II 

112TH CONGRESS 

2D SESSION S. 3290 

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 13, 2012 

Mr. VITTER (for himself, Mr. DEMINT, Ms. AYOTTE, Mr. COBURN, Mr. SESSIONS, Mr. LEE, Mr. CORNYN, Mr. RISCH, Mr. JOHNSON of Wisconsin, 

Mr. CHAMBLISS, Mr. ISAKSON, Mr. JOHANNS, Mr. INHOFE, Mrs. 

HUTCHISON, Mr. ROBERTS, Mr. COCHRAN, Mr. HOEVEN, Mr. WICKER, 

Mr. COATS, Mr. ENZI, Mr. GRAHAM, Mr. BOOZMAN, Mr. THUNE, Mr. 

BARRASSO, Mr. CRAPO, and Mr. MCCONNELL) 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 2012’’. 

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 00:05 Jun 14, 2012 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3290.IS S3290

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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 00:05 Jun 14, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3290.IS S3290

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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 00:05 Jun 14, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3290.IS S3290

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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 

3 high),’’ . . . and ‘‘reinforcement of gender bias in 

4 society as a whole.’’ Embryo sex-selection, ASRM 

5 notes, remains ‘‘vulnerable to the judgment that no 

6 matter what its basis, [the method] identifies gender 

7 as a reason to value one person over another, and 

8 it supports socially constructed stereotypes of what 

9 gender means.’’ In doing so, it not only ‘‘reinforces 

10 possibilities of unfair discrimination, but may 

11 trivialize human reproduction by making it depend 

12 on the selection of nonessential features of off13 spring.’’ The ASRM ethics opinion continues, ‘‘ongo14 ing problems with the status of women in the United 

15 States make it necessary to take account of concerns 

16 for the impact of sex-selection on goals of gender 

17 equality.’’ The American Association of Pro-Life Ob18 stetricians and Gynecologists, an organization with 

19 hundreds of members—many of whom are former 

20 abortionists—makes the following declaration: ‘‘Sex 

21 selection abortions are more graphic examples of the 

22 damage that abortion inflicts on women. In addition 

23 to increasing premature labor in subsequent preg24 nancies, increasing suicide and major depression, 

25 and increasing the risk of breast cancer in teens who 


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1 abort their first pregnancy and delay childbearing, 

2 sex selection abortions are often targeted at fetuses 

3 simply because the fetus is female. As physicians 

4 who care for both the mother and her unborn child, 

5 the American Association of Pro-Life Obstetricians 

6 and Gynecologists vigorously opposes aborting 

7 fetuses because of their gender.’’ The President’s 

8 Council on Bioethics published a Working Paper 

9 stating the council’s belief that society’s respect for 

10 reproductive freedom does not prohibit the regula11 tion or prohibition of ‘‘sex control,’’ defined as the 

12 use of various medical technologies to choose the sex 

13 of one’s child. The publication expresses concern 

14 that ‘‘sex control might lead to . . . dehumanization 

15 and a new eugenics.’’ 

16 (12) Sex-selection abortion results in an un17 natural sex-ratio imbalance. An unnatural sex-ratio 

18 imbalance is undesirable, due to the inability of the 

19 numerically predominant sex to find mates. Experts 

20 worldwide document that a significant sex-ratio im21 balance in which males numerically predominate can 

22 be a cause of increased violence and militancy within 

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

24 gives rise to the commoditization of humans in the 


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1 form of human trafficking, and a consequent in2 crease in kidnapping and other violent crime. 

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

4 diminishing the representation of women in the 

5 American population, and therefore, the American 

6 electorate. 

7 (14) Sex-selection abortion reinforces sex dis8 crimination and has no place in a civilized society. 

9 (15) The history of the United States includes 

10 examples of sex discrimination. The people of the 

11 United States ultimately responded in the strongest 

12 possible legal terms by enacting a constitutional 

13 amendment correcting elements of such discrimina14 tion. Women, once subjected to sex discrimination 

15 that denied them the right to vote, now have suf16 frage guaranteed by the 19th amendment. The 

17 elimination of discriminatory practices has been and 

18 is among the highest priorities and greatest achieve19 ments of American history. 

20 (16) Implicitly approving the discriminatory 

21 practice of sex-selection abortion by choosing not to 

22 prohibit them will reinforce these inherently dis23 criminatory practices, and evidence a failure to pro24 tect a segment of certain unborn Americans because 

25 those unborn are of a sex that is disfavored. Sex-seVerDate Mar 15 2010 00:05 Jun 14, 2012 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3290.IS S3290

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1 lection abortions trivialize the value of the unborn on 

2 the basis of sex, reinforcing sex discrimination, and 

3 coarsening society to the humanity of all vulnerable 

4 and innocent human life, making it increasingly dif5 ficult to protect such life. Thus, Congress has a 

6 compelling interest in acting—indeed it must act— 

7 to prohibit sex-selection abortion. 

8 (b) CONSTITUTIONAL AUTHORITY.—In accordance 

9 with the above findings, Congress enacts the following 

10 pursuant to Congress’ power under— 

11 (1) the Commerce Clause; 

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

13 the power to enforce the prohibition on Government 

14 action denying equal protection of the laws; and 

15 (3) section 8 of article I to make all laws nec16 essary and proper for the carrying into execution of 

17 powers vested by the Constitution in the Govern18 ment of the United States. 

19 SEC. 3. DISCRIMINATION AGAINST THE UNBORN ON THE 

20 BASIS OF SEX. 

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

22 States Code, is amended by adding at the end the fol23 lowing: 


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

2 basis of sex 

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

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

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

6 child; 

7 ‘‘(2) uses force or the threat of force to inten8 tionally injure or intimidate any person for the pur9 pose of coercing a sex-selection abortion; 

10 ‘‘(3) solicits or accepts funds for the perform11 ance of a sex-selection abortion; or 

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

13 or across a State line for the purpose of obtaining 

14 a sex-selection abortion; 

15 or attempts to do so, shall be fined under this title or im16 prisoned not more than 5 years, or both. 

17 ‘‘(b) CIVIL REMEDIES.— 

18 ‘‘(1) CIVIL ACTION BY WOMAN ON WHOM ABOR19 TION IS PERFORMED.—A woman upon whom an 

20 abortion has been performed pursuant to a violation 

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

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

23 obtain appropriate relief. 

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

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

26 performed or attempted in violation of subsection 


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

2 if the pregnant woman is an unemancipated minor, 

3 may in a civil action against any person who en4 gaged in the violation, obtain appropriate relief, un5 less the pregnancy resulted from the plaintiff’s 

6 criminal conduct or the plaintiff consented to the 

7 abortion. 

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

9 in a civil action under this subsection includes— 

10 ‘‘(A) objectively verifiable money damages 

11 for all injuries, psychological and physical, in12 cluding loss of companionship and support, oc13 casioned by the violation of this section; and 

14 ‘‘(B) punitive damages. 

15 ‘‘(4) INJUNCTIVE RELIEF.— 

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

17 may in a civil action obtain injunctive relief to 

18 prevent an abortion provider from performing 

19 or attempting further abortions in violation of 

20 this section. 

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

22 term ‘qualified plaintiff’ means— 

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

24 is performed or attempted in violation of 

25 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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