PRENDA

II 116TH CONGRESS 1ST SESSION S. 182 To prohibit discrimination against the unborn on the basis of sex, and for other purposes. IN THE SENATE OF THE UNITED STATES JANUARY 17, 2019 Mr. KENNEDY (for himself, Mrs. BLACKBURN, and Mr. CRAMER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit discrimination against the unborn on the basis of sex, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Prenatal Non- 4 discrimination Act’’ or ‘‘PRENDA’’. 5 SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY. 6 (a) FINDINGS.—Congress finds the following: 7 (1) Women are a vital part of American society 8 and culture and possess the same fundamental 9 human rights and civil rights as men. 10 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 182 IS (2) United States law prohibits the dissimilar 1 treatment of males and females who are similarly 2 situated and prohibits sex discrimination in various 3 contexts, including the provision of employment, 4 education, housing, health insurance coverage, and 5 athletics. 6 (3) A ‘‘sex-selection abortion’’ is an abortion 7 undertaken for purposes of eliminating an unborn 8 child of an undesired sex. Sex-selection abortion is 9 described by scholars and civil rights advocates as 10 an act of sex-based or gender-based violence, predi- 11 cated on sex discrimination. By definition, sex-selec- 12 tion abortions do not implicate the health of the 13 mother of the unborn, but instead are elective proce- 14 dures motivated by sex or gender bias. 15 (4) The targeted victims of sex-selection abor- 16 tions performed in the United States and worldwide 17 are overwhelmingly female. 18 (5) Sex-selection abortions are not expressly 19 prohibited by United States law, and only 7 States 20 ban abortions for reason of sex selection at some 21 point in pregnancy. Sex is an immutable char- 22 acteristic ascertainable at the earliest stages of 23 human development through existing medical tech- 24 nology and procedures commonly in use, including 25 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 182 IS maternal-fetal bloodstream DNA sampling, amnio- 1 centesis, chorionic villus sampling or ‘‘CVS’’, and 2 obstetric ultrasound. 3 (6) Sex-selection abortions have the effect of di- 4 minishing the representation of women in the Amer- 5 ican population, and therefore, the American elec- 6 torate. 7 (7) Sex-selection abortion reinforces sex dis- 8 crimination and has no place in a civilized society. 9 (8) The history of the United States includes 10 many examples of sex discrimination. The people of 11 the United States ultimately responded in the 12 strongest possible legal terms by enacting a constitu- 13 tional amendment correcting an element of this dis- 14 crimination. Women, once subjected to sex discrimi- 15 nation that denied them the right to vote, now have 16 suffrage guaranteed by the 19th Amendment. The 17 elimination of discriminatory practices has been and 18 is among the highest priorities and greatest achieve- 19 ments of American history. 20 (9) Implicitly approving the discriminatory 21 practices of sex-selection abortion by choosing not to 22 prohibit them will reinforce sex discrimination, and 23 coarsen society to the value of females. Thus, Con- 24 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 182 IS gress has a compelling interest in acting—indeed it 1 must act—to prohibit sex-selection abortion. 2 (b) CONSTITUTIONAL AUTHORITY.—In accordance 3 with the above findings, Congress enacts the following 4 pursuant to Congress’ power under— 5 (1) the Commerce Clause; 6 (2) section 5 of the 14th Amendment to the 7 Constitution of the United States, including the 8 power to enforce the prohibition on government ac- 9 tion denying equal protection of the laws; and 10 (3) section 8 of article I of the Constitution of 11 the United States to make all laws necessary and 12 proper for the carrying into execution of powers 13 vested by the Constitution in the Government of the 14 United States. 15 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 16 BASIS OF SEX. 17 (a) IN GENERAL.—Chapter 13 of title 18, United 18 States Code, is amended by adding at the end the fol- 19 lowing: 20 ‘‘§ 250. Discrimination against the unborn on the 21 basis of sex 22 ‘‘(a) IN GENERAL.—Whoever knowingly— 23 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 182 IS ‘‘(1) performs an abortion knowing that such 1 abortion is sought based on the sex or gender of the 2 child; 3 ‘‘(2) uses force or the threat of force to inten- 4 tionally injure or intimidate any person for the pur- 5 pose of coercing a sex-selection abortion; 6 ‘‘(3) solicits or accepts funds for the perform- 7 ance of a sex-selection abortion; or 8 ‘‘(4) transports a woman into the United States 9 or across a State line for the purpose of obtaining 10 a sex-selection abortion, 11 or attempts to do so, shall be fined under this title or im- 12 prisoned not more than 5 years, or both. 13 ‘‘(b) CIVIL REMEDIES.— 14 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM ABOR- 15 TION IS PERFORMED.—A woman upon whom an 16 abortion has been performed or attempted in viola- 17 tion of subsection (a)(2) may in a civil action 18 against any person who engaged in a violation of 19 subsection (a) obtain appropriate relief. 20 ‘‘(2) CIVIL ACTION BY RELATIVES.—The father 21 of an unborn child who is the subject of an abortion 22 performed or attempted in violation of subsection 23 (a), or a maternal grandparent of the unborn child 24 if the pregnant woman is an unemancipated minor, 25 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 182 IS may in a civil action against any person who en- 1 gaged in the violation, obtain appropriate relief, un- 2 less the pregnancy or abortion resulted from the 3 plaintiff’s criminal conduct or the plaintiff consented 4 to the abortion. 5 ‘‘(3) APPROPRIATE RELIEF.—Appropriate relief 6 in a civil action under this subsection includes— 7 ‘‘(A) objectively verifiable money damages 8 for all injuries, psychological and physical, in- 9 cluding loss of companionship and support, oc- 10 casioned by the violation of this section; and 11 ‘‘(B) punitive damages. 12 ‘‘(4) INJUNCTIVE RELIEF.— 13 ‘‘(A) IN GENERAL.—A qualified plaintiff 14 may in a civil action obtain injunctive relief to 15 prevent an abortion provider from performing 16 or attempting further abortions in violation of 17 this section. 18 ‘‘(B) DEFINITION.—In this paragraph the 19 term ‘qualified plaintiff’ means— 20 ‘‘(i) a woman upon whom an abortion 21 is performed or attempted in violation of 22 this section; 23 ‘‘(ii) a maternal grandparent of the 24 unborn child if the woman upon whom an 25 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 182 IS abortion is performed or attempted in vio- 1 lation of this section is an unemancipated 2 minor; 3 ‘‘(iii) the father of an unborn child 4 who is the subject of an abortion per- 5 formed or attempted in violation of sub- 6 section (a); or 7 ‘‘(iv) the Attorney General. 8 ‘‘(5) ATTORNEYS FEES FOR PLAINTIFF.—The 9 court shall award a reasonable attorney’s fee as part 10 of the costs to a prevailing plaintiff in a civil action 11 under this subsection. 12 ‘‘(c) BAR TO PROSECUTION.—A woman upon whom 13 a sex-selection abortion is performed may not be pros- 14 ecuted or held civilly liable for any violation of this section, 15 or for a conspiracy to violate this section. 16 ‘‘(d) LOSS OF FEDERAL FUNDING.—A violation of 17 subsection (a) shall be deemed for the purposes of title 18 VI of the Civil Rights Act of 1964 to be discrimination 19 prohibited by section 601 of that Act. 20 ‘‘(e) REPORTING REQUIREMENT.—A physician, phy- 21 sician’s assistant, nurse, counselor, or other medical or 22 mental health professional shall report known or suspected 23 violations of any of this section to appropriate law enforce- 24 ment authorities. Whoever violates this requirement shall 25 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 182 IS be fined under this title or imprisoned not more than 1 1 year, or both. 2 ‘‘(f) EXPEDITED CONSIDERATION.—It shall be the 3 duty of the United States district courts, United States 4 courts of appeal, and the Supreme Court of the United 5 States to advance on the docket and to expedite to the 6 greatest possible extent the disposition of any matter 7 brought under this section. 8 ‘‘(g) PROTECTION OF PRIVACY IN COURT PRO- 9 CEEDINGS.— 10 ‘‘(1) IN GENERAL.—Except to the extent the 11 Constitution or other similarly compelling reason re- 12 quires, in every civil or criminal action under this 13 section, the court shall make such orders as are nec- 14 essary to protect the anonymity of any woman upon 15 whom an abortion has been performed or attempted 16 if she does not give her written consent to such dis- 17 closure. Such orders may be made upon motion, but 18 shall be made sua sponte if not otherwise sought by 19 a party. 20 ‘‘(2) ORDERS TO PARTIES, WITNESSES, AND 21 COUNSEL.—The court shall issue appropriate orders 22 to the parties, witnesses, and counsel and shall di- 23 rect the sealing of the record and exclusion of indi- 24 viduals from courtrooms or hearing rooms to the ex- 25 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 182 IS tent necessary to safeguard the identity of the 1 woman described in paragraph (1) from public dis- 2 closure. 3 ‘‘(3) PSEUDONYM REQUIRED.—In the absence 4 of written consent of the woman upon whom an 5 abortion has been performed or attempted, any 6 party, other than a public official, who brings an ac- 7 tion under this section shall do so under a pseu- 8 donym. 9 ‘‘(4) LIMITATION.—This subsection shall not be 10 construed to conceal the identity of the plaintiff or 11 of witnesses from the defendant or from attorneys 12 for the defendant. 13 ‘‘(h) DEFINITIONS.—In this section— 14 ‘‘(1) the term ‘abortion’ means the act of using 15 or prescribing any instrument, medicine, drug, or 16 any other substance, device, or means with the in- 17 tent to— 18 ‘‘(A) kill the unborn child of a woman 19 known to be pregnant; or 20 ‘‘(B) terminate the pregnancy of a woman 21 known to be pregnant, with an intention other 22 than— 23 VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 182 IS ‘‘(i) after viability to produce a live 1 birth and preserve the life and health of 2 the child born alive; or 3 ‘‘(ii) to remove a dead unborn child; 4 and 5 ‘‘(2) the term ‘sex-selection abortion’ means an 6 abortion undertaken for purposes of eliminating an 7 unborn child of an undesired sex.’’. 8 (b) CLERICAL AMENDMENT.—The table of sections 9 at the beginning of chapter 13 of title 18, United States 10 Code, is amended by adding after the item relating to sec- 11 tion 249 the following new item: 12 ‘‘250. Discrimination against the unborn on the basis of sex.’’. SEC. 4. SEVERABILITY. 13 If any portion of this Act, or the amendments made 14 by this Act, or the application thereof to any person or 15 circumstance is held invalid, such invalidity shall not af- 16 fect the portions or applications of this Act which can be 17 given effect without the invalid portion or application. 18 Æ VerDate Sep 11 2014 00:33 Jan 26, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S182.IS S182 pamtmann on DSKBFK8HB2PROD with BILLS