New Jersey-2012-A2157-Introduced

An Act concerning the performance of certain abortions and supplementing Titles 2A and 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that:

a. Sex is an immutable characteristic, and is ascertainable at the earliest stages of human development through existing medical technology and procedures commonly in use, including, but not limited to, maternal-fetal bloodstream DNA sampling, amniocentesis, chorionic villus sampling, and medical sonography;

b. In addition to medically assisted sex determinations, a growing sex-determination industry has developed and is marketing low-cost commercial products that are widely advertised and available to aid in the determination of the sex of an unborn child, without the aid of medical professionals; experts have demonstrated that the sex-selection industry is on the rise and predict that the growth trend will continue;

c. Sex determination is always a necessary step to the procurement of a sex-selection abortion, which is an abortion undertaken for purposes of eliminating an unborn child of an undesired sex;

d. Sex-selection abortion is barbaric, and described by scholars and civil rights advocates as an act of sex-based violence, predicated on sex discrimination; the targeted victims of sex-selection abortions are overwhelmingly female, and the selective abortion of females has been termed "female infanticide";

e. A preference for male children is one of the most evident manifestations of sex discrimination in any society, undermining female equality and fueling the elimination of a female's right to exist in instances of sex-selection abortion;

f. Sex-selection abortions are not expressly prohibited by federal or State law and are performed in the United States; in a March 2008 report published in the Proceedings of the National Academy of Sciences, two economists from Columbia University examined the sex ratio of children born in the United States and found "evidence of sex selection, most likely at the prenatal stage";

g. Despite the failure of the federal government to proscribe sex-selection abortion, the United States Congress, through congressional resolutions, has repeatedly expressed strong condemnation of policies promoting sex-selection abortion;

h. Likewise, at the 2007 United Nations Annual Meeting of the Commission on the Status of Women, the United States delegation spearheaded a resolution calling for elimination of sex-selection abortion, a policy directly contradictory to the permissiveness of current federal and State law which place no restrictions on the practice of sex-selection abortion;

i. The American Society for Reproductive Medicine has opined that sex-selection for family planning purposes is ethically problematic, inappropriate, and should be discouraged;

j. Sex-selection abortion results in an unnatural sex ratio imbalance, which is undesirable due to the inability of the numerically predominant sex to find mates; and such imbalance gives rise to the commoditization of humans, in the form of human trafficking and a consequent increase in kidnapping and other violent crimes;

k. Similar to sex-selection abortion, race-selection abortion, which is an abortion performed for purposes of eliminating an unborn child because the unborn child or parent is of an undesired race, is barbaric and described by civil rights advocates as an act of race-based violence that is predicated on race discrimination; by definition, neither sex-selection or race-selection abortions implicate the health of the mother but, instead, are elective procedures motivated by sex and race bias, respectively;

l. Both sex-selection and race-selection abortions reinforce discrimination and have no place in a civilized society; State and federal law prohibit the dissimilar treatment of similarly situated men and women and of similarly situated persons of different races, and these prohibitions exist in various contexts, including the provision of employment, education, housing, health insurance coverage, and athletics;

m. Women and minorities possess the same fundamental human and civil rights as men and majority populations;

n. While the history of the United States includes examples of both sex and race discrimination, the United States Constitution was amended to correct elements of such discrimination: women, once subjected to sex discrimination that denied them the right to vote, now have that right guaranteed by the Nineteenth Amendment; and African-Americans, once subjected to race discrimination through slavery and other means that denied them equal protection of the laws, now have that protection guaranteed by the Fourteenth Amendment. The elimination of discriminatory practices has been and is among the highest priorities and greatest achievements of American history;

o. Implicitly approving the discriminatory practices of sex-selection and race-selection abortions by choosing not to prohibit them in this State will reinforce these inherently discriminatory practices, and evidence a failure to protect unborn children of certain segments of the State's population because those unborn children are of a sex or racial makeup that is disfavored by some segments of society; and

p. Sex-selection and race-selection abortions trivialize the value of the unborn on the basis of sex and race, by reinforcing sex and race discrimination and coarsening society to the humanity of all vulnerable and innocent human life, making it increasingly difficult to protect such life; thus, the Legislature has a compelling interest in acting to prohibit sex-selection and race-selection abortions.

2. a. As used in this section:

"Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the life of an unborn child or with the knowledge that the act is reasonably likely to cause the death of an unborn child;

"Race-selection abortion" means an abortion that is knowingly sought based on the race or color of the unborn child, or the race or color of a parent of that unborn child;

"Sex-selection abortion" means an abortion that is knowingly sought based on the sex of the unborn child; and

"Unborn child" means a member of the species Homo sapiens at any stage of development from fertilization through birth.

b. A person who knowingly:

(1) performs a sex-selection or race-selection abortion;

(2) uses force or the threat of force to intentionally injure or intimidate a person for the purpose of coercing a sex-selection or race-selection abortion, or attempts to do so; or

(3) solicits or accepts funds for the purpose of financing a sex-selection or race-selection abortion,

shall be guilty of a crime of the third degree.

c. A physician, physician's assistant, nurse, counselor, mental health professional, or other health care professional shall report a known or suspected violation of this section to appropriate law enforcement authorities. A person who fails to so report is a disorderly person.

3. a. As used in this section:

"Abortion" means abortion as defined in section 2 of P.L. , c. (C. )(pending before the Legislature as this bill);

"Race-selection abortion" means race-selection abortion as defined in section 2 of P.L. , c. (C. )(pending before the Legislature as this bill);

"Sex-selection abortion" means sex-selection abortion as defined in section 2 of P.L. , c. (C. )(pending before the Legislature as this bill); and

"Unborn child" means a member of the species Homo sapiens at any stage of development from fertilization through birth.

b. The Attorney General may, in a civil action, obtain appropriate prospective injunctive relief to enjoin a violation of section 2 of P.L. , c. (C. )(pending before the Legislature as this bill).

c. The father, if married to the mother at the time she receives a sex-selection or race-selection abortion or, if the mother has not attained the age of 18 years at the time of the sex-selection or race-selection abortion, a maternal grandparent of the unborn child, may on behalf of the unborn child bring a civil action to obtain appropriate relief with respect to a violation of section 2 of P.L. , c. (C. )(pending before the Legislature as this bill). The court may award a reasonable attorney's fee as part of the costs in an action under this subsection. Appropriate relief shall include money damages for injuries, whether psychological, physical, or financial, including loss of companionship and support, occasioned by the violation.

4. A woman upon whom a sex-selection or race-selection abortion is performed shall be immune from civil or criminal liability for a violation of, or conspiracy to violate, this act.

5. This act shall take effect immediately.

STATEMENT

This bill makes it a third degree crime to: knowingly perform a sex-selection or race-selection abortion; use force or the threat of force to intentionally injure or intimidate a person for the purpose of coercing a sex-selection or race-selection abortion, or attempt to do so; or solicit or accept funds for the purpose of financing a sex-selection or race-selection abortion. A person convicted of a third degree crime may be sentenced for three to five years imprisonment or fined up to $15,000, or both.

"Sex-selection abortion" is defined in the bill as an abortion that is knowingly sought based on the sex of the unborn child; and "race-selection abortion" is defined as an abortion that is knowingly sought based on the race or color of the unborn child, or the race or color of a parent of that unborn child. "Abortion" is defined as the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the life of an unborn child or with the knowledge that the act is reasonably likely to cause the death of an unborn child.

The bill also provides that a physician, physician's assistant, nurse, counselor, mental health professional, or other health care professional shall report a known or suspected violation of the above provisions to appropriate law enforcement authorities. A person who fails to so report would be a disorderly person, which is punishable by up to six months imprisonment or a fine of up to $1,000, or both.

In addition, the bill provides for civil actions. The Attorney General may obtain appropriate prospective injunctive relief to enjoin a violation. Also, the father, if married to the mother at the time she receives a sex-selection or race-selection abortion or, if the mother has not attained the age of 18 years at the time of the sex-selection or race-selection abortion, a maternal grandparent of the unborn child, may on behalf of the unborn child bring a civil action to obtain appropriate relief with respect to a violation of the bill. Appropriate relief would include money damages for injuries, whether psychological, physical, or financial, including loss of companionship and support, occasioned by the violation. A court may award a reasonable attorney's fee as part of the costs in the action.

Lastly, a woman upon whom a sex-selection or race-selection abortion is performed would be granted immunity from civil or criminal liability for a violation of, or conspiracy to violate, the provisions of the bill.