[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 138 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 138
To prohibit discrimination against the unborn on the basis of sex or
gender, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 24 (legislative day, January 3), 2013
Mr. Vitter (for himself, Mr. Coats, Mr. Boozman, Mr. Risch, Mr. Enzi,
Mr. Coburn, Mr. Chambliss, and Mr. Johanns) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To prohibit discrimination against the unborn on the basis of sex or
gender, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Prenatal Nondiscrimination Act
(PRENDA) of 2013''.
SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY.
(a) Findings.--The 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 sex-selection abortion.
(6) Sex-selection 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 late-term.
(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''.
(12) 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.
(13) Sex-selection abortions have the effect of diminishing
the representation of women in the American population, and
therefore, the American electorate.
(14) Sex-selection abortion reinforces sex discrimination
and has no place in a civilized society.
(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 history.
(16) Implicitly 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 abortion.
(b) Constitutional Authority.--In accordance with the above
findings, Congress enacts the following pursuant to Congress' power
under--
(1) the Commerce Clause;
(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.
SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE BASIS OF SEX.
(a) In General.--Chapter 13 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 250. Discrimination against the unborn on the basis of sex
``(a) In General.--Whoever knowingly--
``(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; or
``(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 both.
``(b) Civil Remedies.--
``(1) Civil 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 relief.
``(2) 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
resulted from the plaintiff's criminal conduct or the plaintiff
consented to the abortion.
``(3) Appropriate relief.--Appropriate relief in a civil
action under this subsection includes--
``(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.
``(4) Injunctive relief.--
``(A) In 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 section.
``(B) Definition.--In 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.
``(5) 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.
``(c) 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.
``(d) Reporting Requirement.--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.
``(e) Expedited Consideration.--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.
``(f) Exception.--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.
``(g) Protection of Privacy in Court Proceedings.--
``(1) 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.
``(2) Orders to 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
alternative exists.
``(3) Pseudonym 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.
``(4) Limitation.--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.
``(h) Definitions.--
``(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 child.''.
(b) Clerical Amendment.--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 sex.''.
SEC. 4. SEVERABILITY.
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.
SEC. 5. 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.
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