[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3541 Reported in House (RH)]

                                                 Union Calendar No. 349
112th CONGRESS
  2d Session
                                H. R. 3541

                          [Report No. 112-496]

 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


                              May 29, 2012

Additional sponsors: Mr. Cravaack, Mr. Canseco, Mr. Kelly, Mr. King of 
 Iowa, Mrs. Bachmann, Mr. Herger, Mr. Nunnelee, Mr. Poe of Texas, Mr. 
    Alexander, Mr. Duffy, Mr. Johnson of Ohio, Mr. Duncan of South 
    Carolina, Mr. Gowdy, Mr. Hall, Mr. Rokita, Mr. Luetkemeyer, Mr. 
 Kingston, Mr. Austin Scott of Georgia, Mr. Jordan, Mr. Sam Johnson of 
    Texas, Mr. Carter, Mr. Marchant, Mr. Conaway, Mrs. Ellmers, Mr. 
Goodlatte, Mr. Austria, Mr. Griffin of Arkansas, Mr. Flake, Mr. Hunter, 
Mr. Landry, Mr. Sensenbrenner, Mr. Gallegly, Mr. Pompeo, Mr. West, Mr. 
    Stivers, Mr. Olson, Mr. Schweikert, Mr. Gingrey of Georgia, Mr. 
 Culberson, Mr. Palazzo, Mr. Benishek, Mr. LoBiondo, Mr. Bucshon, and 
                               Mr. Gosar

                              May 29, 2012

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
    [For text of introduced bill, see copy of bill as introduced on 
                           December 1, 2011]

_______________________________________________________________________

                                 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 2012''.

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. 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.''
                    (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 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 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) 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) 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.
                                                 Union Calendar No. 349

112th CONGRESS

  2d Session

                               H. R. 3541

                          [Report No. 112-496]

_______________________________________________________________________

                                 A BILL

 To prohibit discrimination against the unborn on the basis of sex or 
                     race, and for other purposes.

_______________________________________________________________________

                              May 29, 2012

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed