[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 147 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 147
To prohibit discrimination against the unborn on the basis of sex or
race, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 3, 2017
Mr. Franks of Arizona introduced the following bill; which was referred
to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit discrimination against the unborn on the basis of sex or
race, 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 2017''.
SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY.
(a) Findings.--The Congress makes the following findings:
(1) Sex discrimination findings.--
(A) Women are a vital part of American society and
culture and possess the same fundamental human rights
and civil rights as men.
(B) 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.
(C) 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.
(D) A ``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.
(E) 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.
(F) Sex-selection 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.
(G) 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
eight States proscribe sex-selection abortion. In a
2012 poll conducted by the Charlotte Lozier Institute,
77 percent of Americans agreed that sex-selection
abortion should be illegal.
(H) 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''.
(I) 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. More recent estimates of
women missing from the world range in the hundreds of
millions.
(J) 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
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.
(K) The American 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 ``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''. 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 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''.
(L)(i) Sex-selection abortions are often coerced,
and therefore, the opposite of ``choice''. 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.
(ii) 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.
(iii) 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 to
``save'' the daughters they had aborted.
(iv) 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.
(v) A growing body of research documents the
relationship between intimate partner violence and
reproductive coercion.
(M) 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, and ``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''.
(N) 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.
(O) Sex-selection abortions have the effect of
diminishing the representation of women in the American
population, and therefore, the American electorate.
(P) Sex-selection abortion reinforces sex
discrimination and has no place in a civilized society.
(2) Racial discrimination findings.--
(A) Minorities are a vital part of American society
and culture and possess the same fundamental human
rights and civil rights as the majority.
(B) United States law prohibits discrimination on
the basis of race in various contexts, including
employment, education, housing, health insurance
coverage, and athletics.
(C) A ``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.
(D) 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 clinic.
(E) 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.
(F) Only one State, Arizona, has enacted law to
proscribe the performance of race-selection abortions.
(G) Race-selection abortions have the effect of
diminishing the number of minorities in the American
population and therefore, the American electorate.
(H) Race-selection abortion reinforces racial
discrimination and has no place in a civilized society.
(3) General findings.--
(A) 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.
(B) 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.
(b) Constitutional Authority.--In accordance with the above
findings, Congress enacts the following pursuant to Congress' power
under--
(1) the Commerce Clause;
(2) section 2 of the 13th Amendment;
(3) section 5 of the 14th Amendment, including the power to
enforce the prohibition on government action denying equal
protection of the laws; and
(4) 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 RACE OR 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 race or
sex
``(a) In General.--Whoever knowingly--
``(1) 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;
``(2) 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;
``(3) solicits or accepts funds for the performance of a
sex-selection abortion or a race-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 race-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 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.
``(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
or abortion 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) 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;
``(iii) the father of an unborn child who
is the subject of an abortion performed or
attempted in violation of subsection (a); or
``(iv) 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) Exception.--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.
``(d) 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.
``(e) 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.
``(f) 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.
``(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 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.
``(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) Definition.--In this section--
``(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' means an abortion
undertaken for purposes of eliminating an unborn child of an
undesired sex; and
``(3) the term `race-selection 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 race.''.
(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 race or
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.
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