[House Report 112-496]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-496

======================================================================



 
            PRENATAL NONDISCRIMINATION ACT (PRENDA) OF 2012

                                _______
                                

  May 29, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3541]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3541) to prohibit discrimination against the unborn 
on the basis of sex or race, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page

The Amendment....................................................     2

Purpose and Summary..............................................     6

Background and Need for the Legislation..........................     6

Hearings.........................................................    29

Committee Consideration..........................................    30

Committee Votes..................................................    30

Committee Oversight Findings.....................................    38

New Budget Authority and Tax Expenditures........................    38

Congressional Budget Office Cost Estimate........................    38

Performance Goals and Objectives.................................    40

Advisory on Earmarks.............................................    40

Section-by-Section Analysis......................................    40

Changes in Existing Law Made by the Bill, as Reported............    43

Dissenting Views.................................................    45

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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.

                          Purpose and Summary

    H.R. 3541, the ``Prenatal Nondiscrimination Act (PRENDA) of 
2012,'' bans the performance of a sex-selection or race-
selection abortion, coercion to undergo either, the acceptance 
or solicitation of funds for either, and the transportation of 
a woman into the United States or across state lines to obtain 
either.\1\ Persons violating the law would be subject to fines 
or a maximum of 5 years of imprisonment, or both, and a civil 
cause of action for damages.\2\ The bill's findings provide 
that the proscribed abortions are purely elective procedures 
sought for discriminatory purposes that do not implicate the 
health of the mother.\3\
---------------------------------------------------------------------------
    \1\H.R. 3541, 112th Cong. Sec. 250(a)-(d) (2011).
    \2\Id. Sec. 250(a).
    \3\Id. Sec. 2(a)(1)(D); Sec. 2(a)(2)(C).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    Over the past decade, evidence has come to light suggesting 
that abortion has become a tool of sex and race discrimination 
in America, for both individuals and government funded 
entities. H.R. 3541 provides that no one may discriminate 
against an unborn child by knowingly subjecting that child to 
an abortion on the basis of sex or race.

                         SEX-SELECTION ABORTION

    Sex-selection abortion is defined in the findings of H.R. 
3541 as ``an abortion undertaken for the purpose of eliminating 
a child of an undesired sex.'' While sex-selection can be 
achieved outside the abortion context through sperm sorting and 
embryo selection, these techniques are not widely available or 
affordable, and make up a small fraction of sex-selection 
procedures.\4\ Most sex-selection takes the form of 
abortion.\5\
---------------------------------------------------------------------------
    \4\Jason Abrevaya, Are There Missing Girls in the United States? 
Evidence from Birth Data, American Journal of Applied Economics, vol. 
1, no. 2, p. 5, available at http://www.aeaweb.org/
articles.php?doi=10.1257/app.1.2.1
    \5\Id.
---------------------------------------------------------------------------
    The revelation that hundreds of millions of girls are 
``missing'' due to sex-selection and other deadly 
discriminatory practices came to light when Nobel Prize winner 
Amartya Sen penned his famous article for the The New York 
Review of Books documenting that approximately 100 million 
women were demographically absent from the world as early as 
1990.\6\ Because of scant reporting in the third world, the 
full extent of this problem is unknown. Current estimates are 
that approximately 200 million women and girls are 
``demographically missing'' from the world due to sex-selection 
abortion, female infanticide, and other practices that lead to 
infant or early childhood mortality among baby girls.\7\
---------------------------------------------------------------------------
    \6\Amartya Sen, More Than 100 Million Women Are Missing, The New 
York Review of Books, Vol. 37, No. 20, (December 20, 1990), available 
at http://www.nybooks.com/articles/3408 (last visited July 18, 2008).
    \7\Mara Hvistendahl, Unnatural Selection: Choosing Boys over Girls, 
and the Consequences of a World Full of Men, Public Affairs Publishing, 
p. 5-6 (2011). Hvistendahl writes that an estimated 163 million females 
were demographically ``missing'' from Asia alone, as early as 2005; 
United Nations Fact Sheet: International Women's Day 2007, available at 
http://www.un.org/events/women/iwd/2007/factsfigures.shtml.
---------------------------------------------------------------------------
    Sex-selection abortion is a form of violence against women 
and girls (the mother and the unborn child).\8\ Sex-selection 
abortion is most common in parts of the world where dowries, 
bride burnings, widow immolations, the killing of newborn girls 
by dais,\9\ forced abortions, trafficking, and other uncommonly 
savage offenses against females are most common.\10\ But it is 
also a tragedy that it occurs in the United States.
---------------------------------------------------------------------------
    \8\Sunita Puri, Department of Internal Medicine, University of 
California, San Francisco; Vincanne Adams, Department of Anthropology, 
History, and Social Medicine, University of California, San Francisco; 
Susan Ivey, Department of Community Health and Human Development, 
University of California, Berkeley; Robert D. Nachtigall, Department of 
Obstetrics, Gynecology, and Reproductive Sciences, University of 
California, San Francisco, ``There is Such a Thing as Too Many 
Daughters, but Not Too Many Sons: A Qualitative Study of Son Preference 
and Fetal Sex Selection among Indian Immigrants in the United States,'' 
Social Science & Medicine, Volume 72, Issue 7, April 2011, Pages 1169-
1176.
    \9\Carla Power, NS Special Report: But What if it's a Girl?, The 
New Statesman, April 24, 2006. A dais is a traditional midwife, 
typically in the Asian subcontinent, who delivers babies and who, not 
infrequently, is hired to kill live, newborn baby girls.
    \10\Nicholas Eberstadt, Global War Against Baby Girls, The New 
Atlantis; A Journal of Technology and Science (Fall 2011) available at 
http://www.aei.org/files/2012/01/12/-the-global-war-against-baby-
girls_094915483477.pdf
---------------------------------------------------------------------------
    In most industrialized countries, sex-selection generally 
is banned or restricted. The United States is the notable 
exception.\11\
---------------------------------------------------------------------------
    \11\Council of Europe, Parliamentary Assembly, Sex-Selective 
Abortion--Gendercide, Doc. 12258, (May 11, 2010) available at http://
assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12258.pdf (finding 
that ``gender imbalance constitutes a serious threat to global 
security,'' and calling on member states to ``condemn sex-selection 
abortion'' and to adopt legislative measures ``to restrict the use of 
prenatal diagnostics strictly to identify medical conditions'' binding 
the signatories: Italy, the U.K., Spain, Austria, Ireland, Serbia, 
Estonia, Moldova, Bulgaria, Liechtenstein, and Lithuania). (Sex 
selection techniques are banned or restricted by India, China, the 
United Kingdom, Australia, and many European countries. Indian Medical 
Termination of Pregnancy Act, 1971 (``MTPN Act''), as amended in 2002, 
and The Pre-Natal Diagnostic Techniques (Regulation and Prevention of 
Misuse) Act (1994) (``PNDT Act''), No. 57, as amended in 2002 by the 
Pre-Natal Diagnostic Techniques Act (Regulation and Prevention of 
Misuse Act), No. 14 ; Mother and Child Heath Law of the People's 
Republic of China (1994); Population and Family Planning Law of the 
People's Republic of China (2002); see also Regulation on Prohibiting 
Fetal Sex Identification and Selective Termination of Pregnancy for 
Non-medical Reasons, adopted at Fifth Session of the Ninth Standing 
Committee of Shandong Provincial People's Congress (November 21, 1998); 
The Abortion Act of 1967, c. 87, sec. 7 (United Kingdom); Australian 
National Health and Medical Research Council Act 1992, No. 225/1990; 
Sex-selection by pre-implantation genetic diagnosis is forbidden by law 
in India, South Australia, Canada, the United Kingdom, and ten other 
European countries. Canadian Assisted Human Reproduction Act, (2004), 
S.C. chapter 2, s. 5(e)). Convention for the Protection of Human Rights 
and Dignity of the Human Being with regard to the Application of 
Biology and Medicine: ch.4, art. 14, (Oviedo, 4.IV.1997)(``The use of 
techniques of medically assisted procreation shall not be allowed for 
the purpose of choosing a future child's sex, except where serious 
hereditary sex-related disease is to be avoided'') binding signatories 
that have ratified the document, including Albania, Bosnia and 
Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, 
Estonia, Finland, Georgia, Greece, Hungary, Iceland, Latvia, Lithuania, 
Montenegro, Norway, Portugal, Republic of Moldova, Romania, San Marino, 
Serbia, Slovakia, Slovenia, Spain, Switzerland, the former Yugoslav 
Republic of Macedonia, and Turkey, http://conventions.coe.int/Treaty/
EN/Treaties/Html/164.htm, list of signatories and ratification dates 
available at http://treaties.un.org/pages/
showDetails.aspx?objid=080000028008c3a6 ; Taking a Stand: Tools for 
Action on Sex-Selection, a collaborative project of the Generations 
Ahead, National Asian Pacific American Women's Forum (NAPAWF), and 
Asian Communities for Reproductive Justice, p. 4, available at http://
napawf.org/wp-content/uploads/2010/01/Toolkit-final.pdf.
---------------------------------------------------------------------------
    U.S. census data and national vital statistics show some 
Americans are employing sex-selection techniques in their 
reproductive decisions.\12\ Certain communities within the 
United States are achieving sex ratios that are unnatural and 
statistically impossible without medical intervention. These 
unnatural sex ratios strongly favor the birth of males over 
females.\13\ Reproductive rights groups maintain that immigrant 
communities bring the sex-biases of their native land with them 
when they immigrate.\14\
---------------------------------------------------------------------------
    \12\Abrevaya, supra note 4, at 2-5.
    \13\Douglas Almond and Lena Edlund, Son Biased Sex Ratios in the 
2000 United States Census, Proceedings of the National Academy of 
Sciences of the United States of America, vol. 105, no. 15 (April 
2008).
    \14\Sujatha Jesudason, Miriam Yeung & Eveline Shen, Taking a stand, 
tools for action on sex-selection, Generations Ahead, National Asian 
Pacific American Women's Forum (NAPAWF), and Asian Communities For 
Reproductive Justice (ACRJ), (Accessed May 7, 2012), Page 12, http://
napawf.org/wp-content/uploads/2010/01/Toolkit-final.pdf.
---------------------------------------------------------------------------
    The American native-born population also harbors attitudes 
favoring son preference. In one study, twenty-five percent of 
American couples claimed that they would consider utilizing a 
pre-implantation (non-abortive) sex selection technique; Males 
would fare far better than unborn females, with ``81 percent of 
men and 94 percent of women admitting that they would desire 
their first child to be a boy.''\15\
---------------------------------------------------------------------------
    \15\Jason Roberts, Customizing Conception: A Survey of 
Preimplantation Genetic Diagnosis and the Resulting Social, Ethical, 
and Legal Dilemmas, Duke L. & Tech. Rev., 0012, 26. (2002).
---------------------------------------------------------------------------
    The natural ratio of male to female births is 1.05:1.\16\ 
In April 2008, two economists from Columbia University 
demonstrated through Census 2000 data that unnatural sex ratios 
exist for births in Asian-American communities. For example, 
among Indian-American families whose first two children are 
daughters, the male to female sex ratio for third children is 
1.51:1 (compared with the natural ratio of 1.05:1). Restated, 
boys outnumber girls by 50% among third children born in 
America to Indian-American parents. This ratio is not possible 
as a natural outcome.
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    The economists concluded that the sex-ratio imbalance is 
the result of ``sex-selection, most likely at the prenatal 
stage,'' meaning most likely due to sex-selection abortion.\17\ 
Given the years examined in the 2000 U.S. Census (1990-2000), 
there is no other likely explanation. The only two alternative 
sex-selection techniques that could produce the sex imbalance--
sperm sorting and embryonic stage sex-selection (also called 
Preimplantation Genetic Diagnosis or ``PGD'')--were not widely 
available at that time.\18\ Further, the cost of non-abortive 
sex-selection techniques is prohibitive for many couples.\19\
---------------------------------------------------------------------------
    \17\Id.
    \18\Abrevaya, supra note 4, at 5.
    \19\Id.
---------------------------------------------------------------------------
    American physicians admit that sex-selection is a reality 
in the United States. Dr. Norbert Gleicher, medical director of 
the Center for Human Reproduction, a fertility and sex-
selection clinic with offices in New York and Chicago, concedes 
that Americans of Asian and Middle Eastern descent prefer 
males.\20\ A 1989 study of sex-selection in New York City, 
conducted by Dr. Masood Khatamee, clinical professor at New 
York University Medical Center, found that all the foreign-born 
couples surveyed--mostly from Asia and the Middle East--
preferred boys, predominantly for cultural and economic 
reasons. Often, the pressure to sex-select is applied by the 
husband's parents.\21\
---------------------------------------------------------------------------
    \20\Sam Roberts, U.S. Births Hint at Bias for Boys in Some Asians, 
New York Times, June 14, 2009.
    \21\Id.
---------------------------------------------------------------------------
    Some physicians are working to discourage sex-selection in 
the United States. Dr. Lisa Eng, a Hong Kong-born gynecologist 
who practices in New York's Chinatown actively discourages 
couples who prefer boys from opting for sex-selection 
abortions. But, she said, ``If it's going to be a third 
[child], they're pretty determined to have a boy. If it's a 
boy, they keep it. If it's a girl, they'll abort.'' \22\
---------------------------------------------------------------------------
    \22\Id.
---------------------------------------------------------------------------

        SEX-SELECTION MAY BE MORE PRONOUNCED IN SUB-COMMUNITIES 
                   IN THE UNITED STATES THAN IN ASIA

    Sex-selection practices do not subside in a Western 
environment where girls are valued equally; Sex-selection in 
American immigrant communities can be more pronounced than in 
those communities' countries of origin. Professor Jason 
Abrevaya, an economist at the University of Texas, surveyed 
census and birth records through 2004 to compare the sex ratio 
of males to females at birth among Chinese immigrant families. 
Abrevaya discovered that the unnatural sex-ratio favoring boys 
among immigrant Chinese parents in New York was higher than the 
national average for Chinese families living in mainland China, 
where boys typically account for about 515 boys of every 1,000 
births. Specifically, among Chinese New Yorkers having a third 
child, the number of boys was an astounding 558 boys per 1000 
births.\23\ In California, the sex ratio among ethnic Chinese 
in Santa Clara County has been as low as 784 girls per one 
thousand male births, and statewide, the ratio among Asians in 
urban counties ranges between 888 and 927 girls, per 1000 male 
births.\24\
---------------------------------------------------------------------------
    \23\Id.
    \24\G. Sharat Lin, PhD., Advanced Imaging Associates of Fremont, 
CA, Presentation before the American Institute of Ultrasound in 
Medicine (AIUM), San Diego, CA (March 2010).
---------------------------------------------------------------------------
    Experts speculate that this exacerbation of the problem is 
supported by the Western world's greater access to healthcare 
that includes sex-determination tests (ultrasound, CVS, and 
amniocentesis).\25\ This theory received support from a study 
of Indian-American women who have undergone sex-selection 
abortions in the United States; participants reported that the 
ready availability and legality of ultrasound technology in the 
U.S. increased the pressure and even ``obligation'' to use the 
technology to seek out and destroy unborn girls.\26\
---------------------------------------------------------------------------
    \25\Abrevaya, supra note 4, at 3.
    \26\Puri, supra note 8, at 1175.
---------------------------------------------------------------------------
    Professor Abrevaya's review of census and birth records 
showed that Americans have sex-selected thousands of baby 
girls.\27\
---------------------------------------------------------------------------
    \27\Abrevaya. supra note 4, at 27.
---------------------------------------------------------------------------

          NOT ALL SEX-SELECTION IS ABORTION; BUT MOST OF IT IS

    Children are being commoditized by sex-selection abortion 
practices. The desired ``product'' is nearly always a son. 
While it is true that sons could be intentionally procured by 
methods other than aborting unwanted females, abortion is 
likely to be the method of choice because it is the least 
expensive--by a large margin. With sex-selection techniques 
turning unborn children into products available in the 
marketplace, the laws of supply and demand come into play. If a 
given sex-selection technique offers a son for a fraction of 
the cost of a different sex-selection technique, one may expect 
that the demand for the product at the lower ``price'' will far 
exceed the demand for the product at the higher price.
    Sex-selection abortion is the most economical choice of the 
three methods, costing only a small fraction (between $300 and 
$3,000, depending on the trimester) of what the other two 
methods would cost (approximately $10,000 for sperm sorting\28\ 
and between $54,000 and $108,000 on average for PGD, using an 
average cost of $18,000 per implantation cycle for PGD).\29\
---------------------------------------------------------------------------
    \28\Rajani Bhatia et al., Sex Selection: New Technologies, New 
Forms of Gender Discrimination, CTR. GENETICS & SOC'Y (Oct. 2003), 
available at http://genetics-and-society.org/resources/background/
factsheet.html .
    \29\Patti Neighmond, Study: Sixth Time May Be Charm For In Vitro, 
``Day to Day'', National Public Radio, http://www.npr.org/templates/
story/story.php?storyId=99654924, January 21, 2009. (PGD must be 
followed by an in vitro fertilization procedure (each in vitro 
fertilization is known as an implantation cycle) and often multiple 
cycles must be performed before a successful implantation and 
successful live birth results. For example, one study reported a 45% to 
53% live birth rate after three implantation cycles, and a success rate 
of between 51% and 71% after six implantation cycles. A sex-selection 
using this method would only have a 50% chance of success only after 
3--6 implantation cycles, meaning that the production of the sex-
selected child could cost between $54,000.00 and $108,000.00 
($18,000.00 average cost of an implantation cycle times 3 or 6)).
---------------------------------------------------------------------------
    Furthermore, sperm sorting and PGD have a lackluster 
success rate. Sperm sorting only succeeds 70-80% of the time, 
meaning that a child of the undesired sex is inadvertently 
produced through the technique.\30\ PGD is often completely 
unsuccessful, with all implanted embryos failing to thrive 
after an $18,000 implantation cycle. The American Congress of 
Obstetricians and Gynecologists (``ACOG'') has published a 
public statement that ``[n]o current technique for pre-
fertilization sex selection [sperm sorting] has been shown to 
be reliable.''\31\ Therefore, where the ``product'' desired is 
a son, the rational choice is to conceive for free and then to 
abort females repeatedly for a small price until a son is 
``achieved,'' rather than pay potentially tens of thousands of 
dollars for a procedure that has a significant failure 
rate.\32\
---------------------------------------------------------------------------
    \30\Microsort, an American company offering sperm sorting, claims a 
success rate of 85% for couples who desire a boy. http://
www.microsort.net.
    \31\Center for Reproductive Rights, Statement of Policies and 
Principles on Discrimination Against Women and Sex-Selective Abortion 
Bans, Sep. 29, 2009, available at http://reproductiverights.org/en/
document/statement-of-policies-and-principles-on-discrimination-
against-women-and-sex-selective-abortion.
    \32\Rajani Bhatia et al., Sex Selection: New Technologies, New 
Forms of Gender Discrimination, Ctr. Genetics & Soc'y, Oct. 2003, 
available at http://genetics-and-society.org/resources/background/
factsheet.html.
---------------------------------------------------------------------------
    This calculation is currently perfectly legal; the United 
States is one of very few industrialized nations that do not 
restrict the various methods of sex-selection--despite our 
continuous condemnation of other countries that permit the 
practice.\33\ The states are little better, with only three 
states having passed sex-selection abortion prohibitions: 
Illinois, Pennsylvania, and Arizona.\34\
---------------------------------------------------------------------------
    \33\H. Res. 530, 108th Cong. (2004); H. Res. 794, 109th Cong. 
(2006). (In 2007, the United States unsuccessfully pushed a resolution 
at the United Nations to condemn sex-selection abortion worldwide.) 
Draft Agreed Conclusions on the Elimination of All forms of 
Discrimination and Violence Against the Girl Child, Commission on the 
Status of Women, 51st Session, (26 February--9 March 2007). (Further, 
the U.S. Congress has passed resolutions condemning the People's 
Republic of China for its failure to end sex-selection and violence 
against girls).
    \34\IL ST CH 720 Sec. 510/6; 18 Pa. Cons. Stat. Ann. 3204(c) 
(1994); AZ ST Sec. 13-3603.02 (2011).
---------------------------------------------------------------------------
    Sex-selection is on the rise and has given birth to a 
growing niche industry.\35\ Demographers believe there exists a 
``growing tendency for American families to embrace sex-
selection techniques, like in vitro fertilization and sperm 
sorting, or abortion.''\36\
---------------------------------------------------------------------------
    \35\Carey Goldberg, Test Reveals Gender Early in Pregnancy; 
Ethicists Fear Use in Sex Selection, Boston Globe, June 27, 2005.
    \36\Sam Roberts, U.S. Births Hint at Bias for Boys in Some Asians, 
New York Times, June 14, 2009.
---------------------------------------------------------------------------
    Sex-selection abortion is made easier (and less expensive) 
by emerging, over-the-counter products that promise to reveal 
the sex of an unborn child as early as 5 weeks after 
fertilization, meaning that a woman could have a sex-selection 
abortion in the first trimester rather than the second, 
reducing medical risks and fees. One product, the Baby Gender 
Mentor Home DNA Gender Testing Kit, sells for less than $300. 
It claims to be 99.9% accurate as early as five weeks after 
conception, but no scientific evidence is yet available to 
confirm the claim.\37\ The manufacturer of this product has 
been sued for alleged misrepresentation about its ability to 
predict the sex of the child.\38\ Tellingly, the plaintiffs may 
well be suing on the basis that they would have aborted their 
child had the product worked as advertised.\39\
---------------------------------------------------------------------------
    \37\See http://www.intelligender.com/intelligender-gender-
prediction-test.html.
    \38\Karen Kaplan, Problems Follow Early Reads on Baby's Sex, Los 
Angeles Times, March 2, 2008 (reprinted in the China Post).
    \39\Id.
---------------------------------------------------------------------------

            AMERICA AS A CAPITAL OF THE SEX-SELECTION MARKET

    America has become a center for the lucrative international 
sex-selection market that crosses state and international 
lines.
    Women cross the border from Canada to obtain sex-selection 
abortions in the United States. An editorial in the January 
2012 edition of the Canadian Medical Association Journal 
drafted by Editor-in-Chief, Dr. Rajendra Kale, argues that sex-
selection abortion is a serious problem among certain 
communities in Canada, and that physicians should refrain from 
revealing the sex of the baby until 30 weeks, the point at 
which Canada law forbids abortion.\40\ In a radio interview 
with CBC Toronto host, Matt Galloway, Aruna Papp, Canadian 
counselor with Family Services, York Region, confirms that 
women in Canada who want sex-selection abortions will go to the 
United States to get them:
---------------------------------------------------------------------------
    \40\Dr. Rajendra Kale, ``It's a Girl!''--Could be a Death Sentence, 
Canadian Medical Association Journal, NRC Research Press, January 2012, 
available at http://www.cmaj.ca/content/early/2012/01/16/cmaj.120021.

        MG: In the wake of this [Canadian Medical Association] 
        editorial being published yesterday, there has been 
        some dispute as to how common this issue [sex-selection 
---------------------------------------------------------------------------
        abortion] is in Canada.

        AP: It is very common! It is very common!

        MG: What then--.

        AP: And nobody is keeping data because the doctors 
        can't keep data. It is so easy to have that kind of 
        ultrasound here in Canada, fly down to India, have an 
        abortion. Go down to Buffalo. Go down to Michigan. Have 
        your abortion and come back.

        MG: How often is something like this happening? I mean 
        again that--I think that it strikes a lot of people or 
        it would strike a lot of people very strongly wondering 
        how this--this could exist in Canada now. That perhaps 
        there are other regions of the world where this does 
        happen. But people would say ``no, this simply is not 
        happening.''

        AP: It is happening here! We are not allowed to keep 
        data. We don't know how many are happening. I can say 
        that in 6 months so many women have come. We have 
        agency Punjabi Health Services in Peel region. It is 
        the top problem there related to mental illness. In 
        South Asian Settlement Services in Scarborough, for 
        example, the top problem there is related to mental 
        illness, depression, and attempted suicide.

        MG: If it is an issue that is prevalent but also taboo 
        because you can't keep statistics and people don't like 
        talking about it, how do you through your agency 
        actually reach out and deal with this issue on the 
        level that people are willing to talk about it?

        AP: We can't reach out because we have to wait until 
        they come to us. There is such a backlash from the 
        community and everyone denies it. But it's only the 
        service providers, the doctors, who send the clients to 
        us, who can tell you that this is going on. Women can't 
        talk about it publicly. If they do, then there is no 
        place for them to go. They can't go back to their 
        husbands and in-laws and talking about it. But also 
        because they are women who don't want to have more than 
        two or three children themselves, but the pressure 
        comes from the family.

        MG: What can you do to tell those women that girls are 
        valued in our society?

        AP: We have been working at it the last 30 years. . . . 
        Just service providers like myself talking about it, 
        makes--is not enough . . . the backlash is you're 
        perpetuating racism, you're perpetuating stereotype, 
        negative things about the community. If we own the 
        problem, then as a community we can start making the 
        changes from inside. And outside service providers are 
        doing their best . . . ''

Ms. Paap described the fear that an Indian woman feels by 
virtue of being a female and failing to bear sons in her 
culture:

        ``We had six girls [in my family] and I--. My earliest 
        memories is from when I was 5 years old, my grandmother 
        saying, you know, there are so many girls in this 
        family now and I'm going to have to drop some of you in 
        the well. So I grew up wondering which one of us was 
        going to be dropped in the well that day. So that kind 
        of fear is very common. But also in new brides. Even 
        the first and second generation girls who are born here 
        [Canada] and brought up here are under pressure to 
        produce boys. For many of them, they do not want to 
        have two--more than two or three children. And one of 
        them, especially the first one, should be a boy. And by 
        the time they come to us--by the time to the medical 
        doctors, they are suffering from depression. They are 
        suffering from many other physical ailments that are 
        related to two, three, or four abortions.''\41\
---------------------------------------------------------------------------
    \41\Id.

    While American fertility clinics tend to not overtly 
advertise sex-selection abortion services, the New York Times 
has reported that sex-selection services target the Indian-
American community through Indian-American publications with 
enticements such as ``Boy or Girl? We will tell you,'' with at 
least one of the advertisers strongly hinting at abortion.\42\
---------------------------------------------------------------------------
    \42\Rich Lowry, The Backwardness of Abortion, (citing the New York 
Times), National Review Online, August 23, 2001.
---------------------------------------------------------------------------
    The Fertility Research Foundation is another U.S. based 
organization that offers embryo sex-selection.\43\ Until 2001, 
this company advertised its ``family balancing'' program in 
India Abroad Newspaper--a newspaper targeted towards Indian-
Americans in the U.S. India Abroad stopped accepting sex-
selection clinic ads in 2001 because its new owners, India 
Ltd., ``felt a little queasy . . . ''and didn't ``want to be 
remotely associated with anybody that discriminates for a boy 
child over a girl child. It's wrong to discriminate.''\44\
---------------------------------------------------------------------------
    \43\Fertility Institute promotional video, available at http://
frfbaby.com/default.aspx and http://www.fertility-docs.com/
fertility_gender.phtml.)
    \44\Susan Sachs, Clinics Pitch to Indian Emigres: It's a Boy, The 
New York Times, Aug. 15, 2001, available at http://
www.geneticsandsociety.org/article.php?id=118.
---------------------------------------------------------------------------
    Dr. Jeffery Steinberg owns the abovementioned New York-
based Fertility Institute, which touts itself as ``A Leading 
World Center for 100% PGD Gender Selection.''\45\ Dr. Steinberg 
told the London Times that nearly half the people who go to his 
clinic for pre-implantation genetic diagnosis (PGD, or sex-
selection at the embryonic stage) sex-selection are from the 
U.K., where sex-selection through PGD is now banned.\46\
---------------------------------------------------------------------------
    \45\The Fertility Institute, available at www.fertility-docs.com/
fertility_gender.phtml. The Fertility Institute states that they can 
``virtually guarantee'' that one's child will be the sex of one's 
choice.
    \46\Steven Ertelt, New Abortion Center in New York Targets Brits 
Who Want Sex-Selection Abortions, (Aug. 24, 2009), http://
archive.lifenews.com/state4370.html.
---------------------------------------------------------------------------
    The American near-monopoly on legal sex-selection has 
presented Steinberg with a financial windfall, and he states 
``Britain is far more conservative than it used to be. They 
were the innovators but now they've got handcuffs on . . . 
[f]rom a business standpoint, it's the best thing going [for 
American physicians]. From a medical standpoint, it's a 
travesty.''\47\
---------------------------------------------------------------------------
    \47\Id.
---------------------------------------------------------------------------
    The Fertility Institute has offices in Los Angeles, New 
York, and Mexico, complete with an international travel desk 
that assists individuals across the globe to reach their 
facilities.\48\ Dr. Steinberg states that ``Gender selection is 
a commodity for purchase . . . if you don't like it, don't buy 
it.''\49\
---------------------------------------------------------------------------
    \48\See http://www.fertility-docs.com/.
    \49\Mimi Rohr/Gamma, Fertility Institutes: The Clinic That Helps 
Couples To Choose The Sex of Their Babies, (2006) available at 
www.editorial.fnphoto.com/stories/Texts/2332-text.html. Success rates 
for in-vitro fertilization ranges from 65%-80% and the center 
advertises a 99% chance of getting the gender desired for successful 
implantations. Fertility Institutes charges from $18,000 to $19,000 for 
each gender selection in-vitro fertilization procedure attempt. Fifty 
percent of Steinberg's patients come from countries other than the US.
---------------------------------------------------------------------------
    Dr. Steinberg says that his clinics get requests from 
``every nation on earth'' and are ``able to accommodate them.'' 
``For the first time in the history of mankind,'' he claims to 
be able to guarantee the sex of your child. Additionally, 
Steinberg's clinics advertise as a ``haven'' for gay couples 
looking to design a family. This and other advertisements, 
operating under the permissiveness of U.S. law, demonstrate 
that the U.S. is poised to become the world capital of sex-
selection. While the advertisers are typically not so bold as 
to offer sex-selection abortion explicitly, the trend lines are 
clear. As William Saletan asks in Slate Magazine, if it's fine 
to advertise for sex-selection PGD, why not sex-selection 
abortion?\50\
---------------------------------------------------------------------------
    \50\William Saletan, Sex-Selection: Nobody's Business? Slate, (June 
15, 2009).
---------------------------------------------------------------------------
    While the existence and success of Dr. Steinberg's clinics 
support H.R. 3541's findings that sex-selection is on the rise 
and international in scope, this type of service remains a 
luxury in that the advertised services are pre-implantation, 
and therefore, very expensive. The great majority of the market 
opts for the ultrasound and a grisly late-term abortion (after 
the first trimester).\51\
---------------------------------------------------------------------------
    \51\Abrevaya, supra, note 4 at 5.
---------------------------------------------------------------------------

          THE BRUTALITY OF THE TYPICAL SEX-SELECTION ABORTION

    The typical sex-selection abortion is late-term and often 
violent. This is because the ultrasound is the most common 
technology used to determine sex, and it is typically employed 
between the 16th and the 22nd week, post-fertilization.\52\ The 
pregnancy has reached the second trimester, and is approaching 
the third trimester. Abortions at this stage are complicated, 
high risk and violent, because the RU-486 pill and dilation and 
suction are not sufficient to end the life of the unborn 
child.\53\ Late term abortions may be saline abortions (the 
unborn child is slowly suffocated and burned with the injection 
of a saline solution into the uterus), lethal injection by 
chest puncture and delivery abortions, or dismemberment 
abortions.\54\ Prior to the passage of the partial-birth 
abortion ban, sex-selections may have taken this form as 
well.\55\
---------------------------------------------------------------------------
    \52\Id.; My Health News Daily, MSNBC, (Jan. 16, 2012) available at 
http://vitals.msnbc.msn.com/_news/2012/01/16/10168064-keep-babys-sex-
secret-to-prevent-gender-based-abortions-doc-says.
    \53\See http://www.americanpregnancy.org/unplannedpregnancy/
abortionprocedures.html.
    \54\Id.
    \55\18 U.S.C. Sec. 1531 (2003). The Partial Birth Abortion ban 
became law in 2003, after the conclusion of the various studies that 
show the occurrence of sex-selection in the United States.
---------------------------------------------------------------------------
    Medical evidence proves that unborn children can feel pain 
at 20 weeks gestation, if not substantially earlier.\56\ In 
most states there is no legal requirement that a physician 
inform a patient that the unborn can feel pain, nor a legal 
requirement that a patient pay the added expense of anesthesia 
for the unborn child (although a few states are considering 
laws to do so).\57\ Therefore, the government's failure to 
prohibit sex-selection abortions will likely lead to elective, 
completely unnecessary, painful abortions of healthy baby 
girls, for no reason other than that they are female.
---------------------------------------------------------------------------
    \56\See also www.doctorsonfetalpain.org.
    \57\Id.
---------------------------------------------------------------------------

    MEDICAL ASSOCIATIONS OPPOSE SEX-SELECTION, EXCEPT WHEN USED TO 
                     ELIMINATE SEX-LINKED DISEASES

    Medical associations worldwide oppose sex-selection 
abortion, except in cases involving sex-linked diseases.\58\ 
The reason for opposing sex-selection is uniform: the desire to 
combat discrimination.\59\ Abortion to eliminate sex-linked 
diseases does not implicate sex discrimination, therefore 
medical associations find that sex-selection for this reason is 
``therapeutic'' and permissible. The Programme of Action 
adopted by the United Nations International Conference on 
Population and Development urges all nations ``to take 
necessary measures to prevent . . . prenatal sex-selection'' 
except for elimination of sex-linked diseases.\60\ Likewise, 
the International Federation of Gynecology and Obstetrics 
rejects sex-selection for ``non-medical'' purposes.\61\ Even 
Paula Franklin, the Medical Director of Marie Stopes 
International, perhaps the world's largest abortion franchise, 
states that sex-selection abortions are ``not medically 
appropriate.''\62\
---------------------------------------------------------------------------
    \58\American College of Obstetricians and Gynecologists, Committee 
on Ethics. Committee Opinion: Sex-Selection. No. 360, Feb. 200, 
available at http://www.acog.org/from_home/publications/ethics/
co360.pdf.
    \59\Id.
    \60\United Nations, Gender Equality, Equity, and Empowerment of 
Women. Population and Development: Programme of Action adopted at the 
International Conference on Population and Development, New York, p. 
17-21 (September 5-13, 1994).
    \61\Ethical Guidelines on Sex-Selection for Non-Medical Purposes, 
FIGO Committee for the Ethical Aspects of Human Reproduction and 
Women's Health. Intl. J. Gynaecol. Obstet. 92: 329-30 (2006). An 
abortion to eliminate an unborn child with a sex-linked disease is 
sometimes referred to as an abortion for ``medical purposes'' or 
``therapeutic purposes.''
    \62\London Daily Telegraph, Abortion law is clear, Interview with 
Marie Stops Medical Director Paula Franklin, February 23, 2012, 
available at http://www.telegraph.co.uk/health/healthnews/9101549/
Marie-Stopes-medical-director-abortion-law-is-clear.html.
---------------------------------------------------------------------------
    American medical associations are mostly in conformity with 
the opinions of the world bodies. The American College of 
Obstetrics and Gynecology (ACOG) opposes sex-selection 
abortion, and other forms of sex-selection, except to eliminate 
sex-linked diseases.\63\ Specifically, ACOG posited ``. . . 
[T]he committee opposes meeting requests for sex selection for 
personal and family reasons, including family balancing, 
because of the concern that such requests may ultimately 
support sexist practices.''\64\ The American Society of 
Reproductive Medicine opposes sex-selection of embryos for any 
reason unrelated to sex-linked diseases, on the basis that sex-
selection reinforces discriminatory prejudices.\65\
---------------------------------------------------------------------------
    \63\American College of Obstetricians and Gynecologists, Committee 
on Ethics, supra, note 58.
    \64\Id.
    \65\Id.
---------------------------------------------------------------------------

        THE UNITED STATES GOVERNMENT'S STATED POSITION AGAINST 
                         SEX-SELECTION ABORTION

    In 2007, the U.S. delegation to the United Nations 
Commission on the Status of Women advocated for a resolution 
condemning sex-selection abortion worldwide.\66\ The U.S. House 
of Representatives has passed resolutions condemning the 
People's Republic of China for its failure to end sex-selection 
abortion and gendercide.\67\
---------------------------------------------------------------------------
    \66\H. Res. 530, 108th Cong. (2004); H. Res. 794, 109th Cong. 
(2006). (In 2007, the United States unsuccessfully pushed a resolution 
at the United Nations to condemn sex-selection abortion worldwide.) 
Draft Agreed Conclusions on the Elimination of All forms of 
Discrimination and Violence Against the Girl Child, Commission on the 
Status of Women, 51st Session, (26 February--9 March 2007).
    \67\H. Res. 530, 108th Cong. (2004); H. Res. 794, 109th Cong. 
(2006).
---------------------------------------------------------------------------

                             ENFORCEABILITY

    A common criticism of sex-selection bans is the difficulty 
of enforcement. The motive for obtaining an abortion is a key 
element of the crime, and opponents argue that the motive will 
often be impossible to ascertain. H.R. 3541 does not add a 
requirement that health care providers inquire as to the 
reasons a woman seeks abortion.
    H.R. 3541 is a civil rights law, specifically amending the 
Civil Rights section of the U.S. criminal code.\68\ While 
enforcement presents challenges due to proof issues, this is 
true of all civil rights laws where the motive for adverse 
action is a key element of the offense. Even so, the United 
States has successfully prosecuted violations of civil rights 
laws, and H.R. 3541 can be adequately enforced as well.
---------------------------------------------------------------------------
    \68\18 U.S.C.A. Sec. 13.
---------------------------------------------------------------------------

   THE UNITED KINGDOM'S ENFORCEMENT OF ITS SEX-SELECTION ABORTION BAN

    Sex-selection abortion is banned in the U.K.\69\ As in the 
United States, healthcare professionals in the U.K. encounter 
sex-selection mostly as a cultural practice among persons 
tracing their lineage to countries where sex-selection abortion 
is common. In both England and Wales, there is evidence that 
parents choose to abort females more often than males.\70\ The 
London Daily Telegraph reports that sex-selection abortion is 
believed to be ``fairly widespread'' in the U.K.\71\
---------------------------------------------------------------------------
    \69\The Abortion Act of 1967, c. 87, Sec. 7 (U.K.).
    \70\Claire Newell and Holly Watt, London Daily Telegraph, Abortion 
Investigation: Doctors Filmed Agreeing to Abortions, No Questions 
Asked, February 22, 2012, available at http://www.telegraph.co.uk/
health/healthnews/9099511/Abortion-investigation-doctors-filmed-
agreeing-illegal-abortions-no-questions-asked.html.
    \71\Allison Pearson, In the Third World, Unwanted Baby Girls 
Disappear. It's Called Gendercide. And it is Happening Here Too, London 
Daily Telegraph, February 24, 2012 available at http://
www.telegraph.co.uk/health/healthnews/9103831/In-the-third-world-
unwanted-baby-girls-disappear.-Its-called-gendercide.-And-its-
happening-in-this-country-too.html.
---------------------------------------------------------------------------
    In February 2012, the London Daily Telegraph reported that 
it conducted a sting operation against multiple abortion 
providers to see if medical professionals would violate the law 
by agreeing to perform or facilitate sex-selection abortions. 
Acting on specific information that doctors were performing 
sex-selection abortions in violation of British law, undercover 
reporters accompanied pregnant women to nine clinics where the 
women requested a sex-selection abortion. Three of the nine 
clinicians agreed to schedule the illegal abortions, with one 
of the clinicians, Dr. Raj Monan, acknowledging on tape that a 
sex-selection abortion is comparable to ``female 
infanticide.''\72\ A second offender, Ms. Prabha Sivaraman, 
said, ``I don't ask questions'' about the reason for the 
abortion, although she had already been told, and she urged her 
physician colleague to cover the crime through the private 
health care system rather than the state system because 
``you're part of our team and she doesn't want questions 
asked.'' Some health care professionals offered to falsify 
paperwork to arrange the abortions.\73\
---------------------------------------------------------------------------
    \72\Holly Watt, Claire Newell, and Robert Winnett, London Daily 
Telegraph, Scotland Yard Launches Investigation into Doctors who Agreed 
to Illegal Abortions of Baby Girls, February 12, 2012, available at 
http://www.telegraph.co.uk/health/healthnews/9103839/Scotland-Yard-
launches-investigation-into-doctors-who-agreed-to-illegal-abortions-of-
baby-girls.html.
    \73\Newell, supra, note 68.
---------------------------------------------------------------------------
    Arguably just as important as the three clinics that agreed 
to break the law, there were six clinics that refused to act 
criminally, telling the women that they were unable to provide 
a sex-selection abortion. If the U.K. did not have a sex-
selection abortion ban, presumably these clinics would have 
provided the abortions. Therefore, this investigation 
demonstrates that sex-selection abortion bans can prevent sex-
selection abortions. Also, the investigation shows that laws in 
fact are followed by a majority of persons, and therefore are 
effective in deterring the undesired, illegal behavior.
    On learning of the illegal activity, Scotland Yard launched 
an investigation.\74\ U.K. Health Secretary Andrew Lansley 
convened an emergency meeting of top officials who reported the 
offenders to the police and to the General Medical Council. 
Secretary Lansley described sex-selection abortion as ``morally 
repugnant'' and vowed to bring the ``full force of the law,'' 
including imprisonment, to bear on doctors who violate the law. 
Dr. Tony Falconer, President of the Royal College of Obstetrics 
and Gynaecology raised the specter that women in the U.K. may 
be experiencing coercion, including violence, to force sex-
selection abortions, and that the ``priority should be to 
identify these women and provide them with support.''\75\ 
Cynthia Bower, the head of Britain's Care Quality Commission 
(the National Health Service oversight entity) quickly resigned 
her job. The Chief Medical Officer dispatched written 
instructions to all British abortion clinics reminding them of 
their ``responsibilities.'' The Department of Health called for 
an immediate investigation.
---------------------------------------------------------------------------
    \74\Watt, supra, note 70.
    \75\Id.
---------------------------------------------------------------------------
    Gillian Lockwood, the former vice chair of the Royal 
College of Obstetricians and Gyneacologists Ethics Committee 
told BBC Radio that, ``Every clinician working in the field in 
the U.K. is very well aware that a foetus being the wrong 
gender is not grounds for termination under any 
circumstances.'' She added that new blood tests that can 
determine the sex of the baby at much earlier stages of 
pregnancy (first trimester) ``may fuel the desire for designer 
babies.''\76\
---------------------------------------------------------------------------
    \76\Newell, supra, note 68.
---------------------------------------------------------------------------

                         THE COUNCIL OF EUROPE

    Last year, the Council of Europe recommended that member 
states, including Britain, stop telling parents the gender of 
their baby because of concerns that this information was 
encouraging sex-selection abortion.\77\ The motion, entitled 
``Sex-Selective Abortion--Gendercide'' (Doc. 12258) calls for 
the member states of the Council of Europe to ``condemn sex-
selective abortion, wherever and whenever it occurs'' and warns 
that ``the widespread availability of prenatal sex-
determination technology [is] lead[ing] to a new global trend: 
sex-selective abortion, . . . Among the countries most strongly 
affected by this new trend are China, India, South Korea, 
Taiwan, but also some European countries.''\78\ Not 
coincidentally, some Americans tracing their lineage to these 
countries are some of the same sub-communities that manifest 
unnatural sex-ratios in the United States.\79\
---------------------------------------------------------------------------
    \77\Council of Europe, Parliamentary Assembly, Sex-Selective 
Abortion--Gendercide, Doc. 12258, May 11 2010, available at http://
assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12258.pdf.(This motion 
binds the signatories, including Italy, the U.K., Spain, Austria, 
Ireland, Serbia, Estonia, Moldova, Bulgaria, Liechtenstein, and 
Lithuania.)
    \78\Id.
    \79\Almond and Edlund, supra note 13.
---------------------------------------------------------------------------
    Considering possible consequences of this ``gendercide,'' 
the document affirms that this ``gender imbalance constitutes a 
serious threat for global security.''\80\ The selective pre-
natal killing of females will in the near future lead to a 
further radical decline of birth rates, which could 
``dangerously undermine the sustainability of entire national 
economies.''\81\
---------------------------------------------------------------------------
    \80\Council of Europe, Doc. 12258, supra, note 77.
    \81\Id.
---------------------------------------------------------------------------
    The motion urges that the use of pre-natal diagnostics 
should be strictly limited ``to identify[ing] medical 
conditions that can be treated during pregnancy'' and not for 
sex-selective abortions. Many European hospitals have stopped 
giving parents information about the sex of an unborn 
child.\82\ Unfortunately, blood tests that purport to disclose 
the sex of the baby are widely available on the Internet.\83\
---------------------------------------------------------------------------
    \82\Id.
    \83\Id.
---------------------------------------------------------------------------

                           THE UNITED NATIONS

    Also recognizing this emerging trend, five United Nations 
agencies have together issued in June 2011 an interagency 
statement on ``Preventing Gender-Biased Sex-Selection.'' The 
statement, based on an extensive report, requests ``renewed and 
concerted efforts . . . to address the deeply rooted gender 
discrimination against women and girls which lies at the heart 
of sex selection.''\84\
---------------------------------------------------------------------------
    \84\World Health Organization, Preventing Gender-Biased Sex 
Selection, an interagency statement of the Office of the High 
Commissioner of Human Rights, United Nations Population Fund (UNFPA), 
United Nations Children's Fund (UNICEF), United Nations Entity for 
Gender Equality and the Empowerment of Women (UN Women), and World 
Health Organization (WHO), 2011, available at http://whqlibdoc.who.int/
publications/2011/9789241501460_eng.pdf.
---------------------------------------------------------------------------

                                COERCION

    H.R. 3541 forbids coercing women to obtain abortions 
prohibited under the Act because sex-selection abortions are 
oftentimes coerced.\85\ Coercion is the opposite of 
``choice.''\86\ Evidence shows that women around the world--
including inside the United States--can be subject to severe 
physical abuse and coercion to force a sex-selection 
abortion.\87\
---------------------------------------------------------------------------
    \85\H.R. 3541, 112th Cong., 1st session, Sec.  250(a)(2).
    \86\Roe v. Wade, 410 U.S. 113 (1973).
    \87\Puri, supra at 1170.
---------------------------------------------------------------------------
    A 2011 study, by the University of California, San 
Francisco, interviewed Indian-American immigrant women in 
California, New York, and New Jersey who had sought sex-
selection abortions in the United States between 2004 and 
2009.\88\ The purpose of the study was to understand how women 
who are pressured to bear sons react in a country where 
reproductive choice is allowed and sex-selection technologies 
are openly marketed and available. Researchers chose two U.S. 
based clinics offering elective ultrasound in large South Asian 
immigrant communities as research sites, with the consent of 
the clinic directors.\89\
---------------------------------------------------------------------------
    \88\Id.
    \89\Id.
---------------------------------------------------------------------------
    Because the researchers had reason to fear for the 
participants' exposure to marital violence, all subjects were 
offered information on local South Asian women's organizations 
offering assistance for victims of family violence.\90\ 
Measures to prevent domestic violence in the context of 
abortion are not standard in the U.S., but for women from 
countries with strong son preference, failure to bear a son is 
a serious matter; the birth of a child of the wrong sex could 
result in a brutal death for the mother at the hands of the 
father and mother-in-law.\91\ For example, photojournalist 
Walter Astrada's 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.\92\
---------------------------------------------------------------------------
    \90\Id.
    \91\Bilal Sarawy, BBC News, Afghan Woman is Killed for Giving Birth 
to a Girl, (January 30, 2012)(A 22 year old Afghan woman had her feet 
bound by her mother-in-law while her husband strangled her for giving 
birth to the couple's third daughter.) available at http://
www.bbc.co.uk/news/world-asia-16787534; Times of India, TNN (AP), 
Pregnant Woman Burnt to Death, (August 15, 2005)(Nita Koli was set on 
fire by her husband and mother-in-law for repeatedly bearing daughters 
instead of sons.) available at http://
articles.timesofindia.indiatimes.com/2005-08-19/india/
27862684_1_pregnant-woman-morbi-police-female-foetus.
    \92\Walter Estrada, Alexia Foundation, PhotoBlog, MSNBC.com, Oct. 
10 2010, available at http://photoblog.msnbc.msn.com/_news/2010/10/01/
5214051-undesired-in-india-boys-are-prized-over-girls-with-violent-
results.
---------------------------------------------------------------------------
    Nearly half of the participants had already had a sex-
selection abortion, with some having as many as four sex-
selection abortions.\93\ The women sought varying forms of sex-
selection, with 6% using PGD, 15% using sperm sorting, and 78% 
using ultrasound and sex-selective abortion.\94\ The cost of 
sperm sorting and PGD is prohibitive for most couples.\95\ 
Also, husbands of the women believed that sperm sorting and PGD 
are less desirable options for sex-selection because they are 
``unnatural,'' whereas conception followed by abortion was 
``natural.'' The participants expressed frustration with 
American gynecological practice which typically only reveals 
the sex of an unborn child at approximately 20 weeks after 
fertilization. Instead, they preferred ``private clinics'' 
where clinic staffers will reveal the sex with ultrasound at 
just 12 weeks gestation.\96\
---------------------------------------------------------------------------
    \93\Puri, supra note 8, at 1171.
    \94\Id.
    \95\Id. at 1172.
    \96\Id.
---------------------------------------------------------------------------
    Women who carried a female unborn child to term said they 
were subject to varying degrees of verbal and physical abuse. 
Women identified female in-laws and husbands as sources of 
significant pressure to have male children. This was true even 
if the in-laws lived in India.\97\ Participants told of 
mothers-in-law who tell them they are useless, or who threaten 
to throw them out of the family if the daughter-in-law cannot 
bear a son. One mother-in-law even threatened to commit suicide 
if the daughter-in-law did not bear a son- instigating the 
wrath of the entire family against the daughter-in-law.\98\
---------------------------------------------------------------------------
    \97\Id.
    \98\Id.
---------------------------------------------------------------------------
    Husbands threatened divorce or abandonment, both serious 
consequences for an uneducated woman with no family in the 
United States.\99\ Gender inequality between husband and wife 
manifests itself strongly in the immigrant context, because the 
wife's poorly developed support system can make her more 
vulnerable to reproductive coercion and physical abuse.\100\ 
Also, immigrant women felt that having a son is even more 
important in the new country than in the old, since men are 
thought to be better equipped to navigate the complexities of 
immigrant life. Immigrant women are at greater risk for 
domestic abuse and violence because of linguistic barriers and 
a lack of familiarity with American social services.\101\
---------------------------------------------------------------------------
    \99\Id.
    \100\Id. at 1174.
    \101\Id.
---------------------------------------------------------------------------
    When explaining why they sought sex-selection, the women 
often described the suffering of female relatives who had no 
sons, including social stigma and a lack of economic support, 
respect, and stability. Also, many of them thought that life is 
too hard for women in general, desiring to prevent a daughter 
from suffering the way that they themselves have suffered. 
Finally, most were concerned that a daughter would have 
premarital sex if raised in the United States, and that this 
would bring dishonor to the family. These concerns were 
consistent across all socioeconomic levels, even among the 23% 
that held advanced degrees in medicine, law, nursing and 
scientific research.\102\
---------------------------------------------------------------------------
    \102\Id.
---------------------------------------------------------------------------
    Women who refuse sex-selection abortions are sometimes 
physically abused. A woman may be denied food, water, and rest 
to induce an abortion where it is determined that the woman is 
carrying a female unborn child.\103\ Some women described being 
hit, pushed, choked and kicked in the abdomen in a husband's 
attempt to forcibly terminate a female unborn child.\104\ 
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.\105\ Likewise, in the wake of an expose on sex-
selection abortion in the U.K., 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, and that the ``priority should 
be to identify these women and provide them with 
support.''\106\
---------------------------------------------------------------------------
    \103\Id. at 1173.
    \104\Id.
    \105\Jeani Chang, MPH, Cynthia Berg, MD, MPH, Linda Saltzman, PhD, 
Joy Herndon, MS, Homicide: A Leading Cause of Injury Deaths Among 
Pregnant and Postpartum Women in the United States: 1991-1999, Am. J. 
Public Health, March 2005, at 471-477.
    \106\Watt, supra, note 70.
---------------------------------------------------------------------------
    A growing body of research documents the relationship 
between intimate partner violence and reproductive coercion, 
sometimes resulting in forced sex and denial of healthcare 
services if pregnant.\107\ Sunita Puri, M.D., M.S., a medical 
resident at the UCSF Department of Internal Medicine has noted 
that, ``health care providers are often well positioned to 
intervene or suggest options, but may be hesitant to approach 
issues perceived as 'cultural.''\108\ Puri's study concluded 
that pregnancy, abortion, and the use of reproductive 
technologies may be a product of an abusive environment created 
by marital partners, an extended family, or both.\109\ Further, 
participants recognized that the ready availability and 
legality of ultrasound technology in the U.S. increased the 
pressure and even obligation to use it.\110\
---------------------------------------------------------------------------
    \107\See Miller, Jordan, Levenson & Silverman, 2010, Reproductive 
Coercion; Connecting the Dots between Partner Violence and Unintended 
Pregnancy, Contraception, 81,457-59; Thiel de Bocanegra, Rostovtseva D. 
P., Khera S. & Godhwani, N. 2010. Birth Control Sabotage and Forced 
Sex: Experiences Reported by Women in Domestic Violence Shelters, 
Violence Against Women, 14, 1382-1396.
    \108\Puri, supra note 8, at 1174.
    \109\Id.; See also Moore, Frohwirth, & Miller, 2010. Male 
Reproductive Control of Women who have Experienced Intimate Partner 
Violence in the United States, Social Science and Medicine, 70, 1737-
1744.
    \110\Puri, supra note 8, at 1175.
---------------------------------------------------------------------------
    One-third of the women in the study reported a history of 
family violence exacerbated when they did not give birth to a 
son.\111\ That they are at increased risk for psychological and 
physical morbidity is documented by their descriptions of 
depression, anxiety, chronic pain, physical abuse, closely 
spaced pregnancies, and ``forced abortions.'' 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 woman. \112\
---------------------------------------------------------------------------
    \111\Id. at 1174.
    \112\Id.
---------------------------------------------------------------------------
    The study found that 40% 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% underwent an abortion. Of 
those that did not abort their unborn daughters, 100% expressed 
ambivalence about prior sex-selection abortions.\113\ Further, 
100% cited physical and psychological trauma from the past 
abortions as reasons for not seeking another.\114\ Most 
tragically, 100% expressed guilt, shame and sadness over their 
inability to ``save'' the daughters they had aborted.\115\
---------------------------------------------------------------------------
    \113\Puri, supra note 8, at 1173.
    \114\Id.
    \115\Id.
---------------------------------------------------------------------------

                        RACE-SELECTION ABORTION

    ``Race-selection abortion'' is defined in the findings of 
H.R. 3541 as, ``an abortion performed for purposes of 
eliminating an unborn child because the child or a parent of 
that child is of an undesired race.''\116\ A thorough review of 
the American family planning movement and its close affiliation 
with the American Eugenic Society reveals a history of 
targeting African-Americans and other minorities for 
``population control.''\117\ This history arguably contributes 
to the current statistic that a black baby is five times as 
likely to be aborted as a white baby, and often in a federally 
subsidized clinic.\118\
---------------------------------------------------------------------------
    \116\H.R. 3541, 112th Cong., 1st session, Sec.  250(a)(2)(C).
    \117\Edwin Black, War Against the Weak: Eugenics and America's 
Campaign to Create the Master Race, Ch. 5 ``Legitimizing Raceology.'' 
p. 63-85 (New York 2004).
    \118\Susan A. Cohen, Abortion and Women of Color: The Bigger 
Picture, Guttmacher Policy Review, Guttmacher Institute (vol. 11, no. 
3, Summer 2008).
---------------------------------------------------------------------------
    Abortion is the leading cause of death in the black 
community.\119\ With approximately 450,000 black abortions per 
year, more black Americans are lost to abortion annually than 
are lost to cancer, heart disease, diabetes, AIDS, and violence 
combined.\120\ These statistics are supported 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 number of deaths by cause and 
race.\121\ The numbers for each of these variables have 
remained relatively constant.\122\
---------------------------------------------------------------------------
    \119\Id.
    \120\National Vital Statistics Reports, Vol. 58, No. 19, May 20, 
2010. Table 1. Number of Deaths, Death Rates, and Age Adjusted Death 
Rates by Race and Sex: United States, 1940, 1950, 1960, 1970, and 1980-
2007.
    \121\www.guttmacher.org; http://www.cdc.gov/nchs/nvss.htm.
    \122\Id.
---------------------------------------------------------------------------
    That American elites may have had ``group targeting'' in 
mind for family planning programs was indicated by Supreme 
Court Justice Ruth Bader Ginsburg in a 2009 interview with the 
New York Times:

          Ginsburg: ``Reproductive choice has to be 
        straightened out . . . ''
          Emily Bazelon (NYT): ``Are you talking about . . . 
        the lack of Medicaid for abortions for poor women?''
          Ginsburg: ``Yes, the ruling about that surprised me. 
        [Harris v. McRae--in 1980 the court upheld the Hyde 
        Amendment, which forbids the use of Medicaid for 
        abortions.] Frankly, I had thought that at the time Roe 
        was decided, there was concern about population growth 
        and particularly growth in populations that we don't 
        want to have too many of. So that Roe was going to then 
        be set up for Medicaid funding for abortion. Which some 
        people felt would risk coercing women into having 
        abortions when they really didn't want them. But when 
        the court decided McRae, the case came out the other 
        way. And then I realized that my perception of it had 
        been wrong altogether.''\123\
---------------------------------------------------------------------------
    \123\Emily Bazelon, The Place of Women on the Court, New York Times 
Magazine http://www.nytimes.com/2009/07/12/magazine/12ginsburg-
t.html?_r=2 (July 7, 2009); Melinda Hennenberger, Why Emily Bazelon 
Didn't Follow Up on Justice Ginsburg's Abortion Comment, Politics 
Daily, http://www.politicsdaily.com/2009/07/17/why-emily-bazelon-didnt-
follow-up-on-ginsburgs-offensive-abort/(July 17, 2009).

    Justice Ginsburg never defined the ``we'' who did not want 
``too many'' of certain ``populations,'' her comments suggest 
she was including herself in the group. Ruth Bader Ginsburg was 
a leader in the women's movement during the 1960's and 1970's, 
serving as the founder and counsel of the ACLU's Women's Rights 
Project from 1972-1980, the time during which Roe v. Wade 
became law.\124\
---------------------------------------------------------------------------
    \124\Roe v. Wade, 410 U.S. 113 (1973); Cornell University Law 
School Legal Information Institute available at http://
www.law.cornell.edu/supct/justices/ginsburg.bio.html.
---------------------------------------------------------------------------

 MARGARET SANGER'S EUGENIC LEGACY CONTINUES THROUGH TODAY'S FEDERALLY 
                       FUNDED PLANNED PARENTHOOD

    The trailblazer of the American family planning movement 
was Margaret Sanger. Margaret Sanger was a eugenicist whose 
ideology permeated the family planning movement of the 20th 
century. Many eugenicists strongly espoused racial supremacy 
and ``purity,'' particularly of the ``Aryan'' race. They hoped 
to purify the bloodlines and improve the human race by 
encouraging the ``fit'' to reproduce and encouraging the 
``unfit'' to restrict their reproduction. Their tactics to 
contain the ``inferior'' races included segregation, 
sterilization, laws restricting interracial marriage, birth 
control, and even extermination.\125\
---------------------------------------------------------------------------
    \125\Black, supra, note 119, at 19, 127. Black does not list 
abortion as a eugenic tactic; Abortion was largely illegal during the 
era of American eugenics.
---------------------------------------------------------------------------
    The fruit of Sanger's labor was the American Birth Control 
League (ABCL), later known as the Birth Control Federation of 
America (BCFA), later renamed ``Planned Parenthood Federation 
of America.''\126\
---------------------------------------------------------------------------
    \126\Robert G. Marshall and Charles A. Donovan, Blessed are the 
Barren: The Social Policy of Planned Parenthood p. 24-25 (San 
Francisco: Ignatius Press, 1991). (The BCFA members voted unanimously 
at a special January 29, 1942, meeting to change the organization's 
name to the Planned Parenthood Federation of America. By then, BCFA had 
34 state league affiliates. The state leagues followed suit in changing 
their name and bylaws. Particularly, the New York State Federation for 
Planned Parenthood's old bylaws stipulated that the object was: ``To 
develop and organize on sound eugenic, social and medical principles, 
interest in and knowledge of birth control throughout the State of New 
York as permitted by law [emphasis added].'' The new bylaws replaced 
the words ``birth control'' with ``planned parenthood.'' ``Eugenics'' 
was dropped in 1943 because of its unpopular association with the 
German government's race-improving eugenics theories which culminated 
in the Holocaust).
---------------------------------------------------------------------------
    Sanger built the work of the ABCL, and, ultimately, Planned 
Parenthood, on the ideas and resources of the eugenics 
movement. Virtually all of the organization's board members 
were eugenicists.\127\ Eugenicists financed the early projects, 
from the opening of birth control clinics to the publishing of 
literature that addressed population control. Eugenicists 
comprised the speakers at conferences, authors of literature 
and the providers of family planning services. The 
International Planned Parenthood Federation was originally 
housed in the offices of the American Eugenics Society. The two 
organizations remained intertwined for years.\128\
---------------------------------------------------------------------------
    \127\Angela Franks, Margaret Sanger's Eugenic Legacy: The Control 
of Female Fertility 10-12. (Jefferson, N.C.: McFarland, 2005).
    \128\Id. at 104-107.
---------------------------------------------------------------------------
    Sanger's early writings express her desire to rid society 
of ``human waste'':

        It [charity] encourages the healthier and more normal 
        sections of the world to shoulder the burden of 
        unthinking and indiscriminate fecundity of others; 
        which brings with it, as I think the reader must agree, 
        a dead weight of human waste. Instead of decreasing and 
        aiming to eliminate the stocks that are most 
        detrimental to the future of the race and the world, it 
        tends to render them to a menacing degree 
        dominant.\129\
---------------------------------------------------------------------------
    \129\Margaret Sanger, The Pivot of Civilization, at 108 (New York: 
Brentano's, 1922) (emphasis added).

    The Sanger legacy manifests itself today in the practices 
of Planned Parenthood and other abortion providers. Planned 
Parenthood has not run from Sanger's eugenic legacy. In fact, 
several of the Planned Parenthood facilities, such as in New 
York City and Tucson, are named the ``Margaret Sanger Center.'' 
Also, each year, Planned Parenthood bestows the ``Margaret 
Sanger Award.'' The official Planned Parenthood web site 
describes this award: ``Our highest honor, the Planned 
Parenthood Federation of America Margaret Sanger Award, is 
presented annually to recognize leadership, excellence, and 
outstanding contributions to the reproductive health and rights 
movement.'' Past recipients include former Supreme Court 
Justice Harry Blackmun, who voted to legalize abortion 
nationwide in Roe v. Wade, and Secretary of State Hillary 
Clinton.\130\
---------------------------------------------------------------------------
    \130\See http://www.plannedparenthood.org/about-us/newsroom/
politics-policy-issues/ppfa-margaret-sanger-award-winners-4840.htm.
---------------------------------------------------------------------------
    The ``Margaret Sanger Award'' is not to be confused with 
Planned Parenthood's ``Maggie Award''--also named for Margaret 
Sanger--that is given annually to media outlets that raises the 
abortion industry's profile. Planned Parenthood's web site 
reads: ``The Planned Parenthood Federation of America (PPFA) 
Maggie Awards recognize exceptional contributions . . . that 
enhance the public's understanding of . . . abortion, and 
international family planning. Named after Planned Parenthood 
founder Margaret Sanger, the annual awards cover categories: 
Commentary, Daily Print Reporting. . . .''\131\
---------------------------------------------------------------------------
    \131\See http://www.plannedparenthood.org/about-us/newsroom/
politics-policy-issues/ppfa-maggie-awards-10047.htm.
---------------------------------------------------------------------------
    The eugenic legacy of Planned Parenthood has led many 
Americans, particularly those in the black community, to 
question, why a large number of abortion clinics are located in 
the inner city, with nearly 50% of black pregnancies ending in 
abortion, often at government subsidized health clinics.\132\ 
Significantly, the number of black abortions is likely 
significantly underreported, simply because there exists no 
comprehensive abortion data clearinghouse that gathers complete 
abortion statistics from all 50 states. Those states that do 
report often fail to include the race of the child or mother, 
and rarely tally the increasingly common RU-486 abortions.\133\ 
Nonetheless, the Federal Government continues to give hundreds 
of millions annually to abortion providers through Title X, in 
addition to potentially hundreds of millions more through Title 
XX.
---------------------------------------------------------------------------
    \132\See U.S. National Center for Health Statistics, National Vital 
Statistics Reports (NVSR), Births: Final Data for 2006, Vol. 57, No. 7, 
January 7, 2009; and Births: Preliminary Data for 2007, Vol. 57, No. 
12, March 18, 2009; and earlier reports; Volume 58, Number 4 October 
14, 2009 Estimated Pregnancy Rates for the United States, 1990-2005: An 
Update by Stephanie J. Ventura, M.A.; Joyce C. Abma, Ph.D.; William D. 
Mosher, Ph.D., Division of Vital Statistics; Stanley K. Henshaw, Ph.D., 
The Guttmacher Institute; Trends in the Characteristics of Women 
Obtaining Abortions, 1974 to 2004, See also ``Abortion Rate Among Black 
Woman Far Exceeds Other Groups,'' Fox News, (April 9, 2008), available 
at http://www.foxnews.com/story/0,2933,348649,00.html. (The percentage 
of black unborn children aborted can be derived by comparing the number 
of black births in the National Vital Statistics to the number of black 
abortions reported by the Alan Guttmacher Institute (``AGI''), widely 
considered to be the authority in abortion statistical information. One 
should use caution, however, when examining abortion statistics because 
abortion reporting is incomplete. Some states fail to report at all. 
Therefore, all statistics showing abortion numbers represent minimum 
estimates or floors, not accurate counts. AGI functioned as the 
research arm of the federally funded Planned Parenthood for many years 
before becoming a separate entity in recent years).
    \133\See http://www.ru486.com. (RU-486 is the generic name of 
mifepristone in the U.S., and is sometimes referred to as ``the 
abortion pill,'' non-surgical abortion, or ``medical abortion.'' Non-
surgical abortions using RU486 are performed in the first 63 days of 
the first trimester. Non-surgical abortion is usually in pill form 
(Mifepristone or RU486), but can also be administered by injection or 
in liquid form (methotrexate)). http://www.Mifepristone.com.
---------------------------------------------------------------------------

                             PUBLIC SUPPORT

                     STATE LEVEL PRENDA INITIATIVES

    PRENDA statutes have progressed with broad support at the 
state level. Arizona passed a bill nearly identical to H.R. 
3541 through both houses of the state legislature by 2/3 
margins, and Gov. Brewer signed the bill into law in 2011.\134\ 
In 2009, Oklahoma passed a sex-selection ban through the 
Oklahoma House by a 90% margin. Gov. Henry signed the bill into 
law, but it was later overturned by the Oklahoma Supreme Court 
on technical grounds that it violated a state mandated one 
subject rule.\135\ Georgia passed a bill nearly identical to 
PRENDA through the state Senate by 2/3 margin and through three 
House committees with sizeable margins in 2010.\136\ In 2012, 
Florida introduced a nearly identical bill in both the Florida 
House and Senate.\137\ The bill passed two House subcommittees 
by a substantial margin.\138\ Idaho introduced a similar bill 
in 2010.\139\ In total, seven states have introduced either a 
bill nearly identical to PRENDA or a stand-alone sex-selection 
ban.\140\
---------------------------------------------------------------------------
    \134\H.B. 2443 (Az. 2011).
    \135\H.B. 1595 (Okla. 2009).
    \136\S.B. 529/H.B. 1155 (Ga. 2010).
    \137\H.B. 1327/S.B. 1702 (Fl. 2012).
    \138\Id.
    \139\H.B. 693 (Id. 2010).
    \140\Sara Rubin, The New Push for Abortion Restrictions, The 
Atlantic, (March 18, 2010)http://www.theatlantic.com/politics/archive/
2010/03/the-new-push-for-abortion-restrictions/37656/
---------------------------------------------------------------------------

                                POLLING

    The American people want H.R. 3541. According to a 2006 
Zogby poll, 86% thought that sex-selection abortion should be 
illegal. Four percent were unsure, and only 10% believed that 
sex-selection abortion should be legal.\141\
---------------------------------------------------------------------------
    \141\Press Release, Zogby International, Support for Abortion in 
Sharp Decline, Jan. 23, 2006, available at http://zogby.com/news/2006/
01/23/support-for-abortion-in-sharp-decline/; ``New Zogby International 
Poll: Americans Increasingly Favor Pro-Life Positions,'' LifeNews.com, 
March 27, 2006, available at http://www.lifenews.com/nat2164.html.
---------------------------------------------------------------------------

                        SUPPORTERS OF H.R. 3541

    H.R. 3541 is supported by the Alliance Defense Fund, the 
Susan B. Anthony List, the National Right to Life, the National 
Black Pro-Life Union, The LEARN action network (a network of 
thousands of black pastors), Dr. Alveda King, niece of the 
Reverend Dr. Martin Luther King, Jr., the Population Research 
Institute, Women's Rights Without Frontiers, the American 
Center for Law and Justice, the Concerned Women for America, 
the Family Research Council, Focus on the Family, Liberty 
Council, the Traditional Values Coalition, the Filipino Family 
Fund, the Southern Baptist Conference, Anglicans for Life, 
Students for Life, and many other organizations.

                             BILL ANALYSIS

                         MECHANICS OF H.R. 3541

    H.R. 3541 is a criminal law containing four prohibitions:

        1. LProscribes the performance of an abortion with 
        knowledge that the abortion is sought based on the sex, 
        gender, color or race of the child, or the race of a 
        parent of the child. These abortions are defined in the 
        bill as ``sex-selection abortions'' or ``race-selection 
        abortions.'' Both terms are defined in the bill as 
        elective procedures predicated upon sex or race 
        discrimination.

        2. LProhibits coercion of either a sex-selection or 
        race-selection abortion.

        3. LProhibits solicitation or acceptance of funds for 
        the performance of a sex-selection or race-selection 
        abortion.\142\
---------------------------------------------------------------------------
    \142\See http://liveaction.org/planned-parenthood-racism-project. 
(This addition of this provision was prompted by a 2008 LiveAction 
expose showing that several federally funded Planned Parenthood clinics 
agreed to accept donations earmarked for the termination of black 
babies only. The donors made clear that their intent was to reduce the 
births in the black population at large. Under H.R. 3541, the 
acceptance of these donations would be a crime.)

        4. LProhibits the transport of a woman into the United 
        States or across state lines for the purpose of 
---------------------------------------------------------------------------
        obtaining a sex-selection or race-selection abortion.

    H.R. 3541 amends title 18 of the U.S. Code.\143\ H.R. 3541 
also provides that a violation of the Act is deemed to be a 
violation of the Civil Rights Act of 1964.\144\ Therefore, 
penalties of the Civil Rights Act of 1964 attach, such as the 
loss of Federal funding for offenders. The Attorney General may 
prosecute or seek injunctive relief.\145\ Finally, a private 
right of action lies for family members or for a woman who is 
coerced to submit to a sex-selection or race-selection 
abortion. H.R. 3541 provides damages to reflect the loss of a 
human life, resembling wrongful death damages.
---------------------------------------------------------------------------
    \143\The penalties of title 18 attach; fines may reach $250,000.00 
for individual offenders, $500,000.00 for corporations, and damages may 
be doubled where the offense results in loss of life.
    \144\42 U.S.C. Sec. 2000d--2000d-7 (2009). Civil Rights Act of 
1964, 42 U.S.C. Sec. 3000e (1964). Title VI, provides that ``No person 
in the United States shall, on the ground of race, color, or national 
origin. . . . be subject to discrimination under any program or 
activity receiving Federal financial assistance.'' President John F. 
Kennedy summarized the purpose of this provision: ``Simple justice 
requires that public funds . . . not be spent in any fashion which 
encourages, entrenches, subsidizes or results in racial 
discrimination.''
    \145\42 U.S.C. Sec. 2000h-2 (1972); The Attorney General may also 
intervene: 42 U.S.C. Sec. 2000h-2 (1972): the Attorney General may 
intervene in lawsuits in Federal court ``seeking relief from denial of 
equal protection of the laws under the Fourteenth Amendment to the 
Constitution on account of race, color, religion, sex or national 
origin'' in cases of general public importance. Title IX.
---------------------------------------------------------------------------

                        CONSTITUTIONAL ANALYSIS

    H.R. 3541 presents novel issues for review: (1) whether an 
unborn child can enjoy any degree of protection from 
discrimination as a matter of equal protection under United 
States law; (2) whether the prohibition of only those abortions 
sought on the basis of sex or race constitute an ``undue 
burden'' on a woman's right to choose an abortion.
    Because H.R. 3541 presents issues of first impression, one 
cannot be certain of the outcome in court, but H.R. 3541 can be 
upheld as constitutional under judicial precedents. Congress 
has the authority to pass H.R. 3541 under the power to regulate 
interstate commerce, the power granted under section 2 of the 
Thirteenth Amendment to ``eradicate all badges of slavery,'' 
and the power under section 5 of the Fourteenth Amendment to 
eliminate all barriers to gender equality based on ``invidious, 
archaic and overbroad stereotypes.''\146\
---------------------------------------------------------------------------
    \146\H.R. 3541, the ``Susan B. Anthony and Frederick Douglass 
Prenatal Nondiscrimination Act (PRENDA) of 2011 before the Subcommittee 
on the Constitution, House Judiciary Committee, 112th Cong. (Dec. 6, 
2011) 2011 (Testimony of Steve Aden, Senior Counsel of the Alliance 
Defense Fund); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968); 
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131 (1994).
---------------------------------------------------------------------------

                        THE FOURTEENTH AMENDMENT

    The Supreme Court finds the right to an abortion as 
deriving from an implied right to privacy, via a liberty 
interest inherent in the Fourteenth Amendment, as a matter of 
substantive due process; this right builds on a precedential 
``penumbra,'' formed by an emanation from an earlier guarantee 
to unrestrained access to birth control, established in the 
case of Griswold v. Connecticut.\147\ As Justice Douglas wrote, 
``specific guarantees . . . have penumbras, formed by 
emanations from those guarantees that help give them life and 
substance.''\148\ Building on the Griswold-derived penumbra, 
Roe v. Wade established a fundamental right for a woman to 
decide whether to carry a pregnancy to term.\149\ Planned 
Parenthood v. Casey further held that abortion restrictions are 
permissible but must not create an ``undue burden'' on a 
woman's right to abortion.\150\ Even so, the Casey Court 
affirmed the principle that ``the State has legitimate 
interests from the outset of the pregnancy in protecting the 
health of the woman and the life of the fetus . . . .''\151\
---------------------------------------------------------------------------
    \147\Griswold v. Connecticut, 381 U.S. 479 (1939).
    \148\Id.
    \149\Roe v. Wade, 410 U.S. 113 (1973).
    \150\Planned Parenthood v. Casey, 505 U.S. 833 (1992).
    \151\Id.
---------------------------------------------------------------------------
    No precedent has addressed the question of whether the 
liberty interest to make reproductive decisions is superior or 
inferior to the government's compelling interest in eradicating 
race and sex discrimination.
    In 2007, Gonzales v. Carhart upheld the Federal Partial 
Birth Abortion Ban Act to serve the government interests of 
protecting the reputation of the medical community, preserving 
the integrity and ethics of the medical profession, and 
promoting societal respect for unborn life.\152\ In light of 
the Supreme Court's decision in Gonzales, successful arguments 
could be made to uphold H.R. 3541's prohibition of both 
discriminatory abortions and coerced abortions, and the failure 
of medical professionals to report the commission of 
either.\153\ H.R. 3541 addresses each of the interests 
identified in Gonzales by prohibiting medical professionals 
from performing procedures that Americans find discriminatory, 
barbaric, unethical, and even anathema to a woman's right to 
make reproductive decisions (in the case of coercion).
---------------------------------------------------------------------------
    \152\Gonzales v. Carhart, 550 U.S. 124, 157 (2007).
    \153\Id.
---------------------------------------------------------------------------

                        THE THIRTEENTH AMENDMENT

    In 1866 Congress enacted the first Civil Rights Act.\154\ 
This Act provided that: ``[All citizens of the United States] 
of every race and color, without regard to any previous 
condition of slavery or involuntary servitude . . . shall have 
the same right . . . to make and enforce contracts, to sue, be 
parties, and give evidence, to inherit, purchase, lease, sell, 
hold, and convey real and personal property, and to full and 
equal benefit of all laws and proceedings for the security of 
person and property, as is enjoyed by white citizens . . 
.''\155\
---------------------------------------------------------------------------
    \154\Civil Rights Act of 1866, Sec. 14 Stat. 27 (1866).
    \155\Id.
---------------------------------------------------------------------------
    Congress found the power to enact the Civil Rights Act 
against infringements by the states through the Thirteenth 
Amendment, which prohibits ``slavery [or] involuntary 
servitude, except as a punishment for crime. . . .''\156\ and 
which gives Congress the ``power to enforce this article by 
appropriate legislation.''\157\ As understood by Congress, the 
Thirteenth Amendment prohibits slavery and the opposite of 
slavery is liberty. Therefore any unwarranted restrictions on 
liberty that are race based, may be considered ``incidents'' of 
slavery,\158\ and section 2 of the Thirteenth Amendment 
empowers Congress to protect citizens from unjust restrictions 
on liberty.
---------------------------------------------------------------------------
    \156\U.S. CONST. amend. XIII, Sec. 1.
    \157\U.S. CONST. amend. XIII, Sec. 2.
    \158\Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 (1968).
---------------------------------------------------------------------------
    The U.S. Supreme Court has recognized that the elimination 
of private race or sex discrimination is a sufficient 
government interest to justify regulation, even when contrasted 
against competing rights.\159\ While one may have a right to 
engage in an activity, this does not equate to the right to 
engage in the activity in a discriminatory manner.
---------------------------------------------------------------------------
    \159\Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 
477 U.S. 619, 628 (1986); Roberts v. U.S. Jaycees, 468 U.S. 609, 625 
(1984); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 
(1964).
---------------------------------------------------------------------------
    The Supreme Court's abortion jurisprudence does not require 
a different result. The Supreme Court in Planned Parenthood of 
Southeastern Pennsylvania v. Casey recognized the essential 
holding of the Court in Roe v. Wade--that women possess the 
right to obtain an abortion without undue interference from the 
State before viability. That holding, Casey clarified, was 
based on the Court's perception that the State's interests were 
not strong enough to support a prohibition of abortion or the 
imposition of a substantial obstacle to the woman's effective 
right to elect the procedure at that stage.\160\ The Supreme 
Court has made clear, however, that the government has a 
compelling interest in eliminating discrimination against women 
and minorities, and this compelling interest could prove 
sufficient to hold that such an abortion restriction is 
constitutional.
---------------------------------------------------------------------------
    \160\Casey, 505 U.S. at 846.
---------------------------------------------------------------------------
    The findings of H.R. 3541 explicitly define sex-selection 
and race-selection abortions as elective procedures predicated 
on sex or race discrimination. With this finding, the bill 
makes clear that the target of the legislation is 
discrimination.
    The balance of H.R. 3541's operative provisions are 
likewise well-grounded in Fourteenth Amendment and Commerce 
Clause jurisprudence. The term ``based on [sex or race]'' used 
by H.R. 3541 is similar to the term ``on the grounds of'' 
employed by Title VI, 42 U.S.C. Sec. 2000d, which is 
incorporated by reference in H.R. 3541.\161\ Both of these 
terms are functionally identical to the judicially developed 
term employed by Title VII of the 1964 Civil Rights Act, 
``because of . . . [inter alia] [race or sex].'' The Act 
clarifies that the mother may not be prosecuted or held civilly 
liable under the Act, and thus the private right of action 
provisions strike only at the commercial activity of providing 
abortion, which clearly substantially impacts interstate 
commerce.\162\
---------------------------------------------------------------------------
    \161\Testimony of Steve Aden, supra.
    \162\See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 
(1998) (affirming that the Title VII
    rubric ``because of sex'' is a workable standard that may be 
applied in a variety of contexts).
---------------------------------------------------------------------------

                          THE COMMERCE CLAUSE

    Insofar as H.R. 3541 targets persons who commit, finance or 
coerce a sex or race-selection abortion, Congress has broad 
powers under the Commerce Clause to enact this legislation in 
furtherance of the rights of equality secured by the Thirteenth 
and Fourteenth Amendments.\163\ As the Supreme Court stated in 
United States v. Lopez, ``[W]e have upheld a wide variety of 
congressional acts regulating intrastate economic activity 
where we have concluded that the activity substantially 
affected interstate commerce.''\164\ The economic activity 
regulated by H.R. 3541, abortion services, is demonstrably 
interstate and international in scope, and therefore well 
within the scope of Congress' power under the Commerce Clause.
---------------------------------------------------------------------------
    \163\See U.S.C.A. Const. art. 1, Sec. 8, cl. 3; Civil Rights Act of 
1964, Sec. Sec. 201-207, 201(a), (b)(1), (c)(1), 42 U.S.C.A. 
Sec. Sec. 2000a to 2000a-6, 2000a(a), (b)(1), (c)(1); Heart of Atlanta 
Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. 
McClung, 379 U.S. 294 (1964); Jones v. Alfred H. Mayer Co., 392 U.S. 
409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968).
    \164\United States v. Lopez, 115 S. Ct. 1624 (1994).
---------------------------------------------------------------------------
    Abortion impacts interstate commerce. Abortion is an 
interstate, international, multi-billion dollar business. There 
are, on average, greater than 1.2 million abortions performed 
in the U.S. each year.\165\ This number represents a floor, not 
a ceiling, in that abortion reporting is not required, and many 
states do only scant or partial reporting of abortion data. At 
an average cost of $418 for a first trimester abortion, and 
$1,800-$3,000 for a late-term abortion, one can calculate that 
abortion revenues are approaching one billion annually.\166\
---------------------------------------------------------------------------
    \165\See, www.guttmacher.org, Alan Guttmacher Institute.
    \166\Alan Guttmacher Institute, Facts on Induced Abortion in the 
United States, August 2011; Jones R. K., et al., Abortion in the United 
States: Incidence and Access to Services, 2005, Perspectives on Sexual 
and Reproductive Health, 2008, 40(1):6-16.
---------------------------------------------------------------------------
    Women travel across state lines to an abortion provider, 
either because there are no abortion providers nearer to home, 
or to avoid various state regulations of abortion. Eighty-seven 
percent of all U.S. counties lacked an abortion provider in 
2008, and thirty-five percent of the female population lives in 
those counties.\167\ Mississippi, for example, has gone from 
eight abortion providers to one part-time abortionist, making 
abortionists in the border cities of neighboring states more 
convenient choices. South Dakota has been at times completely 
without a state based abortion provider, so that a single 
abortionist intermittently enters the state, providing the only 
surgical abortion services available. Further, as established 
in the hearings on the Child Interstate Abortion Notification 
Act (CIANA), minors are sometimes transported across state 
lines for abortions to avoid parental consent laws.\168\
---------------------------------------------------------------------------
    \167\Jones R. K., et al., Abortion in the United States: Incidence 
and Access to Services, 2005, Perspectives on Sexual and Reproductive 
Health, 2008, 40(1):6-16.
    \168\Hearing before the Subcommittee on the Constitution of the 
House Judiciary Committee, 109th Congress, 1st Session, on H.R. 748, 
March 3, 2005, Serial No. 109-3.
---------------------------------------------------------------------------
    Sex-selection abortions are typically late-term abortions, 
making interstate travel necessary for many American women who 
would seek one since late-term abortions are performed by few 
abortion providers.\169\ Often there is no late-term abortion 
provider within a state. The sex of a baby is typically 
revealed by a gynecologist at twenty weeks gestation. Only 20% 
of abortion clinics offer abortion after 20 weeks.\170\ Only 8% 
of all abortion providers offer abortions after 24 weeks.\171\
---------------------------------------------------------------------------
    \169\Alan Guttmacher Institute, Facts on Induced Abortion in the 
United States, August 2011, http://www.guttmacher.org/pubs/
fb_induced_abortion.html .(Only twelve percent of abortions in the 
United States are late-term, defined as occurring at 13 weeks or 
later).
    \170\Jones R. K. et al., Abortion in the United States: Incidence 
and Access to Services, 2005, Perspectives on Sexual and Reproductive 
Health, 2008,40(1):6-16.
    \171\Id.
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 3541 on Tuesday, December 6, 2011. The 
Subcommittee heard testimony from four witnesses: Steve Aden, 
Senior Legal Counsel for the Alliance Defense Fund; Steve 
Mosher, President of the Population Research Institute; Edwin 
Black, historian and investigative journalist; and Miriam 
Yeung, Executive Director of the National Asian Pacific 
American Women's Forum (NAPAWF).

                        Committee Consideration

    On February 16, 2012, the Committee met in open session and 
ordered the bill H.R. 3541, as amended, to be reported 
favorably to the House by a vote of 20-13, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3541.
    1. An amendment by Mr. Franks to make technical amendments 
to the bill, including the addition of ``(H.R. 3541)'' to the 
title, and a clarification that a cause of action for a post-
abortive woman who is subject to an illegal abortion under the 
law may bring suit against an offender of any prohibition. 
Agreed to by a vote of 12 to 10.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Chabot......................................................
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................
Mr. Marino......................................................              X
Mr. Gowdy.......................................................
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................
Mr. Amodei......................................................
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Mr. Polis.......................................................
                                                                 -----------------------------------------------
    Total.......................................................             12              10
----------------------------------------------------------------------------------------------------------------


    2. An amendment by Mr. Conyers to strike portions of the 
short title of the bill. Agreed to by a vote of 24 to 1.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Chabot......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Amodei......................................................
Mr. Conyers, Jr., Ranking Member................................
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
Mr. Polis.......................................................
                                                                 -----------------------------------------------
    Total.......................................................             24               1
----------------------------------------------------------------------------------------------------------------


    3. An amendment by Mr. Quiqley to delay the effective date 
of the bill. Defeated by a vote of 9 to 16.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................       X
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................       9       16
------------------------------------------------------------------------


    4. An amendment by Ms. Chu to add a section to the bill 
creating an Office of Pregnant Women. Defeated by a vote of 9 
to 18.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................                X
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................       9       18
------------------------------------------------------------------------


    5. An amendment by Ms. Chu to insert findings regarding 
various statements made by agencies of the United Nations. 
Defeated by a vote of 9 to 18.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................                X
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................       9       18
------------------------------------------------------------------------


    6. An amendment by Mr. Nadler to replace portions of the 
bill with a provision prohibiting coercing a woman to have an 
abortion. Defeated by a vote of 10 to 18.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................                X
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................      10       18
------------------------------------------------------------------------


    7. An amendment by Mr. Nadler to add a provision regarding 
a study of discriminatory employment practices toward pregnant 
women. Defeated by a vote of 12 to 19.

                             ROLLCALL NO. 7
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................                X
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................                X
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................                X
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................       X
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................       X
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................       X
Mr. Polis....................................       X
                                              --------------------------
    Total....................................      12       19
------------------------------------------------------------------------


    8. A motion to report the bill, as amended, favorably to 
the House. Adopted by a vote of 20 to 13.

                             ROLLCALL NO. 8
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................       X
Mr. Sensenbrenner, Jr........................       X
Mr. Coble....................................       X
Mr. Gallegly.................................       X
Mr. Goodlatte................................       X
Mr. Lungren..................................
Mr. Chabot...................................       X
Mr. Issa.....................................       X
Mr. Pence....................................
Mr. Forbes...................................       X
Mr. King.....................................       X
Mr. Franks...................................       X
Mr. Gohmert..................................       X
Mr. Jordan...................................       X
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................       X
Mr. Marino...................................       X
Mr. Gowdy....................................       X
Mr. Ross.....................................       X
Ms. Adams....................................       X
Mr. Quayle...................................       X
Mr. Amodei...................................       X

Mr. Conyers, Jr., Ranking Member.............                X
Mr. Berman...................................                X
Mr. Nadler...................................                X
Mr. Scott....................................                X
Mr. Watt.....................................                X
Ms. Lofgren..................................                X
Ms. Jackson Lee..............................
Ms. Waters...................................                X
Mr. Cohen....................................
Mr. Johnson, Jr..............................                X
Mr. Pierluisi................................                X
Mr. Quigley..................................                X
Ms. Chu......................................                X
Mr. Deutch...................................
Ms. Sanchez..................................                X
Mr. Polis....................................                X
                                              --------------------------
    Total....................................      20       13
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4965, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 19, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3541, the ``Susan 
B. Anthony and Frederick Douglass Prenatal Nondiscrimination 
Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




      H.R. 3541--Susan B. Anthony and Frederick Douglass Prenatal 
                     Nondiscrimination Act of 2011.

    As ordered reported by the House Committee on the Judiciary on 
                           February 16, 2012.




    CBO estimates that implementing H.R. 3541 would have no 
significant cost to the Federal Government. Enacting the bill 
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any 
effects would be insignificant for each year.
    H.R. 3541 would make it a Federal crime to perform certain 
abortions. Because the legislation would establish a new 
offense, the government would be able to pursue cases that it 
otherwise would not be able to prosecute. We expect that H.R. 
3541 would apply to a relatively small number of offenders, so 
any increase in costs for law enforcement, court proceedings, 
or prison operations would not be significant. Any such costs 
would be subject to the availability of appropriated funds.
    Because those prosecuted and convicted under H.R. 3541 
could be subject to criminal fines, the Federal Government 
might collect additional fines if the legislation is enacted. 
Criminal fines are recorded as revenues, deposited in the Crime 
Victims Fund, and later spent. CBO expects that any additional 
revenues and direct spending would not be significant because 
of the small number of cases likely to be affected.
    CBO has not reviewed H.R. 3541 for intergovernmental or 
private-sector mandates. Section 4 of the Unfunded Mandates 
Reform Act excludes from the application of that act any 
legislative provision that establishes statutory rights 
prohibiting discrimination on the basis of sex or race. Because 
the bill would give some individuals the right to take legal 
actions to prevent certain abortions, CBO has determined that 
the bill falls within that exclusion.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that clause 3(c)(4) of rule XIII of 
the Rules of the House of Representatives is inapplicable 
inasmuch as the measure does not authorize funding.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3541 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

Section 1. Short Title
    This section states that the short title of this bill is 
the ``Prenatal Nondiscrimination Act of 2012.''
Section 2. Findings and Constitutional Authority
    Section 2 contains factual findings and the constitutional 
authority for the Act.
Section 3. Discrimination Against the Unborn on the Basis of Race or 
        Sex
    Section 3 amends Title 18 of the United States Code by 
adding a new section 250 at the end of Chapter 13:
    Sec. 250--Discrimination Against the Unborn on the basis of 
race or sex
    Prohibitions. Subsection (a) contains the criminal 
prohibitions of the bill: Subsection (a)(1) prohibits anyone 
from performing an abortion knowing that the abortion is sought 
based on the sex, gender, color or race of the child, or the 
race of a parent of that child; Subsection (a)(2) prohibits the 
use 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; Subsection (a)(3) 
prohibits the solicitation or acceptance of funds for the 
performance of a sex-selection abortion or a race-selection 
abortion; and Subsection (a)(4) prohibits the transportation of 
a woman into the United States or across a State line for the 
purpose of obtaining a sex-selection abortion or race-selection 
abortion. A violation or attempted violation of subsections 
(a)(1-4) shall result in a fine under title Title 18,\172\ or 
imprisonment of not more than 5 years, or both.
---------------------------------------------------------------------------
    \172\18 U.S.C. Sec. 3559. (Because the first four prohibitions of 
H.R. 3541 carry sentences of less than 5 years but more than 1 year, 
these crimes are Class E felonies). 18 U.S.C. Sec. 3571. (The maximum 
statutory fine for individuals committing a Class E felony is $250,000, 
while the statutory maximum fine for organizations is $500,000--per 
count). 18 U.S.C. Sec. 3559. (A violation of the reporting requirement 
carries a sentence of 6 months to 1 year, making this crime a Class A 
misdemeanor. A Class A misdemeanor carries a $100,000 maximum statutory 
penalty if the violation does not result in death, and a $250,000 
maximum statutory penalty where the violation does result in death; 
courts could arguably interpret a violation of the reporting 
requirement either way, depending upon the circumstances, such as 
whether an actual violation occurred, resulting in the death of the 
unborn child. Sentencing Commission fines levied for similar crimes are 
not available to inform sentencing recommendations for H.R. 3541 
because the bill amends the civil rights section of the criminal code, 
where there is no perfectly comparable crime for comparison).
---------------------------------------------------------------------------
    Civil Remedies. Subsection (b) provides the civil remedies 
available under the bill: Subsection (b)(1) provides a civil 
action for a woman upon whom an abortion has been performed or 
attempted in violation of subsection (a)(2); Subsection (b)(2) 
provides a civil action for 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, 
unless the pregnancy resulted from the plaintiff's criminal 
conduct or the plaintiff consented to the abortion.
    Damages. Subsection (b)(3) defines ``appropriate relief'' 
in a civil action under subsection (b): Subsection (b)(3)(A) 
provides for ``objectively verifiable'' money damages for all 
injuries, psychological and physical, including loss of 
companionship and support, occasioned by the violation of 
section 250; Subsection (b)(3)(B) provides for punitive 
damages; Subsection (b)(4)(A) provides injunctive relief to a 
``qualified plaintiff'' in a civil action to prevent an 
abortion provider from performing or attempting further 
abortions in violation of section 250.
    ``Qualified Plaintiff.'' Subsection (b)(4)(B) defines 
`qualified plaintiff' as: (i) a woman upon whom a sex-selection 
or race-selection abortion is performed or attempted; (ii) the 
spouse of such woman; or (iii) the Attorney General.
    Attorney's Fees. Subsection (b)(5) awards attorney's fees 
to prevailing plaintiffs. The award of reasonable attorneys' 
fees for successful plaintiffs follows standard Federal policy. 
Nearly all major civil rights\173\ and environmental 
statutes\174\ include one-way fee-shifting provisions. Other 
Federal statutes have brought entire additional areas of 
litigation under the one-way fee-shifting rule.\175\
---------------------------------------------------------------------------
    \173\See, e.g. Civil Rights Act of 1964, Title II, 42 U.S.C. 
Sec. 2000a-3(b) (2005) (``In any action [for discrimination in public 
accommodations] the court, in its discretion, may allow the prevailing 
party . . . reasonable attorney's fee as part of the costs. . . .''); 
Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-5(k) (2005) (``In any 
action for denial of equal employment opportunities] the court, in its 
discretion, may allow the prevailing party . . . a reasonable 
attorney's fee a part of the costs. . . .''); Civil Rights Act of 1964, 
Title VII, 42 U.S.C. Sec. 2000e-5(g)(2)(B) (2005) (``On a claim in 
which an individual proves a violation under section 703(m) [42 U.S.C. 
Sec. 2000e-2(m)] and a respondent demonstrates that the respondent 
would have taken the same action in the absence of the impermissible 
motivating factor, the court--(i) may grant declaratory relief, 
injunctive relief (except as provided in clause (ii)), and attorney's 
fees and costs demonstrated to be directly attributable only to the 
pursuit of the claim under section 703(m). . . .''); Civil Rights 
Attorney's Fees Awards Act of 1976, 42 U.S.C. Sec. 1988(b) (2005) (``In 
any action or proceeding to enforce a provision of sections 1977, 
1977A, 1978, 1979, 1980, and 1981 of the revised statutes, title IX of 
Public Law 92-318, the Religious Freedom Restoration Act of 1993, the 
Religious Land Use and Institutionalized Persons Act of 2000, title VI 
of the Civil Rights Act of 1964, or section 40302 of the Violence 
Against Women Act of 1994, the court, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee . . . .''); Civil Rights of Institutionalized Persons Act, 42 
U.S.C. Sec. 1997a(b) (2005) (``In any action commenced under this 
section, the court may allow the prevailing party, other than the 
United States, a reasonable attorney's fee against the United States as 
part of the costs.''); 42 U.S.C. Sec. 1997c(d) (2005) (``In any action 
in which the United States joins as an intervener under this section, 
the court may allow the prevailing party, other than the United States, 
a reasonable attorney's fee against the United States as part of the 
costs. . . .'').
    \174\See e.g. Clean Air Act, 42 U.S.C. Sec. 7607(f) (2005) 
(allowing the court to award costs including reasonable attorney's 
fees); Clean Water Act, 33 U.S.C. Sec. 1365(d) (2005) (``The court, in 
issuing a final order in any action [for violation of the Clean Water 
Act], may award costs of litigation (including reasonable attorney and 
expert witness fees) to any prevailing or substantially prevailing 
party, whenever the court determines such award is appropriate.'').
    \175\See Civil Rights Attorney's Fee Award Act of 1976, Pub. L. No. 
94-559, 90 Stat. 2641 (1976); Equal Access to Justice Act, Pub. L. No 
96-481, 94 Stat. 2321 (1980).
---------------------------------------------------------------------------
    Federal Funding. Subsection (c) provides for a loss of 
Federal funding for those persons or entities found guilty of 
violating subsection (a). Further, 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.\176\ Title VI of the Civil Rights Act of 1964 
is titled ``Nondiscrimination in Federally Assisted Programs,'' 
and section 601 provides that, ``No person in the United States 
shall, on the ground of race, color, or national origin, be 
excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity 
receiving federal financial assistance.''
---------------------------------------------------------------------------
    \176\42 U.S.C. Sec. 2000d.
---------------------------------------------------------------------------
    ****Federal Financial Assistance and Coverage Under Title 
VI:
    Title VI does not apply to the Federal Government.\177\ It 
does, however, apply to state, local, or municipal agencies, 
and also to private entities.\178\ In 1988, Congress enacted 
the Civil Rights Restoration Act of 1987,\179\ to broadly 
define covered ``programs and activities'' under Title VI. 
Under that Act, the term ``program or activity'' means all of 
the operations of:
---------------------------------------------------------------------------
    \177\See U.S. Dep't of Justice, Title VI Legal Manual 20 (2001).
    \178\Id.
    \179\Pub. L. No. 100-259 (1988).
---------------------------------------------------------------------------
    (1)(A) a department, agency, special purpose district, or 
other instrumentality of a State or of a local government; or
    (B) the entity of such State or local government that 
distributes such assistance and each such department or agency 
(and each other State or local government entity) to which the 
assistance is extended, in the case of assistance to a State or 
local government . . .
    (3)(A) an entire corporation, partnership, or other private 
organization, or an entire sole proprietorship------
    (i) if assistance is extended to such corporation, 
partnership, private organization, or sole proprietorship as a 
whole; or
    (ii) which is principally engaged in the business of 
providing education, health care, housing, social services, or 
parks and recreation . . . any part of which is extended 
Federal financial assistance.\180\
---------------------------------------------------------------------------
    \180\42 U.S.C. 2000d-4a(2006). See also 28 C.F.R. 42.102(f) 
(defining ``recipient of financial assistance'').
---------------------------------------------------------------------------
    As the Department of Justice's Title VI Legal Manual 
states: ``[t]he clearest example of Federal financial 
assistance is the award or grant of money.''\181\
---------------------------------------------------------------------------
    \181\U.S. Dep't of Justice, supra note 128, at 10; see also 28 
C.F.R. 42.102(c) (Title VI covers entities that receive grants and 
loans of Federal funds).
---------------------------------------------------------------------------
    Reporting Requirement. Subsection (d) provides that 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 title 18 or imprisoned not more than 1 
year, or both.\182\
---------------------------------------------------------------------------
    \182\1 U.S.C. Sec. Sec. 437d and 438 (regarding Federal campaign 
financing laws); 6 U.S.C. Sec. 488f (regarding homeland security); and 
46 U.S.C. Sec. Sec. 3507 and 70107 (regarding ship passenger safety and 
port security). (Five other Federal statutes that require the reporting 
of information to ``appropriate law enforcement authorities.'').
---------------------------------------------------------------------------
    Expedited Consideration. Subsection (e) provides that 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 expedite review of cases brought under the law.\183\
---------------------------------------------------------------------------
    \183\2 U.S.C. Sec. 437h (relating to the McCain-Feingold campaign 
finance law); 2 U.S.C. Sec. 922 (relating to emergency powers to 
restrain budget deficits); 5 U.S.C. Sec. 5312 (relating to executive 
schedule pay rates); 8 U.S.C. Sec. 1252 (relating to immigration 
removal orders); 13 U.S.C. Sec. 141 (relating to census litigation); 31 
U.S.C. Sec. 301 (relating to the Department of the Treasury); and 42 
U.S.C. Sec. 6305 (relating to energy efficiency standards). (Federal 
statutes contain provisions requiring courts to hear certain types of 
cases in an expedited manner).
---------------------------------------------------------------------------
    Exception. Subsection (f) provides that a woman who has a 
sex-selection or race-selection abortion may not be prosecuted 
or held civilly liable for any violation of the law.
    ``Abortion'' defined. Subsection (g) defines abortion as 
``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.''
    Severability. Section 4 provides that if any portion of the 
bill--on its face or as applied to any person or circumstance--
is held invalid, such invalidity shall not affect the remainder 
of the bill.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--CRIMES

           *       *       *       *       *       *       *


                        CHAPTER 13--CIVIL RIGHTS

Sec.
241. Conspiracy against rights.
     * * * * * * *
250. Discrimination against the unborn on the basis of race or sex.

           *       *       *       *       *       *       *


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.

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 3541, the ``Prenatal Nondiscrimination Act (PRENDA) of 
2012,'' as amended, is yet another assault by the Majority on 
women's reproductive rights. It undoes the constitutional 
guarantee of a woman's right to choose that has been recognized 
by the U.S. Supreme Court for nearly 40 years since its 
historic holding in Roe v. Wade.\1\ The bill would make 
abortions--at any point before or after viability--a crime 
under certain circumstances. And, it would provide an 
opportunity for endless and costly litigation because it would 
force a doctor, a court, and a jury to effectively attempt to 
read a woman's mind to determine what her thinking was when she 
chose to have an abortion. As a result, H.R. 3541 would have a 
profound impact on the practice of medicine and the doctor-
patient relationship. It would turn medical personnel into 
``thought police'' because they would be required to examine a 
woman's motives for choosing to have an abortion in order to 
limit the health care providers' own civil and criminal 
liability. Should this deeply flawed legislation become law, 
physicians would be risking such liability if they choose to 
inform a pregnant woman of the sex of her fetus or to discuss 
her options. Accordingly, numerous organizations deeply 
committed to protecting the rights of women and communities of 
color are staunchly opposed to this legislation, including The 
Leadership Conference on Civil and Human Rights,\2\ NARAL Pro-
Choice America,\3\ American Civil Liberties Union,\4\ the 
Center for Reproductive Rights,\5\ Generations Ahead,\6\ 
National Partnership for Women & Families,\7\ Physicians for 
Reproductive Choice and Health,\8\ the Reproductive Justice 
Community,\9\ the National Abortion Federation,\10\ and a 
coalition of 14 Asian American and Pacific Islander community 
organizations.\11\
---------------------------------------------------------------------------
    \1\410 U.S. 113 (1973).
    \2\Letter from Wade Henderson, President & CEO, & Nancy Zirkin, 
Executive Vice President, The Leadership Conference on Civil and Human 
Rights, to Members of the Subcomm. on the Constitution of the H. Comm. 
on the Judiciary (Dec. 5, 2011) (on file with H. Comm. on the 
Judiciary, Democratic staff).
    \3\The Susan B. Anthony and Frederick Douglass Prenatal 
Nondiscrimination Act (PRENDA) of 2011: Hearing on H.R. 3541 Before the 
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 112th 
Cong. 184 (2011) (statement for the record submitted by Nancy Keenan, 
President, NARAL Pro-Choice Am.) [hereinafter H.R. 3541 Hearing].
    \4\Written statement from Laura W. Murphy, Dir., Washington 
Legislative Office, Vania Leveille, Senior Legislative Counsel, & Sarah 
Lipton-Lubet, Policy Counsel, American Civil Liberties Union, to the 
Subcomm. on the Constitution of the H. Comm. on the Judiciary (Dec. 6, 
2012) (on file with H. Committee on the Judiciary, Democratic staff).
    \5\H.R. 3541 Hearing, at 198 (statement for the record submitted by 
the Center for Reproductive Rights).
    \6\Id. at 179 (statement for the record submitted by Sujatha 
Jesudason, Executive Dir., Generations Ahead).
    \7\Id. at 191 (statement for the record submitted by Debra Ness, 
President, & Andrea D. Friedman, Director of Reproductive Health 
Programs, National Partnership for Women & Families).
    \8\Id. at 189 (statement for the record submitted by Douglas W. 
Laube, Board Chair, Physicians for Reproductive Choice and Health).
    \9\Written Testimony from the Reproductive Justice Community, to H. 
Comm. on the Judiciary Subcomm. on the Constitution (Dec. 6, 2011) (on 
file with House Comm. on the Judiciary, Democratic staff) [on behalf 
of: ACCESS Women's Health Justice, Act for Women & Girls, Alliance for 
Human Biotechnology, Am. Medical Student Ass'n, Asian Cmtys. for 
Reprod. Justice (ACRJ), Cal. Latinas for Reprod. Justice, Cal. Black 
Women's Health Project, Ctr. for Genetics & Society, Ctr. For Reprod. 
Rights (CRR), Civil Liberties & Pub. Policy, Feminists for Changes (E. 
Ky. Univ.), Generations Ahead, Jahajee Sisters, Laws Students for 
Reprod. Justice (LSRJ), Nat'l Asian Pacific Am. Women's Forum (NAPAWF), 
Nat'l Network for Abortion Funds, Nat'l Latina Institute for Reprod. 
Health (NLIRH), Our Bodies Ourselves (OBOS), Physicians for Reprod. 
Choice, Religious Coal. for Reprod. Choice, Reprod. Health Technologies 
Project (RHTP), SPARK Reprod. Justice NOW, Trust Black Women, & Young 
Women United].
    \10\Written statement from the National Abortion Federation on H.R. 
3541 (Dec. 6, 2012) (on file with H. Comm. on the Judiciary, Democratic 
staff).
    \11\H.R. 3541 Hearing, at 196 (letter submitted for the record 
submitted from Asian & Pacific Islander American Health Forum, Asian 
Communities for Reproductive Justice, Asian Pacific American Labor 
Alliance, Asian Pacific Partners for Empowerment, Advocacy and 
Leadership, Association of Asian Pacific Community Health 
Organizations, Hmong National Development, Jahajee Sisters, Manavi, 
National Asian Pacific American Families Against Substance Abuse, 
National Asian Pacific American Women's Forum, National Queer Asian 
Pacific Islander Alliance, OCA, Sakhi for South Asian Women, and South 
Asian Americans Leading Together, to Rep. Trent Franks, Chairman, and 
Jerrold Nadler, Ranking Member, Subcomm. on the Constitution of the H. 
Comm. on the Judiciary (Dec. 6, 2011)).
---------------------------------------------------------------------------
    For these reasons, and those discussed below, we 
respectfully dissent and we urge our colleagues to reject this 
seriously flawed bill.

                       DESCRIPTION AND BACKGROUND

    H.R. 3541, as amended, would impose criminal and civil 
liability on any person who: (1) performs certain abortions at 
any time during pregnancy if the purpose of such abortion is to 
terminate a pregnancy on the basis of the fetus' race or sex; 
(2) uses force (or 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 to another state for the purpose of obtaining 
a sex-selection abortion or race-selection abortion. In 
addition, the legislation imposes criminal liability on medical 
personnel who suspect there may have been violation of this 
measure, but fail to report such suspicion to law enforcement 
officials. Further, it terminates Federal funding for health 
care providers who violate this measure.
    Section 1. Short Title. Section 1 sets forth the short 
title of the bill as the ``Prenatal Nondiscrimination Act 
(PRENDA) of 2012.''
    Section 2. Findings and Statement of Constitutional 
Authority. Section 2 sets forth a series of findings that 
assert sex or race selection abortions are a form of 
discrimination on the basis of sex and race.\12\ It appears to 
be intended to lay the groundwork for a direct challenge to the 
Supreme Court's holding in Roe v. Wade, which overruled pre-
viability abortion prohibitions.\13\ For example, one finding 
states that ``Congress has a compelling interest in acting--
indeed it must act--to prohibit sex-selection abortion and 
race-selection abortion.''\14\ Section 2 cites as the 
constitutional authority for this measure the Commerce Clause, 
and the enforcement clauses of the 13th Amendment to the 
Constitution (eliminating involuntary servitude), and the 14th 
Amendment (prohibiting states from ``mak[ing] or enforc[ing] 
any law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction the equal 
protection of the laws.''\15\
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    \12\H.R. 3541, Sec. 2(a)(1)(D) provides: ``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.'' See also Sec. 2(a)(2)(C) ``By definition, race-selection 
abortions do not implicate the health of mother of the unborn, but are 
instead are elective procedures motivated by race bias.''
    \13\``With respect to the State's important and legitimate interest 
in potential life, the `compelling' point is at viability. This is so 
because the fetus then presumably has the capability of meaningful life 
outside the mother's womb. State regulation protective of fetal life 
after viability thus has both logical and biological justifications. If 
the State is interested in protecting fetal life after viability, it 
may go so far as to proscribe abortion during that period, except when 
it is necessary to preserve the life or health of the mother.'' Roe v. 
Wade, 410 U.S. 113, 163-64 (1973) (emphasis added).
    \14\H.R. 3541, Sec. 2(a)(3)(B).
    \15\Section 1 of the 14th Amendment also provides for birthright 
citizenship for all persons born in the United States regardless of the 
immigration status of their parents. U.S. Const., Amend. 14, Sec. 1.
---------------------------------------------------------------------------
    Section 3. Discrimination Against the Unborn on the Basis 
of Race or Sex. Section 3 amends title 18 of the United States 
Code to make certain sex- and race-selection abortions a 
violation of the title's criminal civil rights provisions by 
adding a new section 250 to chapter 13 of such title. All 
further references to these new provisions are to proposed 
section 250.
    It is important to note that the bill fails to distinguish 
between sex selection abortions that are for the purpose of 
preferring one gender over another and an abortion to avoid the 
risk of bearing a child with a sex-linked defect, or for any 
other purpose. Both would be criminalized under the proposed 
legislation.
    Criminal Penalties. Section 250(a) creates four new civil 
rights crimes, each of which is punishable by a fine, or 
imprisonment for up to 5 years, or both, for any person who:
    (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.''
    The fourth item incorporates the same highly controversial 
provision included in the Child Interstate Abortion 
Notification Act, which would make it a Federal offense to 
knowingly transport a minor across a state line, with the 
intent that she obtain an abortion, in circumvention of a 
state's parental consent or parental notification law.\16\ The 
penalty for a violation of the law would be a fine or 
imprisonment for up to 1 year or both.\17\
---------------------------------------------------------------------------
    \16\H.R. 2299, 112th Cong. (2011).
    \17\Id. at Sec. 2.
---------------------------------------------------------------------------
    Civil Cause of Action. Section 250(b)(3) allows a civil 
action to be brought both for ``objectively verifiable money 
damages for all injuries, psychological and physical, including 
loss of companionship and support, occasioned by the violation 
of this section; and punitive damages.'' And, section 250(b)(4) 
authorizes injunctive relief.
    Section 250(b)(1) authorizes a woman upon whom an abortion 
has been performed or attempted by someone who ``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'' to bring an action against that person.
    An action may also be brought by the ``father of an unborn 
child'' or ``a grandparent of the unborn child if the pregnant 
woman is a minor'' against a person who violates the bill's 
criminal prohibitions, ``unless the pregnancy resulted from the 
plaintiff's criminal conduct or the plaintiff consented to the 
abortion'' pursuant to section 250(b)(1) and (2). While the 
role of family members in these situations is usually limited 
to coercion short of the use of 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, this 
section would allow a birth father or parent of the woman to 
sue and obtain money damages, for example, against a doctor, 
even if the former did engage in coercive activity short of the 
criminal prohibition, or if such conduct was engaged in by 
close family members.
    Section 250(b)(4) authorizes an action seeking injunctive 
relief to be brought by ``a woman upon whom an abortion is 
performed or attempted in violation of this section'' or any 
person who is a spouse or a parent of a woman upon whom an 
abortion is performed in violation of this section, or the 
Attorney General of the United States. In addition, section 
250(c) provides for the awarding of attorney's fees and costs, 
but only for a prevailing plaintiff.
    Loss of Federal funding. H.R. 3541 treats a violation of 
its prohibitions as a per se violation of section 601 of the 
Civil Rights Act of 1964, which deals only with discrimination 
on the basis of race, color, or national origin, but not 
gender, in any program or activity receiving Federal financial 
assistance.\18\ This provision of the bill, in turn, would 
trigger section 602 of the Act, which terminates funding for 
any program violating section 601.\19\ The effect of this 
amendment would be that organizations, such as Planned 
Parenthood Federation of America and its affiliates, could be 
targeted. In recent years, these organizations have been 
falsely accused of accepting donations earmarked to abort 
African American fetuses. These allegations arise from a series 
of highly-edited ``sting'' videos made by Live Action, a 
discredited organization devoted to attacking progressive 
organizations through deceptive ``undercover'' operations.\20\
---------------------------------------------------------------------------
    \18\Section 601 states, ``No person in the United States shall, on 
the ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal 
financial assistance.'' 42 U.S.C. Sec. 2000d (2012).
    \19\42 U.S.C. Sec. 2000d-1 (2012).
    \20\Shaila Dewan, To Court Blacks, Foes of Abortion Make Racial 
Case, The New York Times (Feb. 26, 2010) (available at http://
www.nytimes.com/2010/02/27/us/27race.html) (Last visited May 29, 2012).
---------------------------------------------------------------------------
    Section 4. Severability. Section 4 of the bill provides 
that if any portion of the legislation is invalidated, its 
remaining provisions must be given full effect.

                        CONCERNS WITH H.R. 3541

                    I. H.R. 3541 IS UNCONSTITUTIONAL

    The Constitution has recognized that a woman's ``right of 
personal privacy includes the abortion decision.''\21\ While 
opponents of this fundamental constitutional right have long 
sought to overturn or undermine that right, it remains the law 
of the land four decades later. The Majority has devoted a 
great deal of time and energy to undermining thus fundamental 
right in this Congress. In this Congress alone, the Judiciary 
Committee has met 11 times to consider matters undermining 
women's constitutionally protected right to control their won 
bodies.\22\ This legislation is simply the latest salvo in the 
Majority's war on women.
---------------------------------------------------------------------------
    \21\Roe v. Wade, 410 U.S. 113, 154 (1973).
    \22\No Taxpayer funding for Abortion Act: Hearing on H.R. 3 Before 
the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 
112th Cong. (2011); Markup of H.R. 3, the ``No Taxpayer Funding for 
Abortion Act,'' by the H. Comm. on the Judiciary, 112th Cong. (2011); 
The State of Religious Liberty in the United States: Hearing Before the 
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 112th 
Cong. (2011); The Susan B. Anthony and Frederick Douglass Prenatal 
Nondiscrimination Act of 2011: Hearing on H.R. 3541 Before the Subcomm. 
on the Constitution of the H. Comm. on the Judiciary, 112th Cong. 
(2011); Markup of H.R. 3541, the ``Susan B. Anthony and Frederick 
Douglass Prenatal Nondiscrimination Act of 2011'' by the H. Comm. on 
the Judiciary, 112th Cong, (2012); Child Interstate Abortion 
Notification Act: Hearing on H.R. 2299 Before the Subcomm. on the 
Constitution of the H. Comm. on the Judiciary, 112th Cong. (2012); 
Markup of H.R. 2299, the ``Child Interstate Abortion Notification 
Act,'' 112th Cong. (2012); The District of Columbia Pain-Capable Unborn 
Child Protection Act: Hearing on H.R. 3803 Before the Subcomm. on the 
Constitution of the H. Comm. on the Judiciary, 112th Cong. (2012).
---------------------------------------------------------------------------
A. H.R. 3541 Prohibits Abortions Prior to Viability.
    By imposing a criminal penalty for certain abortions at any 
point in a pregnancy, the bill crosses a bright line set out by 
the Supreme Court. It would allow, for the first time since 
Roe, the government to inquire into a woman's motivations for 
having an abortion, and her deliberations with her health care 
provider.
    In its landmark 1973 decision in Roe v. Wade, the Supreme 
Court struck down pre-viability abortion prohibitions.\23\ The 
Court explained:
---------------------------------------------------------------------------
    \23\Roe v. Wade, 410 U.S. 113 (1973).

        With respect to the State's important and legitimate 
        interest in potential life, the `compelling' point is 
        at viability. This is so because the fetus then 
        presumably has the capability of meaningful life 
        outside the mother's womb. State regulation protective 
        of fetal life after viability thus has both logical and 
        biological justification. If the State is interested in 
        protecting fetal life after viability, it may go as far 
        as to proscribe abortion during that period, except 
        when it is necessary to preserve the life or health of 
        the mother.\24\
---------------------------------------------------------------------------
    \24\Id. at 410 U.S. at 163-64 (emphasis added).

    Although the authors of H.R. 3541 attempt to circumvent the 
Court's bright line rule by stating ``Congress has a compelling 
interest in acting--indeed it must act--to prohibit sex-
selection abortion and race-selection abortion,''\25\ the fact 
remains that this legislation proposes a radical change in 
existing constitutional law. A simple assertion in a 
legislative finding, however, cannot wipe away decades of 
critical constitutional protections.
---------------------------------------------------------------------------
    \25\H.R. 3541, Sec. 2(a)(3)(B).
---------------------------------------------------------------------------
    In fact, some proponents of this legislation have publicly 
admitted that it is intended to undermine, and ultimately 
overturn, the Supreme Court's Roe v. Wade decision. For 
example, Steven Mosher, who testified at the Constitution 
Subcommittee hearing on this legislation, has written:

          I propose that we--the pro-life movement--adopt as 
        our next goal the banning of sex- and race-selective 
        abortion. By formally protecting all female fetuses 
        from abortion on ground of their sex, we would plant in 
        the law the proposition that the developing child is a 
        being whose claims on us should not depend on their 
        sex.
          Of course, this suggestion is not original with me. 
        It was originally made by the redoubtable Hadley Arkes, 
        who wrote in the pages of First Things in 1994 that 
        ``we seek simply to preserve the life of the child who 
        survives the abortion. From that modest beginning, we 
        might go on to restrict abortions after the point of 
        ``viability,'' or we could ban those abortions ordered 
        up simply because the child happens to be a female. We 
        could move in this way, in a train of moderate steps, 
        each one commanding a consensus in the public, and each 
        one tending, intelligibly, to the ultimate end, which 
        is to protect the child from its earliest moments.\26\
---------------------------------------------------------------------------
    \26\Steven W. Mosher, A New Front in the Abortion Wars: PreNDA 
Seeks Race and Sex-based Equality for the Unborn, 18 PRI Review (Nov./
Dec. 2008) available at http://www.pop.org/content/a-new-front-in-
abortion-wars-prenda-seeks-1602 (last visited Dec. 5, 2011).

It is clear that H.R. 3541 is nothing more than a reckless 
attempt to override fundamental constitutional protections that 
have been the law of the United States for nearly four decades.
B. LH.R. 3541 Fails To Include the Constitutionally Required Exception 
        To Protect the Health of the Woman
    Although H.R 3541 includes an exception to ``save the life 
or preserve the health of the unborn child,''\27\ it fails to 
include the constitutionally required exception to protect the 
life and health of the woman.\28\ The Supreme Court in Roe was 
unequivocal: ``A . . . criminal abortion statute . . . that 
excepts from criminality only a life-saving procedure on behalf 
of the mother, without regard to pregnancy stage and without 
recognition of the other interests involved, is violative of 
the Due Process Clause of the Fourteenth Amendment.''\29\ In a 
companion case, the Court clarified that ``health'' includes 
both physical and emotional health. It observed:
---------------------------------------------------------------------------
    \27\H.R 3541, Sec. 4 (creating a new 18 U.S.C. 250(g)(1)).
    \28\H.R. 3541 does provide exceptions to ``remove a dead unborn 
child caused by spontaneous abortion'' and to ``remove an ectopic 
pregnancy''). Id. (creating a new 18 U.S.C. 250(g)(2) & (3)).
    \29\Roe at 164.

        [T]he medical judgment may be exercised in the light of 
        all factors-physical, emotional, psychological, 
        familial, and the woman's age-relevant to the well-
        being of the patient. All these factors may relate to 
        health. This allows the attending physician the room he 
        needs to make his best medical judgment. And it is room 
        that operates for the benefit, not the disadvantage, of 
        the pregnant woman.\30\
---------------------------------------------------------------------------
    \30\Doe v. Bolton, 410 U.S. 179, 192 (1973).

In Planned Parenthood of Southeastern Pennsylvania v. Casey the 
Court reaffirmed this rule, explaining that any prohibition 
must make an exception for where an abortion ``is necessary, in 
appropriate medical judgement, for the preservation of the life 
or health'' of the woman.\31\
---------------------------------------------------------------------------
    \31\505 U.S. 833, 879 (1992) (quoting Roe v. Wade) (citations 
omitted).
---------------------------------------------------------------------------
    By failing to include the women's health exception, H.R. 
3541 violates long established constitutional protections and 
jeopardizes the lives of women.

   II. SUPPORTERS OF H.R. 3541 WRONGLY SUGGEST THAT THE LEGISLATION 
            FURTHERS THE STRUGGLE AGAINST RACISM AND SEXISM

    We find it especially disturbing that the title of the 
bill, as introduced, invokes the names of Susan B. Anthony and 
Frederick Douglass in support of the argument that eliminating 
a woman's right to choose furthers the legacy of those great 
civil rights leaders. In fact, despite the heated rhetoric, 
there is no historical basis for asserting that these civil 
rights giants would have supported the legislation. The 
repeated assertions that a woman's right to choose is an attack 
on communities of color and on women, is likewise false.
A. LH.R. 3541 Relies on the Unfounded Canard that Legalized Abortion Is 
        Both Sexist and Racist
    We strenuously oppose the invocation of Susan B. Anthony 
and Frederick Douglass in support of this anti-woman, 
unconstitutional legislation. Indeed, the author of this bill 
went so far as to claim that this legislation was needed 
because legalized abortion ``far outpaces the death caused even 
in the days of slavery.''\32\ Representative Ted Deutch (D-FL) 
expressed our concerns in his response:
---------------------------------------------------------------------------
    \32\Unofficial Tr. of Markup of H.R. 3541 by the H. Comm. on the 
Judiciary, 112th Cong. 34 (Feb. 8, 2012) (comments of Representative 
Trent Franks) [hereinafter Markup Transcript].

        [I]t must be said that to compare the number of 
        abortions to the number of slaves who were killed is to 
        equate women exercising their constitutional rights to 
        the slave masters and those who killed the slaves. That 
        is not acceptable.\33\
---------------------------------------------------------------------------
    \33\Id. at 53.

    Ranking Member John Conyers, Jr. (D-MI) observed, ``as one 
who has perhaps studied and appreciated Frederick Douglass as 
much as anyone on the committee, I have not been able to 
discover what his name on this bill and his connection to it 
are.''\34\ Accordingly, to rectify this egregious flaw in the 
bill, he offered an amendment to strip the names of Frederick 
Douglass and Susan B. Anthony from the bill's short title. 
After extensive debate on this issue and a break in the markup, 
the amendment was adopted on a vote of 24 to 1.\35\
---------------------------------------------------------------------------
    \34\Id. at 18.
    \35\Representative Steven King (R-IA) cast the sole no vote. Id. at 
39.
---------------------------------------------------------------------------
    Proponents of the legislation rely on statistics that 
communities of color have higher rates of abortion than the 
general population. These statistics do not demonstrate that 
legalized abortion is a form of racism, but rather that to the 
extent that these communities have been historically 
underserved in the types of services that prevent unwanted 
pregnancies. The fault lies not with the availability of 
abortion services, but rather with the distorted policies that 
make that option far more necessary. As Ranking Member Conyers 
explained:

        The African-American and Hispanic communities are 
        underserved when it comes to prenatal care and maternal 
        and child health care services. African-Americans have 
        shorter life spans, higher infant mortality rates, 
        higher rates of low birth weight babies. By every 
        measure our community is medically underserved, and the 
        outcomes only reinforce that. And so, those are the 
        issues I would like to direct our attention toward, and 
        I think that in some ways the measure before us 
        signifies an important retreat from civil rights 
        initiatives.\36\
---------------------------------------------------------------------------
    \36\Markup Transcript at 19 (comments of Representative John 
Conyers, Jr.).

    The facts are indeed sobering. African American women are 
already three to four times more likely to die from pregnancy 
related causes than White women,\37\ and their unintended 
pregnancy rate is 67% compared to 40% for White women.\38\
---------------------------------------------------------------------------
    \37\U.S. Department of Health and Human Services Office on Women's 
Health, Pregnancy Related Death (May 18, 2010), available at http://
www.womenshealth.gov/minority-health/african-americans/pregnancy.cfm.
    \38\5 Guttmacher Institute, Facts on Induced Abortion in the United 
States (Aug. 2011), available at http://www.guttmacher.org/pubs/
fb_induced_abortion.html.
---------------------------------------------------------------------------
    Some anti-choice advocates have taken the position that 
Planned Parenthood and other providers are inherently racist. 
For example, one of these organizations asserts the following:

        Planned Parenthood is the largest abortion provider in 
        America. Seventy-eight percent of their clinics are in 
        minority communities. Blacks make up 12% of the 
        population, but 35% of the abortions in America. Are we 
        being targeted? Isn't that genocide? We are the only 
        minority in America that is on the decline in 
        population. If the current trend continues, by 2038 the 
        Black vote will be insignificant. Did you know that the 
        founder of Planned Parenthood, Margaret Sanger, was a 
        devout racist who created the Negro Project designed to 
        sterilize unknowing Black women and others she deemed 
        as undesirables of society? The founder of Planned 
        Parenthood said, ``Colored people are like human weeds 
        and are to be exterminated.'' Is her vision being 
        fulfilled today?\39\
---------------------------------------------------------------------------
    \39\L.E.A.R.N. Northeast (part of the Life Education And Resource 
Network), Planned Parenthood, available at http://blackgenocide.org/
planned.html (last visited May 27, 2012).

Dr. Martin Luther King, Jr., however, took a different view of 
this issue. He strongly supported the work of Ms. Sanger and 
emphasized the importance of access to family planning 
resources for African Americans. On accepting the Margaret 
---------------------------------------------------------------------------
Sanger Award from Planned Parenthood in 1966, Dr. King stated:

        There is a striking kinship between our movement and 
        Margaret Sanger's early efforts. She, like we, saw the 
        horrifying conditions of ghetto life. Like we, she knew 
        that all of society is poisoned by cancerous slums. 
        Like we, she was a direct actionist--a nonviolent 
        resister. She was willing to accept scorn and abuse 
        until the truth she saw was revealed to the millions. 
        At the turn of the century she went into the slums and 
        set up a birth control clinic, and for this deed she 
        went to jail because she was violating an unjust law. 
        Yet the years have justified her actions. She launched 
        a movement which is obeying a higher law to preserve 
        human life under humane conditions. Margaret Sanger had 
        to commit what was then called a crime in order to 
        enrich humanity, and today we honor her courage and 
        vision; for without them there would have been no 
        beginning. Our sure beginning in the struggle for 
        equality by nonviolent direct action may not have been 
        so resolute without the tradition established by 
        Margaret Sanger and people like her. Negroes have no 
        mere academic nor ordinary interest in family planning. 
        They have a special and urgent concern.\40\
---------------------------------------------------------------------------
    \40\Rev. Martin Luther King Jr., Family Planning--A Special and 
Urgent Concern: Speech Accepting the Margaret Sanger Award (1966) 
available at http://www.plannedparenthood.org/about-us/who-we-are/
reverend-martin-luther-king-jr-4728.htm.
---------------------------------------------------------------------------
    In response to a billboard campaign in her district linking 
family planning with racism, Representative Barbara Lee (D-CA) 
observed:

        I am deeply offended by the race-based billboards that 
        are being displayed in my congressional district by the 
        Radiance Foundation and Issues4Life. . . . These 
        billboards stigmatize women of color and perpetuate 
        myths about parenting skills and the types of women who 
        seek and use abortion services. I have and will 
        continue to believe that women have the fundamental 
        rights to make decisions regarding their reproductive 
        lives, and no woman's choice should be subjected to 
        scrutiny based on her ethnic background.\41\
---------------------------------------------------------------------------
    \41\Press Release, Congresswoman Barbara Lee Responds to Billboards 
that Attack a Woman's Right to Choose (June 17, 2011) (emphasis added), 
available at http://lee.house.gov/press-releases/congresswoman-barbara-
lee-responds-to-billboards-that-attack-a-womans-right-to-choose/.

It is therefore not surprising that every leading civil rights 
organization rejects any assertion that this legislation 
furthers the cause of civil rights. In a letter to the Members 
of the Committee, the Leadership Conference on Civil and Human 
Rights, a coalition of more than 200 civil rights 
---------------------------------------------------------------------------
organizations, stated:

        Women and their families continue to bear the negative 
        consequences of persistent sex and race discrimination. 
        Yet, despite its lofty title, HR. 3541 does nothing to 
        address the causes or pernicious effects of such 
        discrimination . . . we must oppose H.R. 3541, which 
        does nothing to address ongoing discrimination.\42\
---------------------------------------------------------------------------
    \42\Letter from Wade Henderson, President & CEO, & Nancy Zirkin, 
Executive Vice President, The Leadership Conference on Civil and Human 
Rights, to Members of the Subcomm. on the Constitution of the H. Comm. 
on the Judiciary (Dec. 5, 2011) (on file with H. Comm. on the 
Judiciary, Democratic staff).

    We strongly concur with these civil rights leaders and 
likewise reject the sponsors' absurd assumption that legalized 
abortion is racist.

III. H.R. 3541 DOES NOTHING TO DEAL WITH THE PROBLEM OF SON PREFERENCE 
      AND THE PRESSURES WOMEN SOMETIMES EXPERIENCE TO PREFER A SON

    The preference for male children is a real if limited 
phenomenon in the United States. Some women face familial and 
community preference to have male children, and that pressure 
can increase with each subsequent birth.
    While H.R. 3541 cites the United Nations Commission on the 
Status of Women as urging governments to prevent sex selective 
abortions,\43\ it ignores the concerns expressed by others in 
the international community--such as the United Nations 
Population Fund, the Office of the United Nations High 
Commissioner for Human Rights, the United Nations Children's 
Fund, United Nations Women, and the World Health Organization--
that abortion restrictions are not the solution because they 
put women's health and lives in jeopardy and violate women's 
human and reproductive rights.\44\
---------------------------------------------------------------------------
    \43\H.R. 3541, Sec. 2(a)(1)(H).
    \44\Office of the High Commissioner for Human Rights et al., 
Preventing Gender-Biased Sex Selection: An Interagency Statement, World 
Health Organization, at 7 (2011).
---------------------------------------------------------------------------
    The Minority witness who testified at the hearing on H.R. 
3541, Miriam Yeung, of the National Asian Pacific American 
Women's Forum (NAPAWF), discussed how Congress could address 
male child preference issue in a manner that is effective and 
that supports women rather than stigmatizing them. She 
explained:

          As an organization that represents Asian American and 
        Pacific Islander women, NAPAWF is extremely concerned 
        that the anti-choice movement is exploiting the issue 
        of son preference in some Asian cultures while doing 
        nothing to support efforts that truly address the 
        issue. It is true that a few studies point to the 
        practice of son preference among Chinese-, Indian-, and 
        Korean-American families with more than one child, with 
        results most pronounced for families with two or more 
        children. Researchers are quick to note that this 
        problem is far from widespread. Because of the low 
        fertility rate in the United States, and because those 
        API ethnicities make up less than two percent of the 
        total US population, this phenomenon would in no way 
        result in the skewed sex ratios that cause concern in 
        Asia.
          Son preference is a symptom of deeply rooted social 
        biases and stereotypes about gender. Gender inequity 
        cannot be solved by banning abortion. The real solution 
        is to change the values that create the preference for 
        sons. Asian American and Pacific Islander women's 
        organizations know this and are working on this problem 
        in culturally competent ways that provide long-term, 
        sustainable solutions. We are working with members of 
        our own community to empower women and girls, thereby 
        challenging norms and transforming values. For example, 
        we are carrying out programs that build the leadership 
        capacity of women, improve their economic standing, 
        create better access to healthcare for them, and lower 
        the rates of gender-based violence against them. 
        Instead of supporting us in this work, proponents of 
        this bill ignore what Asian American and Pacific 
        Islander women know is best for our own community and 
        undermine our agency by trying to curb our rights.\45\
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    \45\Susan B. Anthony and Frederick Douglass Prenatal 
Nondiscrimination Act of 2011: Hearing on H.R. 3541 Before the Subcomm. 
on the Constitution of the H. Comm. on the Judiciary, 112th Cong. 68 
(2011) (testimony of Miriam Yeung) (citations omitted).

    In an effort to address these concerns in a constructive 
and constitutionally sound manner Democratic Members offered a 
series of amendments, all of which were rejected by the 
Majority. For example, Representative Mike Quigley (D-IL) 
offered an amendment in response to concerns voiced by the 
sponsors of this bill that women were the targets of violence 
in an effort to force them to abort female fetuses. His 
amendment would have delayed the bill's effective date until 
the Violence Against Women Act\46\ was fully funded at the 
authorized level for two consecutive fiscal years. The 
amendment failed by a vote of 9 to 16.
---------------------------------------------------------------------------
    \46\Pub.L.No. 103-322, 108 Stat. 1796 (1994).
---------------------------------------------------------------------------
    Representative Jerrold Nadler (D-NY) offered an amendment 
that would have made it a crime to coerce a woman either to 
have or not to have an abortion under any circumstances. This 
amendment was rejected by a vote of 10 to 18. Representative 
Nadler also offered an amendment that would have authorized a 
study into discriminatory practices against pregnant workers. 
That amendment was rejected by a vote of 12 to 19.

 IV. H.R. 3541 VIOLATES THE DOCTOR-PATIENT RELATIONSHIP AND ADVERSELY 
                    IMPACTS THE PRACTICE OF MEDICINE

    H.R. 3541, by introducing civil and criminal penalties, 
will make it more difficult, and in some cases impossible, for 
health care providers to exercise the professional obligations 
to their patients and to the practice of medicine.
    The Supreme Court, in Roe v. Wade, recognized the critical 
role of the doctor-patient relationship and why medical 
judgments should be unfettered by governmental intrusion. It 
explained:

        [T]he right of the physician to administer medical 
        treatment according to his professional judgment up to 
        the points where important state interests provide 
        compelling justifications for intervention. Up to those 
        points, the abortion decision in all its aspects is 
        inherently, and primarily, a medical decision, and 
        basic responsibility for it must rest with the 
        physician. If an individual practitioner abuses the 
        privilege of exercising proper medical judgment, the 
        usual remedies, judicial and intra-professional, are 
        available.\47\
---------------------------------------------------------------------------
    \47\Roe, 410 U.S. at 166.

    H.R. 3541, on the other hand, would force health care 
providers to inquire into a woman's reasons for seeking 
abortion services. Physicians would have to consider whether 
women seeking routine non-abortion services, such as 
determining the sex of the fetus, would then use that 
information in deciding whether to continue a pregnancy.
    The bill's findings purport to suggest the legislation has 
the support of the medical profession. On the contrary, H.R. 
3541 distorts the views of the American Society for 
Reproductive Medicine so flagrantly, that the organization sent 
a letter to the bill's author, Constitution Subcommittee 
Chairman Franks, asking him to correct the record. The Society 
wrote:

        [t]he bill would make illegal the use of elective 
        pregnancy termination in certain circumstances. Our 
        report however is limited to a specific family building 
        treatment modality, and does not address pregnancy 
        termination. We feel it is inappropriate to use the 
        conclusions about sex selection during a family 
        building process in the context of a discussion about 
        pregnancy termination. We would ask you to correct this 
        misrepresentation of our report in the bill.\48\
---------------------------------------------------------------------------
    \48\Letter from Robert W. Rebar, Executive Director, American 
Society for Reproductive Medicine, to Rep. Trent Franks, Chairman, 
Subcomm. on the Constitution of the H. Comm. on the Judiciary (Dec. 20, 
2011) (on file with the H. Comm. on the Judiciary, Democratic staff).

Despite this request, Representative Franks declined to correct 
the findings included in the bill.
    The bill's findings section also selectively quotes an 
ethics opinion by the American College of Obstetricans and 
Gynecologists. In fact, it omits the sentence of the opinion, 
which states that such abortions are, under certain 
circumstances, ``ethically permissible.''\49\ Nor does the bill 
quote the part of the opinion that states:
---------------------------------------------------------------------------
    \49\American College of Obstetricians and Gynecologists, Committee 
on Ethics, Opinion No. 360 (Feb. 2007, reaff'd. 2008).

        Medical techniques intended for other purposes have the 
        potential for being used by patients for sex selection 
        without the health care provider's knowledge or 
        consent. Because a patient is entitled to obtain 
        personal medical information, including information 
        about the sex of her fetus, it will sometimes be 
        impossible for health care professionals to avoid 
        unwitting participation in sex selection.\50\
---------------------------------------------------------------------------
    \50\Id.

    Given the severe civil and criminal penalties doctors face 
under this bill, that observation should give everyone--
including the sponsors of this bill--pause. Doctors would be 
forced to police their patients, read their patients' minds, 
and conceal information from their patients. The failure to 
fulfill any of these requirements would put such medical 
professionals at risk of prosecution and suit.
    To address this shortcoming in the bill, Representative 
Sheila Jackson Lee (D-TX) offered an amendment reaffirming the 
American Medical Association's Code of Medical Ethics Opinion 
5.059, which states:

        Physicians must seek to protect patient privacy in all 
        of its forms, including (1) physical, which focuses on 
        individuals and their personal spaces, (2) 
        informational, which involves specific personal data, 
        (3) decisional, which focuses on personal choices, and 
        (4) associational, which refers to family or other 
        intimate relations. Such respect for patient privacy is 
        a fundamental expression of patient autonomy and is a 
        prerequisite to building the trust that is at the core 
        of the patient-physician relationship.

This amendment, however, failed. By rejecting this amendment, 
the Members who support this legislation also reject the 
fundamental ethical duty that physicians owe to their 
patients--and which would be nullified by this legislation.

                               CONCLUSION

    Rather than addressing the very real problems women face, 
H.R. 3541 would destroy the doctor-patient relationship by 
requiring health care providers to police their patients. This 
legislation represents another assault on the autonomy of 
American women and the protections they have under the 
Constitution. It is worth noting that, despite wrapping this 
legislation in the language of the civil rights movement, many 
of the bill's leading proponents have opposed the 
reauthorization of the Voting Rights Act,\51\ have worked to 
undermine key protections for women such as the Violence 
Against Women Act,\52\ and opposed the Lilly Ledbetter Fair Pay 
Act of 2009.\53\ Perhaps most importantly, H.R. 3541 could 
provide a legal basis for overturning Roe v. Wade and nearly 
four decades of its progeny that have recognized the right of 
all women to control their own reproductive decisions.
---------------------------------------------------------------------------
    \51\Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 
Rights Act Reauthorization and Amendments Act of 2006, Pub.L.No. 109-
246, 120 Stat. 577 (2006).
    \52\Pub.L.No. 103-322, 108 Stat 1796 (1994).
    \53\Pub. L. No. 111-2, 123 Stat. 5 (2009).
---------------------------------------------------------------------------
    It is especially disturbing that this bill (as originally 
introduced) sought to invoke two of our Nation's greatest civil 
rights leaders and the causes for which they heroically 
struggled as justification for the need of this legislation, 
when, in fact, H.R. 3541 would undo constitutional protections 
for the rights of women. This legislation is an insult to the 
memory of these civil rights leaders and their accomplishments, 
and to those who have struggled, and at times died, in the 
cause of liberty and equality.
    Even under its amended title, H.R. 3541 remains an insult 
to American women. The bill utterly fails to do anything to 
assist women in need and does not include a single provision 
that would promote their health or safety. Instead, it is a 
paternalistic measure that asserts that the supporters of H.R. 
3541 are in a better position than health care professionals to 
make life and death decisions for women.
    For these reasons, we must respectfully dissent.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Mike Quigley.
                                   Judy Chu.
                                   Ted Deutch.
                                   Jared Polis.

                                  
