[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2326 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 2326

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 19, 2018

  Mr. Kennedy 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, 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 of 
2018'' or ``PRENDA''.

SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY.

    (a) Findings.--Congress finds the following:
            (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) A ``sex-selection abortion'' is an abortion undertaken 
        for purposes of eliminating an unborn child of an undesired 
        sex. Sex-selection abortion is described by scholars and civil 
        rights advocates as an act of sex-based or gender-based 
        violence, predicated on sex discrimination. By definition, sex-
        selection abortions do not implicate the health of the mother 
        of the unborn, but instead are elective procedures motivated by 
        sex or gender bias.
            (4) The targeted victims of sex-selection abortions 
        performed in the United States and worldwide are overwhelmingly 
        female.
            (5) Sex-selection abortions are not expressly prohibited by 
        United States law, and only 7 States ban abortions for reason 
        of sex selection at some point in pregnancy. 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.
            (6) Sex-selection abortions have the effect of diminishing 
        the representation of women in the American population, and 
        therefore, the American electorate.
            (7) Sex-selection abortion reinforces sex discrimination 
        and has no place in a civilized society.
            (8) The history of the United States includes many examples 
        of sex discrimination. The people of the United States 
        ultimately responded in the strongest possible legal terms by 
        enacting a constitutional amendment correcting an element of 
        this 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.
            (9) Implicitly approving the discriminatory practices of 
        sex-selection abortion by choosing not to prohibit them will 
        reinforce sex discrimination, and coarsen society to the value 
        of females. 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 to the Constitution of 
        the United States, including the power to enforce the 
        prohibition on government action denying equal protection of 
        the laws; and
            (3) section 8 of article I of the Constitution of the 
        United States 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 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) Bar to Prosecution.--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.
    ``(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) Definitions.--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--
                    ``(A) kill the unborn child of a woman known to be 
                pregnant; or
                    ``(B) terminate the pregnancy of a woman known to 
                be pregnant, with an intention other than--
                            ``(i) after viability to produce a live 
                        birth and preserve the life and health of the 
                        child born alive; or
                            ``(ii) to remove a dead unborn child; and
            ``(2) the term `sex-selection abortion' means an abortion 
        undertaken for purposes of eliminating an unborn child of an 
        undesired sex.''.
    (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 amendments made by 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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