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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.
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\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\
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\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\
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\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)).
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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\
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\16\H.R. 2299, 112th Cong. (2011).
\17\Id. at Sec. 2.
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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\
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\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\
---------------------------------------------------------------------------
\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\
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\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.
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\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).
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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.
