I 

112TH CONGRESS 

1ST SESSION H. R. 3541 

To prohibit discrimination against the unborn on the basis of sex or race, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 1, 2011 

Mr. FRANKS of Arizona (for himself, Mr. COLE, Mr. HUELSKAMP, Mr. 

LANKFORD, Mr. FLEMING, Mr. BISHOP of Utah, Mr. PENCE, Mr. 

CHABOT, Mr. POSEY, Mr. GRAVES of Georgia, Mr. GOHMERT, Mr. 

HULTGREN, Mr. GARRETT, Mrs. SCHMIDT, Mr. BRADY of Texas, Mr. 

FORBES, Mr. WILSON of South Carolina, Mr. STUTZMAN, Mrs. LUMMIS, 

Mr. ROE of Tennessee, Mr. NEUGEBAUER, Mr. HARRIS, Mr. YODER, Mr. 

WALBERG, Mr. BOREN, Mr. BARTLETT, Mr. SMITH of Texas, Mr. LIPINSKI, Mrs. BLACK, Mr. BOUSTANY, Mr. WESTMORELAND, Mr. PEARCE, 

Mr. HUIZENGA of Michigan, Mr. ROSS of Florida, Mr. KINZINGER of Illinois, Mr. BURTON of Indiana, Mr. AKIN, Mr. FORTENBERRY, Mr. JONES, 

Mr. DUNCAN of Tennessee, Mrs. BLACKBURN, Mr. CRAWFORD, Mr. 

MCCAUL, Mr. BROUN of Georgia, Mr. MANZULLO, Mr. MCHENRY, Mr. 

LATTA, Mrs. ROBY, Mr. SCALISE, Mr. FARENTHOLD, Mr. MCCOTTER, 

Mr. COBLE, Mr. MILLER of Florida, Mr. PETERSON, and Mr. SMITH of 

New Jersey) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To prohibit discrimination against the unborn on the basis 

of sex or race, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Susan B. Anthony and 

3 Frederick Douglass Prenatal Nondiscrimination Act of 

4 2011’’. 

5 SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY. 

6 (a) FINDINGS.—The Congress makes the following 

7 findings: 

8 (1) SEX DISCRIMINATION FINDINGS.— 

9 (A) Women are a vital part of American 

10 society and culture and possess the same funda11 mental human rights and civil rights as men. 

12 (B) United States law prohibits the dis13 similar treatment of males and females who are 

14 similarly situated and prohibits sex discrimina15 tion in various contexts, including the provision 

16 of employment, education, housing, health in17 surance coverage, and athletics. 

18 (C) Sex is an immutable characteristic as19 certainable at the earliest stages of human de20 velopment through existing medical technology 

21 and procedures commonly in use, including ma22 ternal-fetal bloodstream DNA sampling, 

23 amniocentesis, chorionic villus sampling or 

24 ‘‘CVS’’, and obstetric ultrasound. In addition to 

25 medically assisted sex-determination, a growing 

26 sex-determination niche industry has developed 


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1 and is marketing low-cost commercial products, 

2 widely advertised and available, that aid in the 

3 sex determination of an unborn child without 

4 the aid of medical professionals. Experts have 

5 demonstrated that the sex-selection industry is 

6 on the rise and predict that it will continue to 

7 be a growing trend in the United States. Sex 

8 determination is always a necessary step to the 

9 procurement of a sex-selection abortion. 

10 (D) A ‘‘sex-selection abortion’’ is an abor11 tion undertaken for purposes of eliminating an 

12 unborn child of an undesired sex. Sex-selection 

13 abortion is barbaric, and described by scholars 

14 and civil rights advocates as an act of sex-based 

15 or gender-based violence, predicated on sex dis16 crimination. Sex-selection abortions are typi17 cally late-term abortions performed in the 2nd 

18 or 3rd trimester of pregnancy, after the unborn 

19 child has developed sufficiently to feel pain. 

20 Substantial medical evidence proves that an un21 born child can experience pain at 20 weeks 

22 after conception, and perhaps substantially ear23 lier. By definition, sex-selection abortions do 

24 not implicate the health of the mother of the 


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1 unborn, but instead are elective procedures mo2 tivated by sex or gender bias. 

3 (E) The targeted victims of sex-selection 

4 abortions performed in the United States and 

5 worldwide are overwhelmingly female. The se6 lective abortion of females is female infanticide, 

7 the intentional killing of unborn females, due to 

8 the preference for male offspring or ‘‘son pref9 erence’’. Son preference is reinforced by the low 

10 value associated, by some segments of the world 

11 community, with female offspring. Those seg12 ments tend to regard female offspring as finan13 cial burdens to a family over their lifetime due 

14 to their perceived inability to earn or provide fi15 nancially for the family unit as can a male. In 

16 addition, due to social and legal convention, fe17 male offspring are less likely to carry on the 

18 family name. ‘‘Son preference’’ is one of the 

19 most evident manifestations of sex or gender 

20 discrimination in any society, undermining fe21 male equality, and fueling the elimination of fe22 males’ right to exist in instances of sex-selection 

23 abortion. 

24 (F) Sex-selection abortions are not ex25 pressly prohibited by United States law or the 


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1 laws of 47 States. Sex-selection abortions are 

2 performed in the United States. In a March 

3 2008 report published in the Proceedings of the 

4 National Academy of Sciences, Columbia Uni5 versity economists Douglas Almond and Lena 

6 Edlund examined the sex ratio of United 

7 States-born children and found ‘‘evidence of sex 

8 selection, most likely at the prenatal stage’’. 

9 The data revealed obvious ‘‘son preference’’ in 

10 the form of unnatural sex-ratio imbalances 

11 within certain segments of the United States 

12 population, primarily those segments tracing 

13 their ethnic or cultural origins to countries 

14 where sex-selection abortion is prevalent. The 

15 evidence strongly suggests that some Americans 

16 are exercising sex-selection abortion practices 

17 within the United States consistent with dis18 criminatory practices common to their country 

19 of origin, or the country to which they trace 

20 their ancestry. While sex-selection abortions are 

21 more common outside the United States, the 

22 evidence reveals that female feticide is also oc23 curring in the United States. 

24 (G) The American public supports a prohi25 bition of sex-selection abortion. In a March 


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1 2006 Zogby International poll, 86 percent of 

2 Americans agreed that sex-selection abortion 

3 should be illegal, yet only 3 States proscribe 

4 sex-selection abortion. 

5 (H) Despite the failure of the United 

6 States to proscribe sex-selection abortion, the 

7 United States Congress has expressed repeat8 edly, through Congressional resolution, strong 

9 condemnation of policies promoting sex-selec10 tion abortion in the ‘‘Communist Government 

11 of China’’. Likewise, at the 2007 United Na12 tion’s Annual Meeting of the Commission on 

13 the Status of Women, 51st Session, the United 

14 States delegation spearheaded a resolution call15 ing on countries to condemn sex-selective abor16 tion, a policy directly contradictory to the per17 missiveness of current United States law, which 

18 places no restriction on the practice of sex-se19 lection abortion. The United Nations Commis20 sion on the Status of Women has urged govern21 ments of all nations ‘‘to take necessary meas22 ures to prevent . . . prenatal sex selection’’. 

23 (I) A 1990 report by Harvard University 

24 economist Amartya Sen, estimated that more 

25 than 100 million women were ‘‘demographically 


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1 missing’’ from the world as early as 1990 due 

2 to sexist practices, including sex-selection abor3 tion. Many experts believe sex-selection abortion 

4 is the primary cause. Current estimates of 

5 women missing from the world range in the 

6 hundreds of millions. 

7 (J) Countries with longstanding experience 

8 with sex-selection abortion—such as the Repub9 lic of India, the United Kingdom, and the Peo10 ple’s Republic of China—have enacted restric11 tions on sex-selection, and have steadily contin12 ued to strengthen prohibitions and penalties. 

13 The United States, by contrast, has no law in 

14 place to restrict sex-selection abortion, estab15 lishing the United States as affording less pro16 tection from sex-based feticide than the Repub17 lic of India or the People’s Republic of China, 

18 whose recent practices of sex-selection abortion 

19 were vehemently and repeatedly condemned by 

20 United States congressional resolutions and by 

21 the United States Ambassador to the Commis22 sion on the Status of Women. Public state23 ments from within the medical community re24 veal that citizens of other countries come to the 

25 United States for sex-selection procedures that 


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1 would be criminal in their country of origin. Be2 cause the United States permits abortion on the 

3 basis of sex, the United States may effectively 

4 function as a ‘‘safe haven’’ for those who seek 

5 to have American physicians do what would 

6 otherwise be criminal in their home countries— 

7 a sex-selection abortion, most likely late-term. 

8 (K) The American medical community op9 poses sex-selection abortion. The American Col10 lege of Obstetricians and Gynecologists, com11 monly known as ‘‘ACOG’’, stated in its Feb12 ruary 2007 Ethics Committee Opinion, Number 

13 360, that sex-selection is inappropriate for fam14 ily planning purposes because sex-selection ‘‘ul15 timately supports sexist practices’’. Likewise, 

16 the American Society for Reproductive Medicine 

17 has opined that sex-selection for family plan18 ning purposes is ethically problematic, inappro19 priate, and should be discouraged. 

20 (L) Sex-selection abortion results in an un21 natural sex-ratio imbalance. An unnatural sex22 ratio imbalance is undesirable, due to the in23 ability of the numerically predominant sex to 

24 find mates. Experts worldwide document that a 

25 significant sex-ratio imbalance in which males 


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1 numerically predominate can be a cause of in2 creased violence and militancy within a society. 

3 Likewise, an unnatural sex-ratio imbalance 

4 gives rise to the commoditization of humans in 

5 the form of human trafficking, and a con6 sequent increase in kidnapping and other vio7 lent crime. 

8 (M) Sex-selection abortions have the effect 

9 of diminishing the representation of women in 

10 the American population, and therefore, the 

11 American electorate. 

12 (N) Sex-selection abortion reinforces sex 

13 discrimination and has no place in a civilized 

14 society. 

15 (2) RACIAL DISCRIMINATION FINDINGS.— 

16 (A) Minorities are a vital part of American 

17 society and culture and possess the same funda18 mental human rights and civil rights as the ma19 jority. 

20 (B) United States law prohibits the dis21 similar treatment of persons of different races 

22 who are similarly situated. United States law 

23 prohibits discrimination on the basis of race in 

24 various contexts, including the provision of emVerDate Mar 15 2010 04:44 Dec 02, 2011 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3541.IH H3541

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1 ployment, education, housing, health insurance 

2 coverage, and athletics. 

3 (C) A ‘‘race-selection abortion’’ is an abor4 tion performed for purposes of eliminating an 

5 unborn child because the child or a parent of 

6 the child is of an undesired race. Race-selection 

7 abortion is barbaric, and described by civil 

8 rights advocates as an act of race-based vio9 lence, predicated on race discrimination. By 

10 definition, race-selection abortions do not impli11 cate the health of mother of the unborn, but in12 stead are elective procedures motivated by race 

13 bias. 

14 (D) Only one State, Arizona, has enacted 

15 law to proscribe the performance of race-selec16 tion abortions. 

17 (E) Race-selection abortions have the ef18 fect of diminishing the number of minorities in 

19 the American population and therefore, the 

20 American electorate. 

21 (F) Race-selection abortion reinforces ra22 cial discrimination and has no place in a civ23 ilized society. 

24 (3) GENERAL FINDINGS.— 


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1 (A) The history of the United States in2 cludes examples of both sex discrimination and 

3 race discrimination. The people of the United 

4 States ultimately responded in the strongest 

5 possible legal terms by enacting constitutional 

6 amendments correcting elements of such dis7 crimination. Women, once subjected to sex dis8 crimination that denied them the right to vote, 

9 now have suffrage guaranteed by the 19th 

10 amendment. African-Americans, once subjected 

11 to race discrimination through slavery that de12 nied them equal protection of the laws, now 

13 have that right guaranteed by the 14th amend14 ment. The elimination of discriminatory prac15 tices has been and is among the highest prior16 ities and greatest achievements of American 

17 history. 

18 (B) Implicitly approving the discriminatory 

19 practices of sex-selection abortion and race-se20 lection abortion by choosing not to prohibit 

21 them will reinforce these inherently discrimina22 tory practices, and evidence a failure to protect 

23 a segment of certain unborn Americans because 

24 those unborn are of a sex or racial makeup that 

25 is disfavored. Sex-selection and race-selection 


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1 abortions trivialize the value of the unborn on 

2 the basis of sex or race, reinforcing sex and 

3 race discrimination, and coarsening society to 

4 the humanity of all vulnerable and innocent 

5 human life, making it increasingly difficult to 

6 protect such life. Thus, Congress has a compel7 ling interest in acting—indeed it must act—to 

8 prohibit sex-selection abortion and race-selec9 tion abortion. 

10 (b) CONSTITUTIONAL AUTHORITY.—In accordance 

11 with the above findings, Congress enacts the following 

12 pursuant to Congress’ power under— 

13 (1) the Commerce Clause; 

14 (2) section 2 of the 13th amendment; 

15 (3) section 5 of the 14th amendment, including 

16 the power to enforce the prohibition on government 

17 action denying equal protection of the laws; and 

18 (4) section 8 of article I to make all laws nec19 essary and proper for the carrying into execution of 

20 powers vested by the Constitution in the Govern21 ment of the United States. 


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1 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 

2 BASIS OF RACE OR SEX. 

3 (a) IN GENERAL.—Chapter 13 of title 18, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 250. Discrimination against the unborn on the 

7 basis of race or sex 

8 ‘‘(a) IN GENERAL.—Whoever knowingly— 

9 ‘‘(1) performs an abortion knowing that such 

10 abortion is sought based on the sex, gender, color or 

11 race of the child, or the race of a parent of that 

12 child; 

13 ‘‘(2) uses force or the threat of force to inten14 tionally injure or intimidate any person for the pur15 pose of coercing a sex-selection or race-selection 

16 abortion; 

17 ‘‘(3) solicits or accepts funds for the perform18 ance of a sex-selection abortion or a race-selection 

19 abortion; or 

20 ‘‘(4) transports a woman into the United States 

21 or across a State line for the purpose of obtaining 

22 a sex-selection abortion or race-selection abortion; 

23 or attempts to do so, shall be fined under this title or im24 prisoned not more than 5 years, or both. 

25 ‘‘(b) CIVIL REMEDIES.— 


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1 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM THE

2 ABORTION IS PERFORMED.—A woman upon whom 

3 an abortion has been performed or attempted in vio4 lation of subsection (a)(2), may in a civil action 

5 against any person who engaged in the violation ob6 tain appropriate relief. 

7 ‘‘(2) CIVIL ACTION BY RELATIVES.—The father 

8 of an unborn child who is the subject of an abortion 

9 performed or attempted in violation of subsection 

10 (a), or a maternal grandparent of the unborn child 

11 if the pregnant woman is an unemancipated minor, 

12 may in a civil action against any person who en13 gaged in the violation, obtain appropriate relief, un14 less the pregnancy resulted from the plaintiff’s 

15 criminal conduct or the plaintiff consented to the 

16 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, in21 cluding loss of companionship and support, oc22 casioned by the violation of this section; and 

23 ‘‘(B) punitive damages. 

24 ‘‘(4) INJUNCTIVE RELIEF.— 


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1 ‘‘(A) IN GENERAL.—A qualified plaintiff 

2 may in a civil action obtain injunctive relief to 

3 prevent an abortion provider from performing 

4 or attempting further abortions in violation of 

5 this section. 

6 ‘‘(B) DEFINITION.—In this paragraph the 

7 term ‘qualified plaintiff’ means— 

8 ‘‘(i) a woman upon whom an abortion 

9 is performed or attempted in violation of 

10 this section; 

11 ‘‘(ii) any person who is the spouse or 

12 parent of a woman upon whom an abortion 

13 is performed in violation of this section; or 

14 ‘‘(iii) the Attorney General. 

15 ‘‘(5) ATTORNEYS FEES FOR PLAINTIFF.—The 

16 court shall award a reasonable attorney’s fee as part 

17 of the costs to a prevailing plaintiff in a civil action 

18 under this subsection. 

19 ‘‘(c) LOSS OF FEDERAL FUNDING.—A violation of 

20 subsection (a) shall be deemed for the purposes of title 

21 VI of the Civil Rights Act of 1964 to be discrimination 

22 prohibited by section 601 of that Act. 

23 ‘‘(d) REPORTING REQUIREMENT.—A physician, phy24 sician’s assistant, nurse, counselor, or other medical or 

25 mental health professional shall report known or suspected 


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1 violations of any of this section to appropriate law enforce2 ment authorities. Whoever violates this requirement shall 

3 be fined under this title or imprisoned not more than 1 

4 year, or both. 

5 ‘‘(e) EXPEDITED CONSIDERATION.—It shall be the 

6 duty of the United States district courts, United States 

7 courts of appeal, and the Supreme Court of the United 

8 States to advance on the docket and to expedite to the 

9 greatest possible extent the disposition of any matter 

10 brought under this section. 

11 ‘‘(f) EXCEPTION.—A woman upon whom a sex-selec12 tion or race-selection abortion is performed may not be 

13 prosecuted or held civilly liable for any violation of this 

14 section, or for a conspiracy to violate this section. 

15 ‘‘(g) DEFINITION.—The term ‘abortion’ means the 

16 act of using or prescribing any instrument, medicine, 

17 drug, or any other substance, device, or means with the 

18 intent to terminate the clinically diagnosable pregnancy of 

19 a woman, with knowledge that the termination by those 

20 means will with reasonable likelihood cause the death of 

21 the unborn child, unless the act is done with the intent 

22 to— 

23 ‘‘(1) save the life or preserve the health of the 

24 unborn child; 


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1 ‘‘(2) remove a dead unborn child caused by 

2 spontaneous abortion; or 

3 ‘‘(3) remove an ectopic pregnancy.’’. 

4 (b) CLERICAL AMENDMENT.—The table of sections 

5 at the beginning of chapter 13 of title 18, United States 

6 Code, is amended by adding after the item relating to sec7 tion 249 the following new item: 

‘‘250. Discrimination against the unborn on the basis of race or sex.’’. 

8 SEC. 4. SEVERABILITY. 

9 If any portion of this Act or the application thereof 

10 to any person or circumstance is held invalid, such inva11 lidity shall not affect the portions or applications of this 

12 Act which can be given effect without the invalid portion 

13 or application. 

Æ 


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