II 

115TH CONGRESS 

2D SESSION S. 2326 

To prohibit discrimination against the unborn on the basis of sex, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 19, 2018 

Mr. KENNEDY 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. 

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 of 2018’’ or ‘‘PRENDA’’. 

6 SEC. 2. FINDINGS AND CONSTITUTIONAL AUTHORITY. 

7 (a) FINDINGS.—Congress finds the following: 

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

9 and culture and possess the same fundamental 

10 human rights and civil rights as men. 


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1 (2) United States law prohibits the dissimilar 

2 treatment of males and females who are similarly 

3 situated and prohibits sex discrimination in various 

4 contexts, including the provision of employment, 

5 education, housing, health insurance coverage, and 

6 athletics. 

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

8 undertaken for purposes of eliminating an unborn 

9 child of an undesired sex. Sex-selection abortion is 

10 described by scholars and civil rights advocates as 

11 an act of sex-based or gender-based violence, predi12 cated on sex discrimination. By definition, sex-selec13 tion abortions do not implicate the health of the 

14 mother of the unborn, but instead are elective proce15 dures motivated by sex or gender bias. 

16 (4) The targeted victims of sex-selection abor17 tions performed in the United States and worldwide 

18 are overwhelmingly female. 

19 (5) Sex-selection abortions are not expressly 

20 prohibited by United States law, and only 7 States 

21 ban abortions for reason of sex selection at some 

22 point in pregnancy. Sex is an immutable char23 acteristic ascertainable at the earliest stages of 

24 human development through existing medical tech25 nology and procedures commonly in use, including 


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1 maternal-fetal bloodstream DNA sampling, amnio2 centesis, chorionic villus sampling or ‘‘CVS’’, and 

3 obstetric ultrasound. 

4 (6) Sex-selection abortions have the effect of di5 minishing the representation of women in the Amer6 ican population, and therefore, the American elec7 torate. 

8 (7) Sex-selection abortion reinforces sex dis9 crimination and has no place in a civilized society. 

10 (8) The history of the United States includes 

11 many examples of sex discrimination. The people of 

12 the United States ultimately responded in the 

13 strongest possible legal terms by enacting a constitu14 tional amendment correcting an element of this dis15 crimination. Women, once subjected to sex discrimi16 nation that denied them the right to vote, now have 

17 suffrage guaranteed by the 19th Amendment. The 

18 elimination of discriminatory practices has been and 

19 is among the highest priorities and greatest achieve20 ments of American history. 

21 (9) Implicitly approving the discriminatory 

22 practices of sex-selection abortion by choosing not to 

23 prohibit them will reinforce sex discrimination, and 

24 coarsen society to the value of females. Thus, ConVerDate Sep 11 2014 22:46 Jan 20, 2018 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2326.IS S2326

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1 gress has a compelling interest in acting—indeed it 

2 must act—to prohibit sex-selection abortion. 

3 (b) CONSTITUTIONAL AUTHORITY.—In accordance 

4 with the above findings, Congress enacts the following 

5 pursuant to Congress’ power under— 

6 (1) the Commerce Clause; 

7 (2) section 5 of the 14th Amendment to the 

8 Constitution of the United States, including the 

9 power to enforce the prohibition on government ac10 tion denying equal protection of the laws; and 

11 (3) section 8 of article I of the Constitution of 

12 the United States to make all laws necessary and 

13 proper for the carrying into execution of powers 

14 vested by the Constitution in the Government of the 

15 United States. 

16 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 

17 BASIS OF SEX. 

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

19 States Code, is amended by adding at the end the fol20 lowing: 

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

22 basis of sex 

23 ‘‘(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 or attempted in viola18 tion of subsection (a)(2) may in a civil action 

19 against any person who engaged in a violation of 

20 subsection (a) 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 or abortion resulted from the 

4 plaintiff’s criminal conduct or the plaintiff consented 

5 to the 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; 

24 ‘‘(ii) a maternal grandparent of the 

25 unborn child if the woman upon whom an 


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1 abortion is performed or attempted in vio2 lation of this section is an unemancipated 

3 minor; 

4 ‘‘(iii) the father of an unborn child 

5 who is the subject of an abortion per6 formed or attempted in violation of sub7 section (a); or 

8 ‘‘(iv) the Attorney General. 

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

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

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

12 under this subsection. 

13 ‘‘(c) BAR TO PROSECUTION.—A woman upon whom 

14 a sex-selection abortion is performed may not be pros15 ecuted or held civilly liable for any violation of this section, 

16 or for a conspiracy to violate this section. 

17 ‘‘(d) LOSS OF FEDERAL FUNDING.—A violation of 

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

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

20 prohibited by section 601 of that Act. 

21 ‘‘(e) REPORTING REQUIREMENT.—A physician, phy22 sician’s assistant, nurse, counselor, or other medical or 

23 mental health professional shall report known or suspected 

24 violations of any of this section to appropriate law enforce25 ment authorities. Whoever violates this requirement shall 


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

2 year, or both. 

3 ‘‘(f) EXPEDITED CONSIDERATION.—It shall be the 

4 duty of the United States district courts, United States 

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

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

7 greatest possible extent the disposition of any matter 

8 brought under this section. 

9 ‘‘(g) PROTECTION OF PRIVACY IN COURT PRO10 CEEDINGS.— 

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

12 Constitution or other similarly compelling reason re13 quires, in every civil or criminal action under this 

14 section, the court shall make such orders as are nec15 essary to protect the anonymity of any woman upon 

16 whom an abortion has been performed or attempted 

17 if she does not give her written consent to such dis18 closure. Such orders may be made upon motion, but 

19 shall be made sua sponte if not otherwise sought by 

20 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 di24 rect the sealing of the record and exclusion of indi25 viduals from courtrooms or hearing rooms to the exVerDate Sep 11 2014 22:46 Jan 20, 2018 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2326.IS S2326

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1 tent necessary to safeguard the identity of the 

2 woman described in paragraph (1) from public dis3 closure. 

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

5 of written consent of the woman upon whom an 

6 abortion has been performed or attempted, any 

7 party, other than a public official, who brings an ac8 tion under this section shall do so under a pseu9 donym. 

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

11 construed to conceal the identity of the plaintiff or 

12 of witnesses from the defendant or from attorneys 

13 for the defendant. 

14 ‘‘(h) DEFINITIONS.—In this section— 

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

16 or prescribing any instrument, medicine, drug, or 

17 any other substance, device, or means with the in18 tent to— 

19 ‘‘(A) kill the unborn child of a woman 

20 known to be pregnant; or 

21 ‘‘(B) terminate the pregnancy of a woman 

22 known to be pregnant, with an intention other 

23 than— 


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1 ‘‘(i) after viability to produce a live 

2 birth and preserve the life and health of 

3 the child born alive; or 

4 ‘‘(ii) to remove a dead unborn child; 

5 and 

6 ‘‘(2) the term ‘sex-selection abortion’ means an 

7 abortion undertaken for purposes of eliminating an 

8 unborn child of an undesired sex.’’. 

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

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

11 Code, is amended by adding after the item relating to sec12 tion 249 the following new item: 

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

13 SEC. 4. SEVERABILITY. 

14 If any portion of this Act, or the amendments made 

15 by this Act, or the application thereof to any person or 

16 circumstance is held invalid, such invalidity shall not af17 fect the portions or applications of this Act which can be 

18 given effect without the invalid portion or application. 

Æ 


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