[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3290 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3290

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 13, 2012

   Mr. Vitter (for himself, Mr. DeMint, Ms. Ayotte, Mr. Coburn, Mr. 
Sessions, Mr. Lee, Mr. Cornyn, Mr. Risch, Mr. Johnson of Wisconsin, Mr. 
 Chambliss, Mr. Isakson, Mr. Johanns, Mr. Inhofe, Mrs. Hutchison, Mr. 
Roberts, Mr. Cochran, Mr. Hoeven, Mr. Wicker, Mr. Coats, Mr. Enzi, Mr. 
   Graham, Mr. Boozman, Mr. Thune, Mr. Barrasso, Mr. Crapo, and Mr. 
  McConnell) 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 2012''.

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.
                                 <all>