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 for 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, and is 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 medical sonography. In addition to medically assisted sex-determination carried out by medical professionals, 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. (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. 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 and the laws of 48 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. (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 two States have proscribed sex-selection abortion. (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 eliminate 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. As of 2008, 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 complete bans on sex-selection abortion, 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. (K)The American medical community opposes sex-selection abortion. The American College of Obstetricians and Gynecologists, commonly known as ACOG, stated in its February 2007 Ethics Committee Opinion, Number 360, that sex-selection is inappropriate for family planning purposes because sex-selection ultimately supports sexist practices. Likewise, the American Society for Reproductive Medicine has opined that sex-selection for family planning purposes is ethically problematic, inappropriate, and should be discouraged. (L)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. (M)Sex-selection abortions have the effect of diminishing the representation of women in the American population, and therefore, the American electorate. (N)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 Sates law prohibits the dissimilar treatment of persons of different races who are similarly situated. United States law prohibits discrimination on the basis of race in various contexts, including the provision of 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)No State has enacted law to proscribe the performance of race-selection abortions. (E)Race-selection abortions have the effect of diminishing the number of minorities in the American population and therefore, the American electorate. (F)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 section 2 of the 13th amendment and section 5 of the 14th amendment to enforce those amendments, including the prohibition on government action denying equal protection of the laws, and the power to pass all legislation necessary and proper for the carrying into execution of these powers.

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:

249.

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; or (3)solicits or accepts funds for the purpose of financing a sex-selection abortion or a 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)

Injunctive relief

The Attorney General may in a civil action obtain appropriate prospective injunctive relief to enjoin a violation of subsection (a). (2)

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. (3)

Private Cause of Action

The father, if married to the mother at the time she receives a sex-selection abortion or a race-selection abortion, or, if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the unborn, may on behalf of the unborn in a civil action obtain appropriate relief with respect to a violation of subsection (a). The court may award a reasonable attorney’s fee as part of the costs in an action under this paragraph. Appropriate relief includes money damages for all injuries (whether psychological, physical, or financial, including loss of companionship and support) occasioned by the violation. (c)

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. (d)

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. (e)

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. (f)

Definition

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— (1)save the life or preserve the health of the unborn child; (2)remove a dead unborn child caused by spontaneous abortion; or (3)remove an ectopic pregnancy.

(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 248 the following new item:

249. Discrimination against the unborn on the basis of race or sex.