[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 86 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 86
To prohibit discrimination against the unborn on the basis of sex, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 28, 2021
Mr. Kennedy (for himself, Mrs. Blackburn, Mr. Braun, Mr. Cornyn, Mr.
Cotton, Mr. Cramer, Mr. Cruz, Mr. Daines, Ms. Ernst, Mrs. Hyde-Smith,
Mr. Inhofe, Mr. Marshall, Mr. Rounds, Mr. Sasse, and Mr. Thune)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit discrimination against the unborn on the basis of sex, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Prenatal Nondiscrimination Act'' or
``PRENDA''.
SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY.
(a) Findings.--Congress finds the following:
(1) Women are a vital part of American society and culture
and possess the same fundamental human rights and civil rights
as men.
(2) United States law prohibits the dissimilar treatment of
males and females who are similarly situated and prohibits sex
discrimination in various contexts, including the provision of
employment, education, housing, health insurance coverage, and
athletics.
(3) A ``sex-selection abortion'' is an abortion undertaken
for purposes of eliminating an unborn child of an undesired
sex. Sex-selection abortion is described by scholars and civil
rights advocates as an act of sex-based or gender-based
violence, predicated on sex discrimination. By definition, sex-
selection abortions do not implicate the health of the mother
of the unborn, but instead are elective procedures motivated by
sex or gender bias.
(4) The targeted victims of sex-selection abortions
performed in the United States and worldwide are overwhelmingly
female.
(5) Sex-selection abortions are not expressly prohibited by
United States law, and only 7 States ban abortions for reason
of sex selection at some point in pregnancy. Sex is an
immutable characteristic ascertainable at the earliest stages
of human development through existing medical technology and
procedures commonly in use, including maternal-fetal
bloodstream DNA sampling, amniocentesis, chorionic villus
sampling or ``CVS'', and obstetric ultrasound.
(6) Sex-selection abortions have the effect of diminishing
the representation of women in the American population, and
therefore, the American electorate.
(7) Sex-selection abortion reinforces sex discrimination
and has no place in a civilized society.
(8) The history of the United States includes many examples
of sex discrimination. The people of the United States
ultimately responded in the strongest possible legal terms by
enacting a constitutional amendment correcting an element of
this discrimination. Women, once subjected to sex
discrimination that denied them the right to vote, now have
suffrage guaranteed by the 19th Amendment to the Constitution
of the United States. The elimination of discriminatory
practices has been and is among the highest priorities and
greatest achievements of American history.
(9) Implicitly approving the discriminatory practices of
sex-selection abortion by choosing not to prohibit them will
reinforce sex discrimination, and coarsen society to the value
of females. Thus, Congress has a compelling interest in
acting--indeed it must act--to prohibit sex-selection abortion.
(b) Constitutional Authority.--In accordance with the above
findings, Congress enacts the following pursuant to Congress' power
under--
(1) the Commerce Clause;
(2) section 5 of the 14th Amendment to the Constitution of
the United States, including the power to enforce the
prohibition on government action denying equal protection of
the laws; and
(3) section 8 of article I of the Constitution of the
United States to make all laws necessary and proper for the
carrying into execution of powers vested by the Constitution in
the Government of the United States.
SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE BASIS OF SEX.
(a) In General.--Chapter 13 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 250. Discrimination against the unborn on the basis of sex
``(a) In General.--Whoever knowingly--
``(1) performs an abortion knowing that such abortion is
sought based on the sex or gender of the child;
``(2) uses force or the threat of force to intentionally
injure or intimidate any person for the purpose of coercing a
sex-selection abortion;
``(3) solicits or accepts funds for the performance of a
sex-selection abortion; or
``(4) transports a woman into the United States or across a
State line for the purpose of obtaining a sex-selection
abortion,
or attempts to do so, shall be fined under this title or imprisoned not
more than 5 years, or both.
``(b) Civil Remedies.--
``(1) Civil action by woman on whom abortion is
performed.--A woman upon whom an abortion has been performed or
attempted in violation of subsection (a)(2) may in a civil
action against any person who engaged in a violation of
subsection (a) obtain appropriate relief.
``(2) Civil action by relatives.--The father of an unborn
child who is the subject of an abortion performed or attempted
in violation of subsection (a), or a maternal grandparent of
the unborn child if the pregnant woman is an unemancipated
minor, may in a civil action against any person who engaged in
the violation, obtain appropriate relief, unless the pregnancy
or abortion resulted from the plaintiff's criminal conduct or
the plaintiff consented to the abortion.
``(3) Appropriate relief.--Appropriate relief in a civil
action under this subsection includes--
``(A) objectively verifiable money damages for all
injuries, psychological and physical, including loss of
companionship and support, occasioned by the violation
of this section; and
``(B) punitive damages.
``(4) Injunctive relief.--
``(A) In general.--A qualified plaintiff may in a
civil action obtain injunctive relief to prevent an
abortion provider from performing or attempting further
abortions in violation of this section.
``(B) Definition.--In this paragraph the term
`qualified plaintiff' means--
``(i) a woman upon whom an abortion is
performed or attempted in violation of this
section;
``(ii) a maternal grandparent of the unborn
child if the woman upon whom an abortion is
performed or attempted in violation of this
section is an unemancipated minor;
``(iii) the father of an unborn child who
is the subject of an abortion performed or
attempted in violation of subsection (a); or
``(iv) the Attorney General.
``(5) Attorneys fees for plaintiff.--The court shall award
a reasonable attorney's fee as part of the costs to a
prevailing plaintiff in a civil action under this subsection.
``(c) Bar to Prosecution.--A woman upon whom a sex-selection
abortion is performed may not be prosecuted or held civilly liable for
any violation of this section, or for a conspiracy to violate this
section.
``(d) Loss of Federal Funding.--A violation of subsection (a) shall
be deemed for the purposes of title VI of the Civil Rights Act of 1964
to be discrimination prohibited by section 601 of that Act.
``(e) Reporting Requirement.--A physician, physician's assistant,
nurse, counselor, or other medical or mental health professional shall
report known or suspected violations of any of this section to
appropriate law enforcement authorities. Whoever violates this
requirement shall be fined under this title or imprisoned not more than
1 year, or both.
``(f) Expedited Consideration.--It shall be the duty of the United
States district courts, United States courts of appeal, and the Supreme
Court of the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of any matter brought
under this section.
``(g) Protection of Privacy in Court Proceedings.--
``(1) In general.--Except to the extent the Constitution or
other similarly compelling reason requires, in every civil or
criminal action under this section, the court shall make such
orders as are necessary to protect the anonymity of any woman
upon whom an abortion has been performed or attempted if she
does not give her written consent to such disclosure. Such
orders may be made upon motion, but shall be made sua sponte if
not otherwise sought by a party.
``(2) Orders to parties, witnesses, and counsel.--The court
shall issue appropriate orders to the parties, witnesses, and
counsel and shall direct the sealing of the record and
exclusion of individuals from courtrooms or hearing rooms to
the extent necessary to safeguard the identity of the woman
described in paragraph (1) from public disclosure.
``(3) Pseudonym required.--In the absence of written
consent of the woman upon whom an abortion has been performed
or attempted, any party, other than a public official, who
brings an action under this section shall do so under a
pseudonym.
``(4) Limitation.--This subsection shall not be construed
to conceal the identity of the plaintiff or of witnesses from
the defendant or from attorneys for the defendant.
``(h) Definitions.--In this section--
``(1) the term `abortion' means the act of using or
prescribing any instrument, medicine, drug, or any other
substance, device, or means with the intent to--
``(A) kill the unborn child of a woman known to be
pregnant; or
``(B) terminate the pregnancy of a woman known to
be pregnant, with an intention other than--
``(i) after viability to produce a live
birth and preserve the life and health of the
child born alive; or
``(ii) to remove a dead unborn child; and
``(2) the term `sex-selection abortion' means an abortion
undertaken for purposes of eliminating an unborn child of an
undesired sex.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 13 of title 18, United States Code, is amended by adding after
the item relating to section 249 the following:
``250. Discrimination against the unborn on the basis of sex.''.
SEC. 4. SEVERABILITY.
If any portion of this Act, or the amendments made by this Act, or
the application thereof to any person or circumstance is held invalid,
such invalidity shall not affect the portions or applications of this
Act which can be given effect without the invalid portion or
application.
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