I 

111TH CONGRESS 

1ST SESSION H. R. 1822 

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

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 31, 2009 

Mr. FRANKS of Arizona (for himself, Mr. ADERHOLT, Mr. AKIN, Mrs. 

BACHMANN, Mr. BARRETT of South Carolina, Mr. BOOZMAN, Mr. BROUN

of Georgia, Mr. BURTON of Indiana, Mr. COLE, Mr. CONAWAY, Mr. 

FORBES, Mr. FORTENBERRY, Mr. GARRETT of New Jersey, Mr. 

HUNTER, Mr. KING of Iowa, Mr. LAMBORN, Mr. LATTA, Mr. LINDER, 

Mr. LIPINSKI, Mr. MCCOTTER, Mr. MCHENRY, Mr. PENCE, Mr. 

SCALISE, Mrs. SCHMIDT, Mr. SMITH of New Jersey, Mr. SMITH of Texas, 

Mr. SOUDER, Mr. TAYLOR, and Mr. WILSON of South Carolina) 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, 

3 SECTION 1. SHORT TITLE. 

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

5 Frederick Douglass Prenatal Nondiscrimination Act of 

6 2009’’. 


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1 SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY. 

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

3 findings: 

4 (1) SEX DISCRIMINATION FINDINGS.— 

5 (A) Women are a vital part of American 

6 society and culture and possess the same funda7 mental human rights and civil rights as men. 

8 (B) United States law prohibits the dis9 similar treatment for males and females who 

10 are similarly situated and prohibits sex dis11 crimination in various contexts, including the 

12 provision of employment, education, housing, 

13 health insurance coverage, and athletics. 

14 (C) Sex is an immutable characteristic, 

15 and is ascertainable at the earliest stages of 

16 human development through existing medical 

17 technology and procedures commonly in use, in18 cluding maternal-fetal bloodstream DNA sam19 pling, amniocentesis, chorionic villus sampling 

20 or ‘‘CVS’’, and medical sonography. In addition 

21 to medically assisted sex-determination carried 

22 out by medical professionals, a growing sex-de23 termination niche industry has developed and is 

24 marketing low-cost commercial products, widely 

25 advertised and available, that aid in the sex de26 termination of an unborn child without the aid 


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1 of medical professionals. Experts have dem2 onstrated that the sex-selection industry is on 

3 the rise and predict that it will continue to be 

4 a growing trend in the United States. Sex de5 termination is always a necessary step to the 

6 procurement of a sex-selection abortion. 

7 (D) A ‘‘sex-selection abortion’’ is an abor8 tion undertaken for purposes of eliminating an 

9 unborn child of an undesired sex. Sex-selection 

10 abortion is barbaric, and described by scholars 

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

12 or gender-based violence, predicated on sex dis13 crimination. By definition, sex-selection abor14 tions do not implicate the health of the mother 

15 of the unborn, but instead are elective proce16 dures motivated by sex or gender bias. 

17 (E) The targeted victims of sex-selection 

18 abortions performed in the United States and 

19 worldwide are overwhelmingly female. The se20 lective abortion of females is female infanticide, 

21 the intentional killing of unborn females, due to 

22 the preference for male offspring or ‘‘son pref23 erence’’. Son preference is reinforced by the low 

24 value associated, by some segments of the world 

25 community, with female offspring. Those segVerDate Nov 24 2008 00:05 Apr 02, 2009 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1822.IH H1822

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1 ments tend to regard female offspring as finan2 cial burdens to a family over their lifetime due 

3 to their perceived inability to earn or provide fi4 nancially for the family unit as can a male. In 

5 addition, due to social and legal convention, fe6 male offspring are less likely to carry on the 

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

8 most evident manifestations of sex or gender 

9 discrimination in any society, undermining fe10 male equality, and fueling the elimination of fe11 males’ right to exist in instances of sex-selection 

12 abortion. 

13 (F) Sex-selection abortions are not ex14 pressly prohibited by United States law and the 

15 laws of 48 States. Sex-selection abortions are 

16 performed in the United States. In a March 

17 2008 report published in the Proceedings of the 

18 National Academy of Sciences, Columbia Uni19 versity economists Douglas Almond and Lena 

20 Edlund examined the sex ratio of United 

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

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

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

24 the form of unnatural sex-ratio imbalances 

25 within certain segments of the United States 


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1 population, primarily those segments tracing 

2 their ethnic or cultural origins to countries 

3 where sex-selection abortion is prevalent. The 

4 evidence strongly suggests that some Americans 

5 are exercising sex-selection abortion practices 

6 within the United States consistent with dis7 criminatory practices common to their country 

8 of origin, or the country to which they trace 

9 their ancestry. While sex-selection abortions are 

10 more common outside the United States, the 

11 evidence reveals that female feticide is also oc12 curring in the United States. 

13 (G) The American public supports a prohi14 bition of sex-selection abortion. In a March 

15 2006 Zogby International poll, 86 percent of 

16 Americans agreed that sex-selection abortion 

17 should be illegal, yet only two States have pro18 scribed sex-selection abortion. 

19 (H) Despite the failure of the United 

20 States to proscribe sex-selection abortion, the 

21 United States Congress has expressed repeat22 edly, through Congressional resolution, strong 

23 condemnation of policies promoting sex-selec24 tion abortion in the ‘‘Communist Government 

25 of China’’. Likewise, at the 2007 United NaVerDate Nov 24 2008 00:05 Apr 02, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1822.IH H1822

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1 tion’s Annual Meeting of the Commission on 

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

3 States’ delegation spearheaded a resolution call4 ing on countries to eliminate sex-selective abor5 tion, a policy directly contradictory to the per6 missiveness of current United States’ law, 

7 which places no restriction on the practice of 

8 sex-selection abortion. The United Nations 

9 Commission on the Status of Women has urged 

10 governments of all nations ‘‘to take necessary 

11 measures to prevent . . . prenatal sex selec12 tion’’. 

13 (I) A 1990 report by Harvard University 

14 economist Amartya Sen, estimated that more 

15 than 100 million women were ‘‘demographically 

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

17 to sexist practices, including sex-selection abor18 tion. Many experts believe sex-selection abortion 

19 is the primary cause. As of 2008, estimates of 

20 women missing from the world range in the 

21 hundreds of millions. 

22 (J) Countries with longstanding experience 

23 with sex-selection abortion—such as the Repub24 lic of India, the United Kingdom, and the Peo25 ple’s Republic of China—have enacted complete 


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1 bans on sex-selection abortion, and have stead2 ily continued to strengthen prohibitions and 

3 penalties. The United States, by contrast, has 

4 no law in place to restrict sex-selection abor5 tion, establishing the United States as affording 

6 less protection from sex-based feticide than the 

7 Republic of India or the People’s Republic of 

8 China, whose recent practices of sex-selection 

9 abortion were vehemently and repeatedly con10 demned by United States congressional resolu11 tions and by the United States’ Ambassador to 

12 the Commission on the Status of Women. Pub13 lic statements from within the medical commu14 nity reveal that citizens of other countries come 

15 to the United States for sex-selection proce16 dures that would be criminal in their country of 

17 origin. Because the United States permits abor18 tion on the basis of sex, the United States may 

19 effectively function as a ‘‘safe haven’’ for those 

20 who seek to have American physicians do what 

21 would otherwise be criminal in their home coun22 tries—a sex-selection abortion, most likely late23 term. 

24 (K) The American medical community op25 poses sex-selection abortion. The American ColVerDate Nov 24 2008 00:05 Apr 02, 2009 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1822.IH H1822

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1 lege of Obstetricians and Gynecologists, com2 monly known as ‘‘ACOG’’, stated in its Feb3 ruary 2007 Ethics Committee Opinion, Number 

4 360, that sex-selection is inappropriate for fam5 ily planning purposes because sex-selection ‘‘ul6 timately supports sexist practices’’. Likewise, 

7 the American Society for Reproductive Medicine 

8 has opined that sex-selection for family plan9 ning purposes is ethically problematic, inappro10 priate, and should be discouraged. 

11 (L) Sex-selection abortion results in an un12 natural sex-ratio imbalance. An unnatural sex13 ratio imbalance is undesirable, due to the in14 ability of the numerically predominant sex to 

15 find mates. Experts worldwide document that a 

16 significant sex-ratio imbalance in which males 

17 numerically predominate can be a cause of in18 creased violence and militancy within a society. 

19 Likewise, an unnatural sex-ratio imbalance 

20 gives rise to the commoditization of humans in 

21 the form of human trafficking, and a con22 sequent increase in kidnapping and other vio23 lent crime. 

24 (M) Sex-selection abortions have the effect 

25 of diminishing the representation of women in 


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1 the American population, and therefore, the 

2 American electorate. 

3 (N) Sex-selection abortion reinforces sex 

4 discrimination and has no place in a civilized 

5 society. 

6 (2) RACIAL DISCRIMINATION FINDINGS.— 

7 (A) Minorities are a vital part of American 

8 society and culture and possess the same funda9 mental human rights and civil rights as the ma10 jority. 

11 (B) United Sates law prohibits the dis12 similar treatment of persons of different races 

13 who are similarly situated. United States law 

14 prohibits discrimination on the basis of race in 

15 various contexts, including the provision of em16 ployment, education, housing, health insurance 

17 coverage, and athletics. 

18 (C) A ‘‘race-selection abortion’’ is an abor19 tion performed for purposes of eliminating an 

20 unborn child because the child or a parent of 

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

22 abortion is barbaric, and described by civil 

23 rights advocates as an act of race-based vio24 lence, predicated on race discrimination. By 

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1 cate the health of mother of the unborn, but in2 stead are elective procedures motivated by race 

3 bias. 

4 (D) No State has enacted law to proscribe 

5 the performance of race-selection abortions. 

6 (E) Race-selection abortions have the ef7 fect of diminishing the number of minorities in 

8 the American population and therefore, the 

9 American electorate. 

10 (F) Race-selection abortion reinforces ra11 cial discrimination and has no place in a civ12 ilized society. 

13 (3) GENERAL FINDINGS.— 

14 (A) The history of the United States in15 cludes examples of both sex discrimination and 

16 race discrimination. The people of the United 

17 States ultimately responded in the strongest 

18 possible legal terms by enacting constitutional 

19 amendments correcting elements of such dis20 crimination. Women, once subjected to sex dis21 crimination that denied them the right to vote, 

22 now have suffrage guaranteed by the 19th 

23 amendment. African-Americans, once subjected 

24 to race discrimination through slavery that de25 nied them equal protection of the laws, now 


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1 have that right guaranteed by the 14th amend2 ment. The elimination of discriminatory prac3 tices has been and is among the highest prior4 ities and greatest achievements of American 

5 history. 

6 (B) Implicitly approving the discriminatory 

7 practices of sex-selection abortion and race-se8 lection abortion by choosing not to prohibit 

9 them will reinforce these inherently discrimina10 tory practices, and evidence a failure to protect 

11 a segment of certain unborn Americans because 

12 those unborn are of a sex or racial makeup that 

13 is disfavored. Sex-selection and race-selection 

14 abortions trivialize the value of the unborn on 

15 the basis of sex or race, reinforcing sex and 

16 race discrimination, and coarsening society to 

17 the humanity of all vulnerable and innocent 

18 human life, making it increasingly difficult to 

19 protect such life. Thus, Congress has a compel20 ling interest in acting—indeed it must act—to 

21 prohibit sex-selection abortion and race-selec22 tion abortion. 

23 (b) CONSTITUTIONAL AUTHORITY.—In accordance 

24 with the above findings, Congress enacts the following 

25 pursuant to Congress’ power under section 2 of the 13th 


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1 amendment and section 5 of the 14th amendment to en2 force those amendments, including the prohibition on gov3 ernment action denying equal protection of the laws, and 

4 the power to pass all legislation necessary and proper for 

5 the carrying into execution of these powers. 

6 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 

7 BASIS OF RACE OR SEX. 

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

9 States Code, is amended by adding at the end the fol10 lowing: 

11 ‘‘§ 249. Discrimination against the unborn on the 

12 basis of race or sex 

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

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

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

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

17 child; 

18 ‘‘(2) uses force or the threat of force to inten19 tionally injure or intimidate any person for the pur20 pose of coercing a sex-selection or race-selection 

21 abortion; or 

22 ‘‘(3) solicits or accepts funds for the purpose of 

23 financing a sex-selection abortion or a race-selection 

24 abortion; 


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1 or attempts to do so, shall be fined under this title or im2 prisoned not more than 5 years, or both. 

3 ‘‘(b) CIVIL REMEDIES.— 

4 ‘‘(1) INJUNCTIVE RELIEF.—The Attorney Gen5 eral may in a civil action obtain appropriate prospec6 tive injunctive relief to enjoin a violation of sub7 section (a). 

8 ‘‘(2) LOSS OF FEDERAL FUNDING.—A violation 

9 of subsection (a) shall be deemed for the purposes 

10 of title VI of the Civil Rights Act of 1964 to be dis11 crimination prohibited by section 601 of that Act. 

12 ‘‘(3) PRIVATE CAUSE OF ACTION.—The father, 

13 if married to the mother at the time she receives a 

14 sex-selection abortion or a race-selection abortion, 

15 or, if the mother has not attained the age of 18 

16 years at the time of the abortion, the maternal 

17 grandparents of the unborn, may on behalf of the 

18 unborn in a civil action obtain appropriate relief 

19 with respect to a violation of subsection (a). The 

20 court may award a reasonable attorney’s fee as part 

21 of the costs in an action under this paragraph. Ap22 propriate relief includes money damages for all inju23 ries (whether psychological, physical, or financial, in24 cluding loss of companionship and support) occa25 sioned by the violation. 


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1 ‘‘(c) REPORTING REQUIREMENT.—A physician, phy2 sician’s assistant, nurse, counselor, or other medical or 

3 mental health professional shall report known or suspected 

4 violations of any of this section to appropriate law enforce5 ment authorities. Whoever violates this requirement shall 

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

7 year, or both. 

8 ‘‘(d) EXPEDITED CONSIDERATION.—It shall be the 

9 duty of the United States district courts, United States 

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

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

12 greatest possible extent the disposition of any matter 

13 brought under this section. 

14 ‘‘(e) EXCEPTION.—A woman upon whom a sex-selec15 tion or race-selection abortion is performed may not be 

16 prosecuted or held civilly liable for any violation of this 

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

18 ‘‘(f) DEFINITION.—The term ‘abortion’ means the 

19 act of using or prescribing any instrument, medicine, 

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

21 intent to terminate the clinically diagnosable pregnancy of 

22 a woman, with knowledge that the termination by those 

23 means will with reasonable likelihood cause the death of 

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

25 to— 


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

2 unborn child; 

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

4 spontaneous abortion; or 

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

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

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

8 Code, is amended by adding after the item relating to sec9 tion 248 the following new item: 

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

10 SEC. 4. SEVERABILITY. 

11 If any portion of this Act or the application thereof 

12 to any person or circumstance is held invalid, such inva13 lidity shall not affect the portions or applications of this 

14 Act which can be given effect without the invalid portion 

15 or application. 

Æ 


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