Protecting Individuals with Down Syndrome Act

II 118TH CONGRESS 1ST SESSION S. 18 To amend title 18, United States Code, to prohibit discrimination by abortion against an unborn child on the basis of Down syndrome. IN THE SENATE OF THE UNITED STATES JANUARY 23 (legislative day, JANUARY 3), 2023 Mr. DAINES (for himself, Mrs. HYDE-SMITH, Mr. CRAMER, Mr. RUBIO, Mr. HOEVEN, Mr. WICKER, Mr. SCOTT of Florida, Mr. LANKFORD, Mr. RISCH, Mr. BRAUN, Mr. BARRASSO, Mr. CRUZ, Ms. LUMMIS, Mr. HAGERTY, Mr. MULLIN, Mr. VANCE, Mr. MARSHALL, Mr. COTTON, Mrs. BLACKBURN, Mr. THUNE, Mrs. BRITT, Mr. BOOZMAN, and Mr. HAWLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to prohibit discrimi- nation by abortion against an unborn child on the basis of Down syndrome. 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 ‘‘Protecting Individuals 4 with Down Syndrome Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 2 •S 18 IS (1) On June 24, 2022, the United States Su- 1 preme Court issued a decision in Dobbs v. Jackson 2 Women’s Health Organization (No. 19–1392, 2022 3 WL 2276808 (2022)), which overturned its prior, 4 egregiously wrong holding in Roe v. Wade (410 U.S. 5 113 (1973)). 6 (2) Dobbs correctly affirmed that there is no 7 constitutional right to abort an unborn child and 8 that the Court’s prior decision in Roe was not based 9 in the Constitution’s text nor was it deeply rooted in 10 the history and tradition of the United States. 11 (3) Federal law protects individuals with dis- 12 abilities against discrimination, including in the pro- 13 vision of medical care. 14 (4) As Congress has previously affirmed, 15 ‘‘[d]isability is a natural part of the human experi- 16 ence and in no way diminishes the right of individ- 17 uals to live independently, enjoy self-determination, 18 make choices, contribute to society, pursue meaning- 19 ful careers, and enjoy full inclusion and integration 20 in the economic, political, social, and educational 21 mainstream of American society.’’. 22 (5) It is the policy of the United States to re- 23 spect the lives and the dignity of individuals with 24 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 3 •S 18 IS disabilities, including individuals with Down syn- 1 drome. 2 (6) Federal, State, and local government all 3 have a role to play in preventing discrimination 4 based on disability, including discrimination against 5 individuals with Down syndrome. 6 (7) Consistent with the overarching Federal 7 policy of nondiscrimination, and in light of the 8 shameful history of targeting unborn children for 9 abortion based on race, gender, or disabilities, Con- 10 gress must combat invidious discrimination by pro- 11 hibiting doctors from aborting unborn children be- 12 cause the unborn child has been diagnosed with 13 Down syndrome. 14 (8) Tragically, in some countries that have 15 failed to protect unborn children diagnosed with 16 Down syndrome, virtually every unborn child diag- 17 nosed with Down syndrome is aborted. 18 (9) Individuals with Down syndrome are inher- 19 ently valuable and worthy of dignity and respect. 20 They enrich and strengthen our society in countless 21 ways, including but not limited to building meaning- 22 ful relationships, participating in and creating fami- 23 lies, learning, and working alongside other Ameri- 24 cans. 25 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 4 •S 18 IS SEC. 3. DISCRIMINATION BY ABORTION AGAINST AN UN- 1 BORN CHILD ON THE BASIS OF DOWN SYN- 2 DROME PROHIBITED. 3 (a) IN GENERAL.—Chapter 13 of title 18, United 4 States Code, is amended by adding at the end the fol- 5 lowing: 6 ‘‘§ 250. Discrimination by abortion against an unborn 7 child on the basis of Down syndrome pro- 8 hibited 9 ‘‘(a) DEFINITIONS.—In this section: 10 ‘‘(1) ABORTION.—The term ‘abortion’ means 11 the act of using or prescribing any instrument, med- 12 icine, drug, or any other substance, device, or means 13 with the intent to— 14 ‘‘(A) kill the unborn child of a woman 15 known to be pregnant; or 16 ‘‘(B) terminate the pregnancy of a woman 17 known to be pregnant, with an intention other 18 than— 19 ‘‘(i) to produce a live birth and pre- 20 serve the life and health of the child born 21 alive; 22 ‘‘(ii) to save the life of the pregnant 23 woman; or 24 ‘‘(iii) to remove a dead unborn child. 25 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 5 •S 18 IS ‘‘(2) DOWN SYNDROME.—The term ‘Down syn- 1 drome’ means a chromosomal disorder associated 2 with— 3 ‘‘(A) an extra copy of the chromosome 21, 4 in whole or in part; or 5 ‘‘(B) an effective trisomy for chromosome 6 21. 7 ‘‘(3) QUALIFIED PLAINTIFF.—The term ‘quali- 8 fied plaintiff’ means— 9 ‘‘(A) a woman upon whom an abortion is 10 performed or attempted in violation of this sec- 11 tion; 12 ‘‘(B) a maternal grandparent of the un- 13 born child if the woman upon whom an abortion 14 is performed or attempted in violation of this 15 section is an unemancipated minor; 16 ‘‘(C) the father of an unborn child who is 17 the subject of an abortion performed or at- 18 tempted in violation of this section unless the 19 pregnancy or abortion resulted from the crimi- 20 nal conduct of the father; or 21 ‘‘(D) the Attorney General. 22 ‘‘(4) UNBORN CHILD.—The term ‘unborn child’ 23 means an individual of the species homo sapiens 24 from the beginning of the biological development of 25 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 6 •S 18 IS that individual, including fertilization, until the point 1 of being born alive, as defined in section 8(b) of title 2 1. 3 ‘‘(b) OFFENSE.—It shall be unlawful to— 4 ‘‘(1) perform an abortion— 5 ‘‘(A) with the knowledge that a pregnant 6 woman is seeking an abortion, in whole or in 7 part, on the basis of— 8 ‘‘(i) a test result indicating that the 9 unborn child has Down syndrome; 10 ‘‘(ii) a prenatal diagnosis that the un- 11 born child has Down syndrome; or 12 ‘‘(iii) any other reason to believe that 13 the unborn child has or may have Down 14 syndrome; or 15 ‘‘(B) without first— 16 ‘‘(i) asking the pregnant woman if she 17 is aware of any test results, prenatal diag- 18 nosis, or any other evidence that the un- 19 born child has or may have Down syn- 20 drome; and 21 ‘‘(ii) if the woman is aware that the 22 unborn child has or may have Down syn- 23 drome, informing the pregnant woman of 24 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 7 •S 18 IS the prohibitions on abortion under this sec- 1 tion; 2 ‘‘(2) use force or the threat of force to inten- 3 tionally injure or intimidate any person for the pur- 4 pose of coercing an abortion described in paragraph 5 (1)(A); 6 ‘‘(3) solicit or accept funds for the performance 7 of an abortion described in paragraph (1)(A); or 8 ‘‘(4) knowingly transport a woman into the 9 United States or across a State line for the purpose 10 of obtaining an abortion described in paragraph 11 (1)(A). 12 ‘‘(c) CRIMINAL PENALTY.—Any person that violates, 13 or attempts to violate, subsection (b) shall be fined under 14 this title, imprisoned not more than 5 years, or both. 15 ‘‘(d) CIVIL REMEDIES.— 16 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM ABOR- 17 TION IS PERFORMED.—A woman upon whom an 18 abortion has been performed or attempted in viola- 19 tion of subsection (b)(2) may bring a civil action in 20 an appropriate court against any person who en- 21 gaged in a violation of subsection (b)(2) to obtain 22 appropriate relief. 23 ‘‘(2) CIVIL ACTION BY RELATIVES.— 24 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 8 •S 18 IS ‘‘(A) IN GENERAL.—Except as provided in 1 subparagraph (B), the father of an unborn 2 child who is the subject of an abortion per- 3 formed or attempted in violation of subsection 4 (b), or a maternal grandparent of the unborn 5 child if the pregnant woman is an 6 unemancipated minor, may bring a civil action 7 in an appropriate court against any person who 8 engaged in the violation to obtain appropriate 9 relief. 10 ‘‘(B) EXCEPTIONS.—Subparagraph (A) 11 shall not apply if— 12 ‘‘(i) the pregnancy or abortion re- 13 sulted from the criminal conduct of the 14 plaintiff described in subparagraph (A); or 15 ‘‘(ii) the plaintiff described in sub- 16 paragraph (A) consented to the abortion. 17 ‘‘(3) APPROPRIATE RELIEF.—Appropriate relief 18 in a civil action under this subsection includes— 19 ‘‘(A) objectively verifiable money damages 20 for all injuries, psychological and physical, in- 21 cluding loss of companionship and support, oc- 22 casioned by the violation of this section; and 23 ‘‘(B) punitive damages. 24 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 9 •S 18 IS ‘‘(4) INJUNCTIVE RELIEF.—A qualified plaintiff 1 may bring a civil action in an appropriate court to 2 obtain injunctive relief to prevent an abortion pro- 3 vider from performing or attempting further abor- 4 tions in violation of this section. 5 ‘‘(5) ATTORNEY’S FEES FOR PLAINTIFF.—The 6 court shall award a reasonable attorney’s fee as part 7 of the costs to a prevailing plaintiff in a civil action 8 under this subsection. 9 ‘‘(e) BAR TO PROSECUTION.—A woman upon whom 10 an abortion is performed may not be prosecuted or held 11 civilly liable for any violation of this section or for a con- 12 spiracy to violate this section. 13 ‘‘(f) LOSS OF FEDERAL FUNDING.—A violation of 14 subsection (b) shall be deemed discrimination for the pur- 15 poses of section 504 of the Rehabilitation Act of 1973 (29 16 U.S.C. 794). 17 ‘‘(g) REPORTING REQUIREMENT.— 18 ‘‘(1) IN GENERAL.—A physician, physician’s as- 19 sistant, nurse, counselor, or other medical or mental 20 health professional shall report known or suspected 21 violations of any of this section to appropriate law 22 enforcement authorities. 23 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 10 •S 18 IS ‘‘(2) CRIMINAL PENALTY.—Any person who vio- 1 lates paragraph (1) shall be fined under this title, 2 imprisoned not more than 1 year, or both. 3 ‘‘(h) EXPEDITED CONSIDERATION.—It shall be the 4 duty of the district courts of the United States, the courts 5 of appeals of the United States, and the Supreme Court 6 of the United States to advance on the docket and to expe- 7 dite to the greatest possible extent the disposition of any 8 matter brought under this section. 9 ‘‘(i) PROTECTION OF PRIVACY IN COURT PRO- 10 CEEDINGS.— 11 ‘‘(1) IN GENERAL.—Except to the extent the 12 Constitution of the United States or other similarly 13 compelling reason requires, in every civil or criminal 14 action under this section, the court shall make such 15 orders as are necessary to protect the anonymity of 16 any woman upon whom an abortion has been per- 17 formed or attempted if she does not give her written 18 consent to such disclosure. Such orders may be 19 made upon motion, but shall be made sua sponte if 20 not otherwise sought by a party. 21 ‘‘(2) ORDERS TO PARTIES, WITNESSES, AND 22 COUNSEL.—The court shall issue appropriate orders 23 to the parties, witnesses, and counsel and shall di- 24 rect the sealing of the record and exclusion of indi- 25 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 11 •S 18 IS viduals from courtrooms or hearing rooms to the ex- 1 tent necessary to safeguard the identity of a woman 2 described in paragraph (1) from public disclosure. 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 may 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 ‘‘(j) RULE OF CONSTRUCTION.— 14 ‘‘(1) GREATER PROTECTION.—Nothing in this 15 section may be construed to pre-empt or limit any 16 Federal, State or local law that provides greater pro- 17 tections for an unborn child than those provided in 18 this section. 19 ‘‘(2) CREATING OR RECOGNIZING RIGHT.— 20 Nothing in this section shall be construed as cre- 21 ating or recognizing a right to abortion nor shall it 22 make lawful an abortion that is otherwise unlawful 23 under Federal, State, or local law.’’. 24 VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS 12 •S 18 IS (b) CLERICAL AMENDMENT.—The table of sections 1 of chapter 13 of title 18, United States Code, is amended 2 by adding at the end the following: 3 ‘‘250. Discrimination by abortion against an unborn child on the basis of Down syndrome prohibited.’’. SEC. 4. SEVERABILITY. 4 If any portion of this Act, or the amendments made 5 by this Act, or the application thereof to any person or 6 circumstance is held invalid, such invalidity shall not af- 7 fect the portions or applications of this Act which can be 8 given effect without the invalid portion or application. 9 Æ VerDate Sep 11 2014 05:36 Jan 24, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S18.IS S18 kjohnson on DSK79L0C42PROD with BILLS