[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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