitive damages.
GENERAL.—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
this paragraph the term ‘qualified plaintiff’ means—
“(i) a woman upon whom an abortion is
performed or attempted in violation of this section;
“(ii) any person who is the spouse or
parent of a woman upon whom an abortion is performed in
violation of this section; or
“(iii) the Attorney General.
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.
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.
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
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
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.
Protection of privacy in
GENERAL.—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.
PARTIES, WITNESSES, AND COUNSEL.—The court shall issue
appropriate orders under paragraph (1) 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 her identity from
public disclosure. Each such order shall be accompanied by
specific written findings explaining why the anonymity of the
woman must be preserved from public disclosure, why the order is
essential to that end, how the order is narrowly tailored to
serve that interest, and why no reasonable less restrictive
REQUIRED.—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.
subsection shall not be construed to conceal the identity of the
plaintiff or of witnesses from the defendant or from attorneys
for the defendant.
“(1) 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 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—
“(A) save the life or preserve the
health of the unborn child;
“(B) remove a dead unborn child caused
by spontaneous abortion; or
“(C) remove an ectopic pregnancy.
“(2) The term
‘sex-selection abortion’ is an abortion undertaken for purposes
of eliminating an unborn child based on the sex or gender of 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 new item:
“250. Discrimination against the unborn on the basis of
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.
Rule of construction.
Nothing in this Act shall be
construed to require that a healthcare provider has an
affirmative duty to inquire as to the motivation for the
abortion, absent the healthcare provider having knowledge or
information that the abortion is being sought based on the sex
or gender of the child.
Amend the title so as to read:
“A bill to prohibit discrimination against the unborn on the
basis of sex or gender, and for other purposes.”.