II 

113TH CONGRESS 

1ST SESSION S. 138 

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 24 (legislative day, JANUARY 3), 2013 

Mr. VITTER (for himself, Mr. COATS, Mr. BOOZMAN, Mr. RISCH, Mr. ENZI, 

Mr. COBURN, Mr. CHAMBLISS, and Mr. JOHANNS) 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 or gender, 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 ‘‘Prenatal Non5 discrimination Act (PRENDA) of 2013’’. 

6 SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY. 

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

8 findings: 


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1 (1) Women are a vital part of American society 

2 and culture and possess the same fundamental 

3 human rights and civil rights as men. 

4 (2) United States law prohibits the dissimilar 

5 treatment of males and females who are similarly 

6 situated and prohibits sex discrimination in various 

7 contexts, including the provision of employment, 

8 education, housing, health insurance coverage, and 

9 athletics. 

10 (3) Sex is an immutable characteristic ascer11 tainable at the earliest stages of human development 

12 through existing medical technology and procedures 

13 commonly in use, including maternal-fetal blood14 stream DNA sampling, amniocentesis, chorionic 

15 villus sampling or ‘‘CVS’’, and obstetric ultrasound. 

16 In addition to medically assisted sex determination, 

17 a growing sex determination niche industry has de18 veloped and is marketing low-cost commercial prod19 ucts, widely advertised and available, that aid in the 

20 sex determination of an unborn child without the aid 

21 of medical professionals. Experts have demonstrated 

22 that the sex-selection industry is on the rise and pre23 dict that it will continue to be a growing trend in 

24 the United States. Sex determination is always a 


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1 necessary step to the procurement of a sex-selection 

2 abortion. 

3 (4) A ‘‘sex-selection abortion’’ is an abortion 

4 undertaken for purposes of eliminating an unborn 

5 child based on the sex or gender of the child. Sex6 selection abortion is barbaric, and described by 

7 scholars and civil rights advocates as an act of sex8 based or gender-based violence, predicated on sex 

9 discrimination. Sex-selection abortions are typically 

10 late-term abortions performed in the 2nd or 3rd tri11 mester of pregnancy, after the unborn child has de12 veloped sufficiently to feel pain. Substantial medical 

13 evidence proves that an unborn child can experience 

14 pain at 20 weeks after conception, and perhaps sub15 stantially earlier. By definition, sex-selection abor16 tions do not implicate the health of the mother of 

17 the unborn, but instead are elective procedures moti18 vated by sex or gender bias. 

19 (5) The targeted victims of sex-selection abor20 tions performed in the United States and worldwide 

21 are overwhelmingly female. The selective abortion of 

22 females is female infanticide, the intentional killing 

23 of unborn females, due to the preference for male 

24 offspring or ‘‘son preference’’. Son preference is re25 inforced by the low value associated, by some segVerDate Mar 15 2010 01:22 Feb 06, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S138.IS S138

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1 ments of the world community, with female off2 spring. Those segments tend to regard female off3 spring as financial burdens to a family over their 

4 lifetime due to their perceived inability to earn or 

5 provide financially for the family unit as can a male. 

6 In addition, due to social and legal convention, fe7 male offspring are less likely to carry on the family 

8 name. ‘‘Son preference’’ is one of the most evident 

9 manifestations of sex or gender discrimination in 

10 any society, undermining female equality, and fuel11 ing the elimination of females’ right to exist in in12 stances of sex-selection abortion. 

13 (6) Sex-selection abortions are not expressly 

14 prohibited by United States law or the laws of 47 

15 States. Sex-selection abortions are performed in the 

16 United States. In a March 2008 report published in 

17 the Proceedings of the National Academy of 

18 Sciences, Columbia University economists Douglas 

19 Almond and Lena Edlund examined the sex ratio of 

20 United States-born children and found ‘‘evidence of 

21 sex selection, most likely at the prenatal stage’’. The 

22 data revealed obvious ‘‘son preference’’ in the form 

23 of unnatural sex-ratio imbalances within certain seg24 ments of the United States population, primarily 

25 those segments tracing their ethnic or cultural oriVerDate Mar 15 2010 01:22 Feb 06, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S138.IS S138

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1 gins to countries where sex-selection abortion is 

2 prevalent. The evidence strongly suggests that some 

3 Americans are exercising sex-selection abortion prac4 tices within the United States consistent with dis5 criminatory practices common to their country of or6 igin, or the country to which they trace their ances7 try. While sex-selection abortions are more common 

8 outside the United States, the evidence reveals that 

9 female feticide is also occurring in the United 

10 States. 

11 (7) The American public supports a prohibition 

12 of sex-selection abortion. In a March 2006 Zogby 

13 International poll, 86 percent of Americans agreed 

14 that sex-selection abortion should be illegal, yet only 

15 3 States proscribe sex-selection abortion. 

16 (8) Despite the failure of the United States to 

17 proscribe sex-selection abortion, the United States 

18 Congress has expressed repeatedly, through Con19 gressional resolution, strong condemnation of poli20 cies promoting sex-selection abortion in the ‘‘Com21 munist Government of China’’. Likewise, at the 

22 2007 United Nation’s Annual Meeting of the Com23 mission on the Status of Women, 51st Session, the 

24 United States delegation spearheaded a resolution 

25 calling on countries to condemn sex-selective aborVerDate Mar 15 2010 01:22 Feb 06, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S138.IS S138

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1 tion, a policy directly contradictory to the permis2 siveness of current United States law, which places 

3 no restriction on the practice of sex-selection abor4 tion. The United Nations Commission on the Status 

5 of Women has urged governments of all nations ‘‘to 

6 take necessary measures to prevent . . . prenatal 

7 sex selection’’. 

8 (9) A 1990 report by Harvard University econ9 omist Amartya Sen, estimated that more than 100 

10 million women were ‘‘demographically missing’’ from 

11 the world as early as 1990 due to sexist practices, 

12 including sex-selection abortion. Many experts be13 lieve sex-selection abortion is the primary cause. 

14 Current estimates of women missing from the world 

15 range in the hundreds of millions. 

16 (10) Countries with longstanding experience 

17 with sex-selection abortion—such as the Republic of 

18 India, the United Kingdom, and the People’s Repub19 lic of China—have enacted restrictions on sex-selec20 tion, and have steadily continued to strengthen pro21 hibitions and penalties. The United States, by con22 trast, has no law in place to restrict sex-selection 

23 abortion, establishing the United States as affording 

24 less protection from sex-based feticide than the Re25 public of India or the People’s Republic of China, 


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1 whose recent practices of sex-selection abortion were 

2 vehemently and repeatedly condemned by United 

3 States congressional resolutions and by the United 

4 States Ambassador to the Commission on the Status 

5 of Women. Public statements from within the med6 ical community reveal that citizens of other countries 

7 come to the United States for sex-selection proce8 dures that would be criminal in their country of ori9 gin. Because the United States permits abortion on 

10 the basis of sex, the United States may effectively 

11 function as a ‘‘safe haven’’ for those who seek to 

12 have American physicians do what would otherwise 

13 be criminal in their home countries—a sex-selection 

14 abortion, most likely late-term. 

15 (11) The American medical community opposes 

16 sex-selection. The American Congress of Obstetri17 cians and Gynecologists, commonly known as 

18 ‘‘ACOG’’, stated in its 2007 Ethics Committee Opin19 ion, Number 360, that sex-selection is inappropriate 

20 because it ‘‘ultimately supports sexist practices’’. 

21 The American Society of Reproductive Medicine 

22 (commonly known as ‘‘ASRM’’) 2004 Ethics Com23 mittee Opinion on sex-selection notes that central to 

24 the controversy of sex-selection is the potential for 

25 ‘‘inherent gender discrimination’’, . . . the ‘‘risk of 


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1 psychological harm to sex-selected offspring (i.e., by 

2 placing on them expectations that are too high)’’, 

3 . . . and ‘‘reinforcement of gender bias in society as 

4 a whole’’. Embryo sex-selection, ASRM notes, re5 mains ‘‘vulnerable to the judgment that no matter 

6 what its basis, [the method] identifies gender as a 

7 reason to value one person over another, and it sup8 ports socially constructed stereotypes of what gender 

9 means’’. In doing so, it not only ‘‘reinforces possi10 bilities of unfair discrimination, but may trivialize 

11 human reproduction by making it depend on the se12 lection of nonessential features of offspring’’. The 

13 ASRM ethics opinion continues, ‘‘ongoing problems 

14 with the status of women in the United States make 

15 it necessary to take account of concerns for the im16 pact of sex-selection on goals of gender equality’’. 

17 The American Association of Pro-Life Obstetricians 

18 and Gynecologists, an organization with hundreds of 

19 members—many of whom are former abortionists— 

20 makes the following declaration: ‘‘Sex selection abor21 tions are more graphic examples of the damage that 

22 abortion inflicts on women. In addition to increasing 

23 premature labor in subsequent pregnancies, increas24 ing suicide and major depression, and increasing the 

25 risk of breast cancer in teens who abort their first 


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1 pregnancy and delay childbearing, sex selection abor2 tions are often targeted at fetuses simply because 

3 the fetus is female. As physicians who care for both 

4 the mother and her unborn child, the American As5 sociation of Pro-Life Obstetricians and Gynecologists 

6 vigorously opposes aborting fetuses because of their 

7 gender.’’. The President’s Council on Bioethics pub8 lished a Working Paper stating the council’s belief 

9 that society’s respect for reproductive freedom does 

10 not prohibit the regulation or prohibition of ‘‘sex 

11 control’’, defined as the use of various medical tech12 nologies to choose the sex of one’s child. The publi13 cation expresses concern that ‘‘sex control might 

14 lead to . . . dehumanization and a new eugenics’’. 

15 (12) Sex-selection abortion results in an un16 natural sex-ratio imbalance. An unnatural sex-ratio 

17 imbalance is undesirable, due to the inability of the 

18 numerically predominant sex to find mates. Experts 

19 worldwide document that a significant sex-ratio im20 balance in which males numerically predominate can 

21 be a cause of increased violence and militancy within 

22 a society. Likewise, an unnatural sex-ratio imbalance 

23 gives rise to the commoditization of humans in the 

24 form of human trafficking, and a consequent in25 crease in kidnapping and other violent crime. 


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1 (13) Sex-selection abortions have the effect of 

2 diminishing the representation of women in the 

3 American population, and therefore, the American 

4 electorate. 

5 (14) Sex-selection abortion reinforces sex dis6 crimination and has no place in a civilized society. 

7 (15) The history of the United States includes 

8 examples of sex discrimination. The people of the 

9 United States ultimately responded in the strongest 

10 possible legal terms by enacting a constitutional 

11 amendment correcting elements of such discrimina12 tion. Women, once subjected to sex discrimination 

13 that denied them the right to vote, now have suf14 frage guaranteed by the 19th amendment. The 

15 elimination of discriminatory practices has been and 

16 is among the highest priorities and greatest achieve17 ments of American history. 

18 (16) Implicitly approving the discriminatory 

19 practice of sex-selection abortion by choosing not to 

20 prohibit them will reinforce these inherently dis21 criminatory practices, and evidence a failure to pro22 tect a segment of certain unborn Americans because 

23 those unborn are of a sex that is disfavored. Sex-se24 lection abortions trivialize the value of the unborn on 

25 the basis of sex, reinforcing sex discrimination, and 


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1 coarsening society to the humanity of all vulnerable 

2 and innocent human life, making it increasingly dif3 ficult to protect such life. Thus, Congress has a 

4 compelling interest in acting—indeed it must act— 

5 to prohibit sex-selection abortion. 

6 (b) CONSTITUTIONAL AUTHORITY.—In accordance 

7 with the above findings, Congress enacts the following 

8 pursuant to Congress’ power under— 

9 (1) the Commerce Clause; 

10 (2) section 5 of the 14th amendment, including 

11 the power to enforce the prohibition on Government 

12 action denying equal protection of the laws; and 

13 (3) section 8 of article I to make all laws nec14 essary and proper for the carrying into execution of 

15 powers vested by the Constitution in the Govern16 ment of the United States. 

17 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 

18 BASIS OF SEX. 

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

20 States Code, is amended by adding at the end the fol21 lowing: 

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

23 basis of sex 

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


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

2 abortion is sought based on the sex or gender of the 

3 child; 

4 ‘‘(2) uses force or the threat of force to inten5 tionally injure or intimidate any person for the pur6 pose of coercing a sex-selection abortion; 

7 ‘‘(3) solicits or accepts funds for the perform8 ance of a sex-selection abortion; or 

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

10 or across a State line for the purpose of obtaining 

11 a sex-selection abortion; 

12 or attempts to do so, shall be fined under this title or im13 prisoned not more than 5 years, or both. 

14 ‘‘(b) CIVIL REMEDIES.— 

15 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM ABOR16 TION IS PERFORMED.—A woman upon whom an 

17 abortion has been performed pursuant to a violation 

18 of subsection (a)(2) may in a civil action against any 

19 person who engaged in a violation of subsection (a) 

20 obtain appropriate relief. 

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

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

23 performed or attempted in violation of subsection 

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

25 if the pregnant woman is an unemancipated minor, 


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1 may in a civil action against any person who en2 gaged in the violation, obtain appropriate relief, un3 less the pregnancy resulted from the plaintiff’s 

4 criminal conduct or the plaintiff consented to the 

5 abortion. 

6 ‘‘(3) APPROPRIATE RELIEF.—Appropriate relief 

7 in a civil action under this subsection includes— 

8 ‘‘(A) objectively verifiable money damages 

9 for all injuries, psychological and physical, in10 cluding loss of companionship and support, oc11 casioned by the violation of this section; and 

12 ‘‘(B) punitive damages. 

13 ‘‘(4) INJUNCTIVE RELIEF.— 

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

15 may in a civil action obtain injunctive relief to 

16 prevent an abortion provider from performing 

17 or attempting further abortions in violation of 

18 this section. 

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

20 term ‘qualified plaintiff’ means— 

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

22 is performed or attempted in violation of 

23 this section; 


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

2 parent of a woman upon whom an abortion 

3 is performed in violation of this section; or 

4 ‘‘(iii) the Attorney General. 

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

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

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

12 prohibited by section 601 of that Act. 

13 ‘‘(d) REPORTING REQUIREMENT.—A physician, phy14 sician’s assistant, nurse, counselor, or other medical or 

15 mental health professional shall report known or suspected 

16 violations of any of this section to appropriate law enforce17 ment authorities. Whoever violates this requirement shall 

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

19 year, or both. 

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

21 duty of the United States district courts, United States 

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

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

24 greatest possible extent the disposition of any matter 

25 brought under this section. 


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1 ‘‘(f) EXCEPTION.—A woman upon whom a sex-selec2 tion abortion is performed may not be prosecuted or held 

3 civilly liable for any violation of this section, or for a con4 spiracy to violate this section. 

5 ‘‘(g) PROTECTION OF PRIVACY IN COURT PRO6 CEEDINGS.— 

7 ‘‘(1) IN GENERAL.—Except to the extent the 

8 Constitution or other similarly compelling reason re9 quires, in every civil or criminal action under this 

10 section, the court shall make such orders as are nec11 essary to protect the anonymity of any woman upon 

12 whom an abortion has been performed or attempted 

13 if she does not give her written consent to such dis14 closure. Such orders may be made upon motion, but 

15 shall be made sua sponte if not otherwise sought by 

16 a party. 

17 ‘‘(2) ORDERS TO PARTIES, WITNESSES, AND

18 COUNSEL.—The court shall issue appropriate orders 

19 under paragraph (1) to the parties, witnesses, and 

20 counsel and shall direct the sealing of the record and 

21 exclusion of individuals from courtrooms or hearing 

22 rooms to the extent necessary to safeguard her iden23 tity from public disclosure. Each such order shall be 

24 accompanied by specific written findings explaining 

25 why the anonymity of the woman must be preserved 


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1 from public disclosure, why the order is essential to 

2 that end, how the order is narrowly tailored to serve 

3 that interest, and why no reasonable less restrictive 

4 alternative exists. 

5 ‘‘(3) PSEUDONYM REQUIRED.—In the absence 

6 of written consent of the woman upon whom an 

7 abortion has been performed or attempted, any 

8 party, other than a public official, who brings an ac9 tion under this section shall do so under a pseu10 donym. 

11 ‘‘(4) LIMITATION.—This subsection shall not be 

12 construed to conceal the identity of the plaintiff or 

13 of witnesses from the defendant or from attorneys 

14 for the defendant. 

15 ‘‘(h) DEFINITIONS.— 

16 ‘‘(1) The term ‘abortion’ means the act of using 

17 or prescribing any instrument, medicine, drug, or 

18 any other substance, device, or means with the in19 tent to terminate the clinically diagnosable preg20 nancy of a woman, with knowledge that the termi21 nation by those means will with reasonable likelihood 

22 cause the death of the unborn child, unless the act 

23 is done with the intent to— 

24 ‘‘(A) save the life or preserve the health of 

25 the unborn child; 


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1 ‘‘(B) remove a dead unborn child caused 

2 by spontaneous abortion; or 

3 ‘‘(C) remove an ectopic pregnancy. 

4 ‘‘(2) The term ‘sex-selection abortion’ is an 

5 abortion undertaken for purposes of eliminating an 

6 unborn child based on the sex or gender of the 

7 child.’’. 

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 sec11 tion 249 the following new item: 

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

12 SEC. 4. SEVERABILITY. 

13 If any portion of this Act or the application thereof 

14 to any person or circumstance is held invalid, such inva15 lidity shall not affect the portions or applications of this 

16 Act which can be given effect without the invalid portion 

17 or application. 

18 SEC. 5. RULE OF CONSTRUCTION. 

19 Nothing in this Act shall be construed to require that 

20 a healthcare provider has an affirmative duty to inquire 

21 as to the motivation for the abortion, absent the 

22 healthcare provider having knowledge or information that 

23 the abortion is being sought based on the sex or gender 

24 of the child. 

Æ 


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