2022 State Legislative Sessions: An Overview on Prenatal Nondiscrimination Acts

Modern scientific developments that can detect genetic characteristics and diagnose many disabilities in the womb have increased the potential for discriminatory abortions. To prevent such injustices, many state legislators have introduced Prenatal Nondiscrimination Acts (PRENDAs). Such legislation prohibits anyone from knowingly performing an abortion sought on the basis of an inherent characteristic (such as race or sex) or a prenatal diagnosis (such as a genetic or chromosomal abnormality, e.g., Down syndrome) of the unborn child. PRENDAs are a commonsense means of promoting a culture in which all human life is valued.

Unborn children who receive a prenatal diagnosis are the most common victims of discriminatory abortions. An international study found that 63 percent of babies prenatally diagnosed with spina bifida and 83 percent of babies prenatally diagnosed with anencephaly are aborted. Another study revealed that an estimated 67 percent of women in the United States who receive a prenatal diagnosis of Down syndrome choose abortion.

Strong PRENDAs include the following provisions:

Prohibit abortions sought on the basis of sex, race, national origin, or diagnosis of disability.
Provide a penalty for noncompliance.
Indemnify the mother (i.e., absolve her of legal liability).
Create a civil cause of action.

Seventeen states currently have PRENDAs in some form. Much like other pro-life bills, support for PRENDAs has been gaining momentum in recent years. The past four years have seen more of these bills enacted (seven) than in all the preceding years combined. This year, legislators in five different states (Arizona, Vermont, Virginia, West Virginia, and Wyoming) introduced PRENDAs.

Vermont H. 576, the Prenatal Nondiscrimination Act of 2022, was the strongest bill introduced this year. It included each of the key provisions listed above, prohibiting abortions sought on the basis of the unborn child’s sex or prenatal diagnosis of Down syndrome or a genetic abnormality. It imposed criminal and professional penalties for noncompliance, indemnified the mother, and provided a cause of action for a person harmed by a violation. Unfortunately, this bill failed to gain traction.
West Virginia S.B. 468, the Unborn Child with Down Syndrome Protection and Education Act, was the only PRENDA enacted this year. A strong bill, it prohibits an abortion sought on the basis of a prenatal diagnosis; imposes civil, criminal, and professional penalties for noncompliance; and indemnifies the mother. Additionally, the bill directs the Bureau for Public Health to make certain information about children with disabilities available on its website, including expected physical, developmental, educational, and psychosocial outcomes and treatment options. Governor Jim Justice signed this bill into law on World Down Syndrome Day and tweeted that it gives “deserved respect to our Down Syndrome community.”

Race, sex, or a prenatal diagnosis should never be a death sentence for an unborn child. The United States has a storied civil rights tradition of eliminating discrimination on the basis of race, sex, and disability. Federal and state laws prohibit discrimination on these bases in various contexts, including employment, education, housing, health insurance coverage, and athletics. PRENDAs continue this civil rights legacy by prohibiting abortions motivated by bias against an unborn child’s inherent characteristics or prenatal diagnosis. As Justice Clarence Thomas wrote in a concurring opinion in the 2019 case Box v. Planned Parenthood of Indiana and Kentucky, “the early 20th-century birth-control movement….developed alongside the American eugenics movement…. Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.” (See FRC’s issue analysis on PRENDAs for more information about eugenics and the abortion industry.)

Anyone who prides themselves in furthering inclusivity and standing up for the marginalized should support PRENDAs. Their continued movement in state legislatures is needed to draw attention to abortion’s capacity for discrimination