[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3541 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 3541
To prohibit discrimination against the unborn on the basis of sex or
race, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 1, 2011
Mr. Franks of Arizona (for himself, Mr. Cole, Mr. Huelskamp, Mr.
Lankford, Mr. Fleming, Mr. Bishop of Utah, Mr. Pence, Mr. Chabot, Mr.
Posey, Mr. Graves of Georgia, Mr. Gohmert, Mr. Hultgren, Mr. Garrett,
Mrs. Schmidt, Mr. Brady of Texas, Mr. Forbes, Mr. Wilson of South
Carolina, Mr. Stutzman, Mrs. Lummis, Mr. Roe of Tennessee, Mr.
Neugebauer, Mr. Harris, Mr. Yoder, Mr. Walberg, Mr. Boren, Mr.
Bartlett, Mr. Smith of Texas, Mr. Lipinski, Mrs. Black, Mr. Boustany,
Mr. Westmoreland, Mr. Pearce, Mr. Huizenga of Michigan, Mr. Ross of
Florida, Mr. Kinzinger of Illinois, Mr. Burton of Indiana, Mr. Akin,
Mr. Fortenberry, Mr. Jones, Mr. Duncan of Tennessee, Mrs. Blackburn,
Mr. Crawford, Mr. McCaul, Mr. Broun of Georgia, Mr. Manzullo, Mr.
McHenry, Mr. Latta, Mrs. Roby, Mr. Scalise, Mr. Farenthold, Mr.
McCotter, Mr. Coble, 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
_______________________________________________________________________
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 ``Susan B. Anthony and Frederick
Douglass Prenatal Nondiscrimination Act of 2011''.
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 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. 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.
(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 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.
(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 3
States proscribe 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 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. Current 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
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 States 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) Only one State, Arizona, 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--
(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 the 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 the violation 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 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.
``(g) 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 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.
<all>