[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]



                      CHILD CUSTODY PROTECTION ACT

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 1755

                               __________

                             JULY 20, 2004

                               __________

                             Serial No. 101

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                  Mindy Barry, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                             JULY 20, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     4

                               WITNESSES

Ms. Joyce Farley, Victim, Dushore, Pennsylvania
  Oral Testimony.................................................     6
  Prepared Statement.............................................     7
Mr. Mark D. Rosen, Associate Professor (with tenure), Chicago-
  Kent College of Law
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Ms. Lois M. Powell, Minister, United Church of Christ, on behalf 
  of the Religious Coalition for Reproductive Choice
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19
Ms. Teresa Stanton Collett, Professor of Law, University of St. 
  Thomas School of Law
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24

                                APPENDIX
               Material Submitted for the Hearing Record

Statement by Professor John C. Harrison submitted by Chairman 
  Chabot.........................................................    51
Advertisements submitted by Chairman Chabot......................    53
Prepared Statement of the Honorable Ileana Ros-Lehtinen, a 
  Representative in Congress From the State of Florida...........    58
Statement submitted by the American Academy of Pediatrics........    59
A letter and testimonies submitted by the Honorable Nadler.......    63

 
                      CHILD CUSTODY PROTECTION ACT

                              ----------                              


                         TUESDAY, JULY 20, 2004

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:53 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot 
(Chair of the Subcommittee) presiding.
    Mr. Chabot. Good afternoon. This is the Subcommittee on the 
Constitution. I am Steve Chabot, the Chairman. Today the House 
Constitution Subcommittee holds a legislative hearing on the 
H.R. 1755, the ``Child Custody Protection Act.''
    The Child Custody Protection Act would make it a Federal 
offense to knowingly transport a minor across a State line with 
the intent that she obtain an abortion in circumvention of a 
State's parental consent of notification law. This Act is a 
regulation of interstate commerce that seeks to protect the 
health and safety of young girls, as well as the rights of 
parents to be involved in the medical decisions of their minor 
daughters, by preventing valid and constitutional State 
parental involvement laws from being circumvented. This Act 
falls well within Congress' constitutional authority to 
regulate the transportation of individuals in interstate 
commerce.
    A total of 44 States have enacted some form of a parental 
involvement statute. Twenty-four of these States currently 
enforce statutes that require the consent or notification of at 
least one parent or court authorization before a minor can 
obtain an abortion. Such laws reflect widespread agreement that 
it is the parents of a pregnant minor who are best suited to 
provide her counsel, guidance and support as she decides 
whether to continue her pregnancy or to undergo an abortion. 
These laws not only help to ensure the health and safety of 
pregnant young girls, but also support fundamental parental 
rights.
    Despite widespread support for parental involvement laws 
and clear public policy considerations justifying them, 
substantial evidence exists that such laws are regularly evaded 
by adults who transport minors to abortion providers in States 
that do not have parental notification or consent laws. The 
Child Custody Protection Act would curb the interstate 
circumvention of these laws, thereby protecting the rights of 
parents and the interests of vulnerable minors. The Act is not 
a Federal parental involvement law. Rather, it ensures that the 
State laws are not evaded through interstate activity. The Act 
does not encroach upon State powers; it reinforces them, 
respecting the rights of the various States to make these 
policy decisions for themselves and ensuring that each State's 
policy aims regarding this issue are not frustrated.
    Protecting State laws relating to parental involvement in 
the abortion decisions of minor girls will lead to improved 
medical care for minors seeking abortions and provide increased 
protection for young girls against sexual exploitation by adult 
men.
    When parents are not involved in the abortion decisions of 
a child, the risks to the child's health significantly 
increase. Parental involvement will ensure that parents have 
the opportunity to provide additional medical history and 
information to abortion providers prior to performance of an 
abortion. The medical, emotional and psychological consequences 
of an abortion are serious and lasting; this is particularly so 
when the patient is immature. An adequate medical and 
psychological case history is important to the physician. 
Parents can provide such information for their daughters as 
well as any pertinent family medical history, refer the 
physician to other sources of medical history, such as family 
physicians, and authorize family physicians to give relevant 
data.
    Only parents are likely to know a young girl's allergies to 
anesthesia and medication or previous bouts with specific 
medical conditions, including depression. A more complete and 
thus more accurate medical history of the patient will enable 
abortion providers to disclose not only medical risks that 
ordinarily accompany abortions but also those risks that may be 
specific to the pregnant minor.
    Parental involvement will also improve medical treatment of 
pregnant minors by ensuring that parents have adequate 
knowledge to recognize and respond to any post-abortion 
complications that may develop. Without the knowledge that 
their daughters have had abortions, parents are incapable of 
ensuring that their children obtain routine postoperative care 
or of providing an adequate medical history to physicians 
called upon to treat any complications that may arise. These 
omissions may allow complications such as infection, 
perforation or depression to continue untreated and may be 
lethal.
    When confused and frightened young girls are assisted in 
and encouraged to circumvent parental notice and consent laws 
by crossing State lines, they are led into what will likely be 
a hasty and potentially ill-advised decision. Often these girls 
are being guided by those who do not share the love and 
affection that most parents have for their children. Teenage 
pregnancies often occur as a result of predatory practices of 
men who are substantially older than the minor, resulting in 
the guidance of the girl across State lines by an individual 
who has a great incentive to avoid criminal liability for his 
conduct. Experience suggests that sexual predators recognize 
the advantage of their victims obtaining an abortion. Not only 
does an abortion eliminate a critical piece of evidence of the 
criminal conduct, it allows the abuse to continue undetected. 
Parental involvement laws ensure that parents have the 
opportunity to protect their daughters from those who would 
victimize them further.
    The physical and psychological risks of abortions to minors 
are great, and laws requiring parental involvement in such 
abortions, subject to judicial bypass procedures, reduce that 
risk. The widespread practice of avoiding such laws through 
interstate commerce may be prevented only through Federal 
legislation. The Child Custody Protection Act, this Act that we 
are considering today, will assist in the enforcement of 
parental involvement laws that meet the relevant constitutional 
criteria. The safety of young girls and the rights of parents 
demand no less.
    I would now yield to the gentleman from New York, Mr. 
Nadler, for 5 minutes for the purpose of making an opening 
statement if he so chooses.
    [The prepared statement of Mr. Chabot follows:]

 Prepared Statement of the Honorable Steve Chabot, a Representative in 
  Congress From the State of Ohio, and Chairman, Subcommittee on the 
                              Constitution

    Good afternoon. Today the House Constitution Subcommittee holds a 
legislative hearing on H.R. 1755, the ``Child Custody Protection Act.''
    The Child Custody Protection Act would make it a federal offense to 
knowingly transport a minor across a state line, with the intent that 
she obtain an abortion, in circumvention of a state's parental consent 
or notification law. The Act is a regulation of interstate commerce 
that seeks to protect the health and safety of young girls, as well as 
the rights of parents to be involved in the medical decisions of their 
minor daughters, by preventing valid and constitutional state parental 
involvement laws from being circumvented. The Act falls well within 
Congress' constitutional authority to regulate the transportation of 
individuals in interstate commerce.
    A total of forty-four states have enacted some form of a parental 
involvement statute. Twenty-four of these states currently enforce 
statutes that require the consent or notification of at least one 
parent or court authorization before a minor can obtain an abortion. 
Such laws reflect widespread agreement that it is the parents of a 
pregnant minor who are best suited to provide her counsel, guidance, 
and support as she decides whether to continue her pregnancy or to 
undergo an abortion. These laws not only help to ensure the health and 
safety of pregnant young girls but also support fundamental parental 
rights.
    Despite widespread support for parental involvement laws and clear 
public policy considerations justifying them, substantial evidence 
exists that such laws are regularly evaded by adults who transport 
minors to abortion providers in states that do not have parental 
notification or consent laws. The Child Custody Protection Act would 
curb the interstate circumvention of these laws, thereby protecting the 
rights of parents and the interests of vulnerable minors. The Act is 
not a federal parental involvement law. Rather, it ensures that these 
state laws are not evaded through interstate activity. The Act does not 
encroach upon state powers; it reinforces them, respecting the rights 
of the various states to make these policy decisions for themselves and 
ensuring that each state's policy aims regarding this issue are not 
frustrated.
    Protecting state laws relating to parental involvement in the 
abortion decisions of minor girls will lead to improved medical care 
for minors seeking abortions and provide increased protection for young 
girls against sexual exploitation by adult men.
    When parents are not involved in the abortion decisions of a child, 
the risks to the child's health significantly increase. Parental 
involvement will ensure that parents have the opportunity to provide 
additional medical history and information to abortion providers prior 
to performance of an abortion. The medical, emotional, and 
psychological consequences of an abortion are serious and lasting; this 
is particularly so when the patient is immature. An adequate medical 
and psychological case history is important to the physician. Parents 
can provide such information for their daughter as well as any 
pertinent family medical history, refer the physician to other sources 
of medical history, such as family physicians, and authorize family 
physicians to give relevant data.
    Only parents are likely to know of a young girl's allergies to 
anesthesia and medication or previous bouts with specific medical 
conditions, including depression. A more complete and thus more 
accurate medical history of the patient will enable abortion providers 
to disclose not only medical risks that ordinarily accompany abortions 
but also those risks that may be specific to the pregnant minor.
    Parental involvement will also improve medical treatment of 
pregnant minors by ensuring that parents have adequate knowledge to 
recognize and respond to any post-abortion complications that may 
develop. Without the knowledge that their daughters have had abortions, 
parents are incapable of ensuring that their children obtain routine 
post-operative care or of providing an adequate medical history to 
physicians called upon to treat any complications that may arise. These 
omissions may allow complications such as infection, perforation, or 
depression to continue untreated and may be lethal.
    When confused and frightened young girls are assisted in and 
encouraged to circumvent parental notice and consent laws by crossing 
state lines, they are led into what will likely be a hasty, and 
potentially ill-advised, decision. Often, these girls are being guided 
by those who do not share the love and affection that most parents have 
for their children. Teenage pregnancies often occur as a result of 
predatory practices of men who are substantially older than the minor, 
resulting in the guidance of the girl across state lines by an 
individual who has a great incentive to avoid criminal liability for 
his conduct. Experience suggests that sexual predators recognize the 
advantage of their victims obtaining an abortion. Not only does an 
abortion eliminate a critical piece of evidence of the criminal 
conduct, it allows the abuse to continue undetected. Parental 
involvement laws ensure that parents have the opportunity to protect 
their daughters from those who would victimize them further.
    The physical and psychological risks of abortions to minors are 
great, and laws requiring parental involvement in such abortions, 
subject to judicial bypass procedures, reduce that risk. The widespread 
practice of avoiding such laws through interstate commerce may be 
prevented only through federal legislation. The Child Custody 
Protection Act will assist in the enforcement of parental involvement 
laws that meet the relevant constitutional criteria. The safety of 
young girls and the rights of parents demand no less.

    Mr. Nadler. Have you ever known me not to so choose?
    Mr. Chabot. Never. [Laughter.]
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I have 
to confess, I'm beginning to feel a bit like Sisyphus, 
condemned to re-visit, re-argue, re-vote and repeat every issue 
demanded by some conservative constituency gathered underneath 
the Republican big tent.
    We are even calling some of the same witnesses. Today it's 
another abortion bill, a bill we've had how many, four times 
previously? Thursday it will be a facially unconstitutional and 
largely symbolic same-sex marriage court stripping bill.
    I want to be a good sport, Mr. Chairman, but I'm beginning 
to feel like I'm being punished for some unknown offense 
against heaven. Were it not for the fact that the consequences 
of this ill-advised and unconstitutional proposal would cost 
lives and destroy families, I would be tempted to throw up my 
hands and walk away, but we cannot do that. The stakes are too 
high. No matter how many times we have to repeat this, I know 
that both you and I and our colleagues on this Committee feel 
too strongly about what is at stake here. The consequences of 
this proposal will be indeed dire. We have debated them often.
    As with most abortion-related legislation, this bill fails 
to take into account the real life problems faced by real 
people. Did the father rape the daughter? Why should that 
rapist be allowed to profit financially from the crime? 
According to this bill, the child's grandmother could go to 
jail and the rapist could sue her, because in the language of 
the bill he had been harmed by her action. Does the minor live 
in a jurisdiction where judges never grant the constitutionally 
mandated judicial bypass as is often the case?
    How about this one? You can take the minor across State 
lines if her life is in danger, but not if there is a danger 
merely to her physical health, much less her mental health. How 
much physical injury should a young woman be forced to endure 
if her parents and local judges up for reelection are 
indifferent? Sterility? Almost dying, but not quite? How life 
threatening must the physical condition be before the court 
will decide if the doctor guessed right?
    Parents want to be involved with their children, especially 
in these very dire situations, and children overwhelmingly 
involve their parents. But real life is messy. This bill will 
only compound the human tragedies of these situations.
    Let me make a couple of practical comments. This bill 
criminalizes transporting a minor across State lines for the 
purpose of getting an abortion. What does ``transport'' mean? 
Well, presumably, if I'm driving the car and she's sitting next 
to me, I'm transporting her. What if, as we cross the State 
line, we switch and she's driving the car? Then she's 
transporting me. So in other words, this bill will only affect 
people who are driving but not people who are sitting next to 
her if she's driving. Does that make a hell of a lot of sense? 
Excuse me. Does that make a heck of a lot of sense?
    I would submit that this bill has not been very thought out 
and cannot be very well thought out because it ultimately does 
not make sense.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. Would the gentleman yield for a 
moment?
    Mr. Nadler. Sure.
    Mr. Chabot. I know the gentleman is tired of taking this 
bill up, and if the gentleman would join me in encouraging our 
colleagues over in the Senate to take up this bill and have a 
vote on the floor, perhaps we could, since we have passed it 
here several times before, perhaps we wouldn't have to take it 
up in the next Congress.
    Mr. Nadler. Reclaiming my time, Mr. Chairman. I'm not that 
tired. [Laughter.]
    Mr. Chabot. Okay, thank you. The gentleman's time is 
expired.
    The panel that we have here this afternoon, we have a very 
distinguished panel. Our first witness is Mrs. Joyce Farley, a 
mother from Pennsylvania who will share with us her own 
experience surrounding her minor daughter's experience in this 
area, and abortion.
    Our second witness is Mark D. Rosen, Associate Professor of 
Law at Chicago-Kent College of Law. Prior to joining the 
Chicago-Kent faculty, Professor Rosen was a Bigelow Fellow and 
lecturer in law at the University of Chicago Law School. From 
1994 to '97, he was an attorney at the law firm of Foley, Hoag, 
Eliot in Boston, where he focused on complex Federal court 
litigation. Professor Rosen teaches constitutional law, State 
and local government law, conflicts of law and contracts.
    Our third witness is the Reverend Lois M. Powell. Reverend 
Powell is the 2004-2005 Chair of the Board of Directors of the 
Religious Coalition for Reproductive Choice. Reverend Powell is 
an ordained minister in the United Church of Christ and team 
leader for the United Church of Christ Human Rights, Justice 
for Women, and Transformation Ministry Team. Prior to becoming 
the team leader in 2000, Reverend Powell was Executive Director 
of the church's Coordinating Center for Women in Church and 
Society. From 1989 to '97, Reverend Powell was Pastor of the 
United Church of Tallahassee.
    Our final witness is Professor Teresa Stanton Collett. From 
1990 to 2003 Professor Collett was a Professor of Law at South 
Texas College of Law, where she taught various legal courses. 
Since 2003 she has served as a Professor of Law at University 
of St. Thomas College of Law, teaching bioethics, property and 
professional responsibility. Professor Collett has also served 
as a visiting professor at Notre Dame Law School, Washington 
University School of Law in St. Louis, Missouri, the University 
of Texas School of Law, the University of Houston Law Center, 
and the University of Oklahoma College of Law. Prior to joining 
South Texas College of Law, Professor Collett was affiliated 
with the law firm of Crowe & Dunlevy in Oklahoma City, 
Oklahoma.
    We welcome all of our witnesses here this afternoon, and it 
is the practice of the Committee to swear in all witnesses 
appearing before it. So if you would all please rise. Raise 
your right hand.
    [Witnesses sworn.]
    Mr. Chabot. Thank you very much. We'll begin with Mrs. 
Farley. I wanted to note some of you have testified before, as 
the Ranking Member mentioned, but we have a 5-minute rule, and 
there is a light system there that will be on the desk in front 
of you. The yellow light will come on when there's 1 minute of 
the 5 minutes left, and then the red light will come on when 
the 5 minutes is up, and we would ask that you try to keep your 
comments within the 5 minutes if at all possible. We will give 
you a little leeway, but not too much.
    Mrs. Farley, you are recognized for 5 minutes.

         TESTIMONY OF JOYCE FARLEY, VICTIM, DUSHORE, PA

    Ms. Farley. Good afternoon, Members of the U.S. House of 
Representatives. My name is Joyce Farley, and I am a resident 
of the State of Pennsylvania.
    Mr. Chabot. Would you pull that mike just a little bit 
closer to you? Thank you. That whole box will move if you want 
to move it.
    Ms. Farley. I have been asked to come before you today to 
explain why I support the Child Custody Protection Act.
    About this time in 1995, my then 12-year-old daughter, 
Crystal, was intoxicated and raped by a 19-year-old male who 
she had met after entering the local high school as a 7th grade 
student. I was aware of this male trying to befriend my 
daughter and had requested that he not call or visit at the 
house. This male had a reputation of seeking out the 7th grade 
females to establish relationships for sex, and unfortunately, 
Crystal had become one of his victims. This male is currently 
in prison for a similar rape conviction.
    Unfortunately, many perpetrators have more than one victim. 
I was at the time and still am a mother working full time away 
from home. Both parents working full time or single-parent 
families are not unusual in our society and why your support of 
the Child Custody Protection Act is so important. People of our 
Nation need to know that our children are a blessing, and that 
we will protect them from harm.
    On August 31st, 1995, I discovered my 13-year-old daughter, 
Crystal, was missing from home. An investigation by the police, 
school officials and myself revealed the possibility that 
Crystal had been transported out of State for an abortion. I 
can't begin to tell you the fear that enveloped me not knowing 
where my daughter was, who she was with, if she was in harm's 
way, and to learn in this manner that my young daughter was 
pregnant.
    By early afternoon Crystal was home safe with me, but so 
much had taken place in that one day. The mother of this 19-
year-old male had taken Crystal for an abortion in the State of 
New York. Apparently, this woman decided this was the best 
solution for the situation caused by her son, with little 
regard for the welfare of my daughter.
    Situations such as this is what the Child Custody Act was 
designed to help prevent. I am a loving, responsible parent, 
whose parenting was interfered with by an adult unknown to me. 
My child was taken for a medical procedure to an unknown 
facility and physician without my permission.
    When Crystal developed complications from this medical 
procedure, this physician was not available. He refused to 
supply necessary medical records to a physician that was 
available to provide Crystal the medical care she needed.
    I ask you to please, in considering the Child Custody 
Protection Act, to put aside your personal opinions on 
abortion. Please just consider the safety of the minor children 
of our Nation whose lives are put at risk when taken out of 
their home State to avoid abortion laws that are designed to 
protect them from harm. Please don't allow harm to our children 
in order to protect abortion or any other medical procedure. 
Please allow loving, careful and responsible parents the 
freedom to provide the care their adolescent daughters need 
without interference from criminals or people who think they 
may be helping, but actually cause more harm than good.
    An abortion is a medical procedure with physical and 
emotional risks. An adolescent who's had an abortion needs the 
care and support of family. Crystal, unfortunately, developed 
both physical and emotional side effects. Some of the effects 
are still present today after 9 years have lapsed.
    In many ways time is a great healer, but as imperfect human 
beings we don't always realize the effect of our actions of how 
deep the physical and emotional scars actually dwell. The Child 
Custody Act will prevent an abortion decision that is based on 
fear of disappointing parents. It may discourage the use of 
abortion to hide criminal activity such as rape and statutory 
rape. For those who think they are just helping, they may 
realize that an abortion is a serious situation, and just 
providing an adolescent a ride for an abortion is not the 
answer.
    I urge you again to help avoid the scarring of America's 
adolescent girls by voting in favor of the Child Custody 
Protection Act.
    Thank you.
    [The prepared statement of Ms. Farley follows:]

                   Prepared Statement of Joyce Farley

    Good afternoon members of the U.S. House of Representatives. My 
name is Joyce Farley and I am a resident of the state of Pennsylvania. 
I have been asked to come before you today to explain why I support the 
``Child Custody Protection Act.''
    Just about this time in 1995, my then 12-year-old daughter Crystal 
was intoxicated and raped by a 19 year old male who she had met after 
entering the local high school as a 7th grade student. I was aware of 
this male trying to befriend my daughter and had requested that he not 
call or visit at the house. This male had a reputation of seeking out 
the 7th grade females to establish relationships for sex and 
unfortunately Crystal had become one of his victims. This male is 
currently in prison for a similar rape conviction. Unfortunately many 
perpetrators have more than one victim. I was at the time and still am 
a mother working full time away from home. Both parents working full 
time or single parent families are not unusual in our society and why 
your support of the ``Child Custody Act'' is so important. People of 
our nation need to know that our children are a blessing and that we 
will protect them from harm. On August 31 1995, I discovered my 13-
year-old daughter Crystal was missing from home. An investigation by 
the police, school officials, and myself revealed the possibility that 
Crystal had been transported out of state for an abortion. I can't 
begin to tell you the fear that enveloped me not knowing where my 
daughter was, who she was with, if she was in harms way, and to learn 
in this manner that my young daughter was pregnant. By early afternoon 
Crystal was home safe with me, but so much had taken place in that one 
day. The mother of this 19-year-old male had taken Crystal for an 
abortion in the state of New York. Apparently this woman decided this 
was the best solution for the situation caused by her son with little 
regard for the welfare of my daughter. Situations such as this is what 
the ``Child Custody Act'' was designed to help prevent. I am a loving 
responsible parent in whose parenting was interfered with by an adult 
unknown to me. My child was taken for a medical procedure to an unknown 
physician and facility without my permission. When Crystal developed 
complications from this medical procedure this physician was not 
available. He refused to supply necessary medical records to a 
physician that was available to provide Crystal the medical care she 
needed. I ask you to please in considering the ``Child Custody 
Protection Act'' to put aside your personal opinions on abortion. 
Please just consider the safety of the minor children of our nation 
who's lives are put at risk when taken out of their home state to avoid 
abortion laws, that are designed to protect them from harm. Please 
don't allow harm to our children in order to protect abortion or any 
other medical procedure. Please allow loving, caring, and responsible 
parents the freedom to provide the care their adolescent daughters need 
without interference from criminals or people who may think they are 
helping, but actually cause more harm than good. An abortion is a 
medical procedure with physical and emotional risks. An adolescent who 
has had an abortion needs the care and support of family. Crystal 
unfortunately developed both physical and emotional side effects. Some 
of the effects are still present today after 8 years have lapsed. In 
many ways time is a great healer but as imperfect human beings we don't 
always realize the effect of our actions or how deep the physical and 
emotional scars actually dwell. The ``Child Custody Act'' will help 
prevent an abortion decision that is based on fear of disappointing 
parents. It may discourage the use of abortion to hide criminal 
activity such as rape and statutory rape. For those who think they are 
``just helping,'' they may realize that an abortion is a serious 
situation and just providing an adolescent a ride for an abortion is 
not the answer. I urge you again to help avoid the scarring of 
America's adolescent girls by voting in favor of the ``Child Custody 
Protection Act.''
    Thank you.

    Mr. Chabot. Thank you, Ms. Farley.
    Professor Rosen, you're recognized for 5 minutes.

TESTIMONY OF MARK D. ROSEN, ASSOCIATE PROFESSOR (WITH TENURE), 
                  CHICAGO-KENT COLLEGE OF LAW

    Mr. Rosen. Thank you very much, Mr. Chairman.
    I've been asked to opine as to whether Congress has the 
authority to enact this piece of legislation. I believe that 
Congress clearly does. It's authorized, in my view, under both 
the Commerce Clause and under the Effects Clause of the Full 
Faith and Credit Clause, and furthermore, there are not 
independent federalism right to travel or extraterritoriality 
limitations on Congress's power. This is just to say Congress, 
in my view, has the power. It's purely a political question 
that's not foreclosed by the Constitution.
    With regard first to the Commerce Clause, the United States 
Supreme Court has upheld the Mann Act, which in some respects 
is very similar to this. It's an Act that barred the 
transportation of persons across State lines. The Court found 
that that power of Congress came from Congress's authority to 
regulate interstate commerce, regulate interstate commerce, and 
that holding would clearly apply here. Since the Mann Act was 
upheld, the United States Supreme Court held in the Morrison 
case that Congress's powers may well be limited with respect to 
matters that are truly local, and the Court there indicated 
that family law matters might be truly local. I don't believe 
that this Act would run afoul of Morrison's limitations, 
however, because this Act has not prescribed a substantive rule 
with regard to family law.
    What it does instead is it determines the extent of one 
State's legislative authority with regard to family law, 
namely, whether when a minor, who comes from a State with a 
parental notification law, is found in a State without a 
parental notification law, which law governs? And it seems to 
me that determining the scope of States' legislative authority 
is not only something that's not truly local, but it's 
something that is quintessentially a Federal function.
    So I don't believe there are Commerce Clause limitations. I 
think Congress has the power under the Commerce Clause.
    Furthermore, in my view, Congress has the power under the 
Full Faith and Credit Clause, and particularly the Effects 
Clause. The Effects Clause gives Congress the power to 
prescribe the effect of State laws, and that's what this law 
does in effect. It says, as I mentioned before, that a minor 
from a State that has parental notification law, who is in a 
State without, is going to be governed by the law of her home 
State. The United States Supreme Court has indicated many times 
in dicta that the Congress has the power under the Effects 
Clause to prescribe the extra-state effects of one State's law, 
and again, that's what's happening here.
    So in my view, Congress has power under either the Commerce 
Clause or the Full Faith and Credit Clause to enact this.
    It has been claimed by some that this legislation would run 
afoul of some extraterritoriality limitations that the States, 
some believe, have. Number one, I believe that the view that 
States have no power to regulate their citizens out--when their 
citizens are outside of their territories is a mistaken one, 
and in fact, scholarly restatements of the law, including the 
model penal code, recognized that States have the power to 
regulate even criminally the activity of their citizens when 
they're in other States.
    Furthermore, even if States did not have that power, 
Congress has the power to extend States' regulatory authority. 
So under the Effects Clause, as I've mentioned, the Court, on 
more than one occasion, has said that Congress has the power to 
regulate the extra-state effects of one State's regulations. So 
there you go.
    Similarly, with regard to the dormant Commerce Clause, 
Congress, in many respects, has the power again to extend 
regulatory authority that States wouldn't have on their own. So 
for instance, ordinarily States cannot discriminate against the 
goods that come from other States, but Congress, when it acts 
pursuant to the Commerce Clause, is able to bypass that and to 
allow States to discriminate against articles that are goods 
from other States.
    So it seems to me that States have the extraterritorial 
authority to regulate their citizens, and even if they didn't, 
Congress clearly has the power to extend that regulatory 
authority, as Congress is doing here.
    It's also been claimed that this Act would run afoul of 
federalism limitations, and I don't believe that's necessarily 
the case. Under certain conceptions of federalism, this Act 
might be inconsistent. However, my own view is that one of the 
great benefits of federalism is that with respect to policies 
that are not foreclosed by the Federal constitutional law or 
Federal statutory law, there can be diversity of approaches 
that States take, and when you have a law that by its nature 
can readily be circumvented through travel, as parental 
notification laws can be, then a Federal statute that helps to 
ensure the efficacy of constitutional policies does not 
undermine federalism, but it helps to enhance the diversity 
across States with regard to policies that they're able to 
pursue.
    I have a few more seconds, but I think I'll stop here. 
Thank you.
    [The prepared statement of Mr. Rosen follows:]

                  Prepared Statement of Mark D. Rosen

    The Subcommittee has asked that I testify concerning Congress' 
power to enact H.R. 1755, the Child Custody Protection Act. I teach and 
write in the fields of constitutional law, choice-of-law, and state and 
local government law. Federalism is one of my principal interests.
    The proposed legislation would make it a federal crime to knowingly 
transport ``a minor across a State line, with the intent that such 
minor obtain an abortion, and thereby in fact abridge[] the right of a 
parent under a law requiring parental involvement in a minor's abortion 
decision, in force in the State where the minor resides . . .'' I 
believe that Congress has authority to enact this law under the 
Commerce Clause and the Full Faith and Credit Clause. In my view, H.R. 
1755 is fully consistent with principles of federalism, and is not 
inconsistent with the right to travel or constitutional limitations 
connected to abortion rights. My testimony should not be construed as 
an argument in favor of the enactment of the Child Custody Protection 
Act. I only hope to establish that Congress is not constitutionally 
foreclosed from enacting such legislation, and that deciding whether to 
enact it accordingly is a political decision.

                         I. THE COMMERCE CLAUSE

    Congress has the power to enact H.R. 1755 under its Commerce Clause 
powers.\1\ H.R. 1755 is a regulation of commerce among the several 
States. ``The transportation of passengers in interstate commerce, it 
has long been settled, is within the regulatory power of Congress, 
under the commerce clause of the Constitution . . .'' \2\ The power to 
regulate the transport of passengers is derived from Congress' powers 
over the ``channels of interstate commerce,'' \3\ and recent Supreme 
Court case law continues to hold that ``Congress may regulate the use 
of the channels of interstate commerce.'' \4\ Because transportation 
itself qualifies as interstate commerce, it is not necessary to 
consider whether H.R. 1755 regulates ``activities having a substantial 
relation to interstate commerce,'' \5\ that is to say, activities that 
themselves are not commerce but that ``substantially affect interstate 
commerce.'' \6\
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    \1\ The analysis that follows in this first section of my testimony 
is in substantial agreement with the testimony of Professor John C. 
Harrison, which was provided to this Subcommittee in respect of H.R. 
1755's predecessor of H.R. 1218. See Statement of John C. Harrison, 
Professor of Law, University of Virginia, H.R. Rep. No. 106-204 (June 
25, 1999).
    \2\ Caminetti v. United States, 242 U.S. 470, 491 (1917).
    \3\ Id.
    \4\ United States v. Lopez, 514 U.S. 549, 558 (1995).
    \5\ Id. at 558-59.
    \6\ Id. It is with respect to this category of regulations that the 
Supreme Court has limited congressional power in successive cases. See 
Lopez, 514 U.S. at 567-68; United States v. Morrison, 529 U.S. 598, 
617-18 (2000).
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    It is well established that Congress can adopt rules concerning 
interstate commerce, such as H.R. 1755, even if Congress is primarily 
motivated by non-economic goals.\7\ The Court recently has warned that 
Congress cannot ``use the Commerce Clause to completely obliterate the 
Constitution's distinction between national and local authority,'' and 
has referred to the ``family law context'' as an area of ``traditional 
state regulation.'' \8\ H.R. 1755 would not run afoul of such commerce 
clause limitations because the proposed legislation supports rather 
than obliterates state and local authority by seeking to counter the 
circumvention of a class of state laws. In relation to the Court's 
concern that Congress not ``completely obliterate the Constitution's 
distinction between national and local authority,'' \9\ it is critical 
that H.R. 1755 operates not by creating a substantive rule regarding 
family law but by sorting out a choice-of-law problem by indicating 
which state's substantive law is to govern under a certain context.\10\ 
Determining the appropriate scope of a state's family law does not 
obliterate the distinction between what is national and local. To the 
contrary, sorting out the scope of states' competing regulatory efforts 
is a perfectly appropriate function for the federal government to serve 
that helps to govern the relationships among states, thereby securing 
the ``horizontal federalism'' component of our federal system. The next 
section more fully elaborates these points concerning the proposed 
legislation's choice-of-law character.
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    \7\ See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 
U.S. 241 (1964) (upholding enactment of Title II of the Civil Rights 
Act under Congress' commerce clause power); see also Caminetti, 242 
U.S. at 491 (it is ``within the regulatory power of Congress, under the 
commerce clause of the Constitution . . . to keep the channels of 
interstate commerce free from immoral and injurious uses . . .'').
    \8\ Morrison, 529 U.S. at 615-18. The Morrison Court discussed 
these limitations with regard to an analysis of congressional power to 
regulate matters that themselves are not commerce but that 
``substantially affect interstate commerce.'' It is possible that these 
limitations would not be applied at all to regulations of interstate 
commerce itself, such as H.R. 1755.
    \9\ Morrison, 529 U.S. at 615.
    \10\ Determining which of two competing states' laws is to apply 
necessarily means that one state's law will be deemed inapplicable, but 
resolving choice-of-law problems is fundamentally different from 
displacing state law with a substantive federal rule. To illustrate, a 
substantive federal rule would govern all scenarios within a given 
state. A choice-of-law rule such as H.R. 1755 does not displace the 
visited state's law, which does not require parental notification, but 
only indicates a class of persons to whom that law may not be applied.
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     II. THE ``EFFECTS CLAUSE'' OF THE FULL FAITH AND CREDIT CLAUSE

    Wholly independent of the Commerce Clause, Congress has the power 
to enact H.R. 1755 under the Effects Clause, which is part of the Full 
Faith and Credit Clause.\11\ A clear understanding of the type of issue 
that H.R. 1755 addresses facilitates recognition why it falls within 
Congress' powers under the Effects Clause. The general question H.R. 
1755 addresses is whether a person Z who resides in State A remains 
subject to a particular State A law when she is in State B. The 
determination of which of several states' law applies to a particular 
person, transaction, or occurrence is made by what is known as 
``choice-of-law'' doctrines. At its core, H.R. 1755 is a federal 
choice-of-law rule. It determines which law governs a minor from a 
parental notification state who is visiting a state without such a 
requirement.
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    \11\ See U.S. Const. Art. IV, Sec. 1.
---------------------------------------------------------------------------
    Under contemporary law, virtually all choice-of-law doctrines are a 
matter of state law. For almost a century, however, it has been 
vigorously argued by many legal scholars that choice-of-law is more 
appropriately a matter of federal law.\12\ This conclusion is sensible 
because choice-of-law regulates the regulatory reach of each state, and 
it is unwise to leave resolution of this question to the states 
themselves; allowing each state to answer the question is akin to 
asking the fox to guard the proverbial henhouse. Quite apart from the 
normative question of whether choice-of-law should be federal law, 
virtually all legal scholars are of the view that Congress has 
authority under the so-called ``Effects Clause'' of the Full Faith and 
Credit Clause to enact choice-of-law rules.\13\ That provision grants 
Congress the power to enact ``general Laws'' that ``prescribe . . . the 
effect'' that one state's laws shall have in other States.\14\ Indeed, 
the Supreme Court on several occasions has observed in dicta that 
Congress has the power to enact choice of law rules under the Effects 
Clause.\15\
---------------------------------------------------------------------------
    \12\ See, e.g., Douglas Laycock, Equal Citizens of Equal and 
Territorial States: The Constitutional Foundations of Choice of Law, 92 
Colum. L. Rev. 249, 301 (1992); Michael Gottesman, Draining the Dismal 
Swamp: The Case for Federal Choice of Law Statutes, 80 Geo. L.J. 1 
(1991); Walter Wheeler Cook, The Powers of Congress under the Full 
Faith and Credit Clause, 28 Yale L. J. 421, 425-26 (1919).
    \13\ See U.S. Const. Art. IV, Sec. 1, cl. 2 and sources cited above 
at footnote 12.
    \14\ The Full Faith and Credit's term ``public Acts'' long has been 
understood to refer to legislation.
    \15\ For example, in Sun Oil v. Wortman, 486 U.S. 717 (1986), the 
Court decided that a forum state that was constitutionally obligated to 
apply non-forum law nonetheless could apply the forum state's statute 
of limitations. The Court rejected the modern view that statute of 
limitations are substantive, which would have led to the conclusion 
that the non-forum's statute-of-limitations had to be applied, and 
instead held that the historical understanding that statute of 
limitations are procedural governed for purposes of the Full Faith and 
Credit Clause. Id. at 728-29. The Court nonetheless went on to state 
that ``[i]f current conditions render it desirable that forum States no 
longer treat a particular issue as procedural for conflict of laws 
purposes . . . it can be proposed that Congress legislate to that 
effect under the second sentence of the Full Faith and Credit Clause.'' 
Id. at 729.
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    Congress is authorized to enact a choice-of-law rule such as H.R. 
1755 under the Effects clause. Dictum in a plurality opinion has stated 
that ``there is at least some question whether Congress may cut back on 
the measure of faith and credit required by a decision of this Court.'' 
\16\ H.R. 1755 is not inconsistent with this dictum \17\ because the 
Supreme Court does not currently interpret the Full Faith and Credit 
Clause as dictating which substantive law one state must apply. 
Contemporary full faith and credit case law permits a state to apply 
its law if there is a ``significant contact . . . creating state 
interests, such that choice of its law is neither arbitrary nor 
fundamentally unfair.'' \18\ The Court's full faith and credit rule 
would permit the minor's state of residence to apply its law to the 
minor's activity in a sister state on account of the state of 
residence's continuing interests in protecting the parent's rights to 
``consult with [their daughter] in private, and to discuss the 
consequences of her decision in the context of the values and moral or 
religious principles of their family.'' \19\ The proposed legislation 
hence does not contradict the case law, but specifies which state's law 
applies in a circumstance where Supreme Court case law has left the 
question unanswered.\20\
---------------------------------------------------------------------------
    \16\ 448 U.S. 261, 272 n. 18 (1980) (plurality). The plurality 
opinion's comments are dictum because the Thomas case did not analyze 
the scope of a congressional enactment under the Effects clause, but 
instead concerned the question of whether one state must give res 
judicata effect to a workmen's compensation claim that had been issued 
by another state's administrative agency. Id. at 286. The plurality 
opinion in Thomas also opined that ``Congress clearly has the power to 
increase the measure of faith and credit that a State must accord to 
the laws or judgments of another State . . .'' Id.
    \17\ This is not to suggest that I believe that Congress would be 
without the authority to do so, but only that H.R. 1755 does not raise 
the difficult question of whether Congress has authority under the 
Effects Clause to specify different full faith and credit rules than 
the Supreme Court has. See infra note 20.
    \18\ Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 819 (1985) 
(internal quotation omitted).
    \19\ Planned Parenthood v. Casey, 505 U.S. 833, 899-900 (1992).
    \20\ The Supreme Court has recognized that its full faith and 
credit test allows more than one state's law to apply to a given 
person, transaction, or occurrence Sun Oil Co. v. Wortman, 486 U.S. 
717, 727 (1988).
---------------------------------------------------------------------------
    I recognize that it could be argued that H.R. 1755 dilutes ``the 
measure of faith and credit required by a decision of this Court,'' 
Thomas, 448 U.S. at 272 n. 18, insofar as it could be argued that the 
visited state could apply its law under the Court's jurisprudence and 
H.R. 1755 in effect says that it cannot. There are two responses to 
this claim. First, case law that permits the application of two or more 
states' laws does not qualify as determining ``the measure of faith and 
credit required by a decision of this Court.'' Id. at 272 n. 18 
(emphasis supplied). Rather, the case law leaves undecided the question 
of what measure of full faith is required of another state's law. 
Second, it is conceptually incoherent to suggest that Congress lacks 
the power under the Effects Clause to ``dilute'' the effect of a 
state's law or judgment because determining that one state's law or 
judgment is to be given effect is to simultaneously decide that a 
sister state's law or judgment is not to be given effect and thereby 
dilutes the effect of that second state's law or judgment. Professor 
(now Judge) Michael McConnell has advanced this argument, see Hearing 
on S. 1740 Before the Senate Comm. on the Judiciary, 104th Cong. 57-58 
(1996), and I believe it to be incontrovertible. If a dilution 
limitation as applied to the Effects Clause truly is incoherent, then 
the plurality's dictum in the Thomas case should be resisted.
    H.R. 1755 does not appear to exceed Congress's powers under the 
Effects Clause in any other respects. Although H.R. 1755 provides a 
choice-of-law rule only with regard to parental notification 
requirements, the Effects Clause's language authorizing the enactment 
of ``general Laws'' has not prevented Congress from enacting subject-
specific legislation in the past under the Effects Clause.\21\ Indeed, 
there are strong reasons to believe that intelligent choice-of-law 
rules must be context-specific rather than trans-substantive, and that 
construing ``general Laws'' so as to disallow Congress from making 
subject-matter sensitive choice of law rules would jeopardize Congress' 
ability to create efficacious choice-of-law rules.\22\ Because Congress 
has passed legislation pursuant to the Effects Clause only a handful of 
times, the Supreme Court has not had the opportunity to significantly 
develop the contours of Congress's Effects Clause powers. Although this 
means that analysis of Congress's powers under the Clause necessarily 
is speculative, such uncertainty is not a reason for Congress to avoid 
relying on the Effects Clause; after all, in view of Article III's 
``case or controversy'' requirements, it is only by invocation of the 
Clause and subsequent judicial challenges that the scope of 
congressional power can ever be worked out. With all this in mind, a 
plausible limitation is that the Effects Clause not be used by Congress 
willy nilly to champion those substantive policies that it favors.\23\ 
A feasible judicial check to ensure that Congress does not abuse its 
Effects Clause powers in this regard is to require that Congress' 
choice-of-law rule be reasonably consistent with general choice-of-law 
principles.\24\ H.R. 1755 readily would pass such a test because the 
conclusion that the law of the minor's residence should govern is 
consistent with contemporary choice-of-law doctrines.\25\ That is to 
say, a congressional determination that the minor should be governed by 
her home state's law is reasonable.
---------------------------------------------------------------------------
    \21\ See Parental Kidnaping Prevent act of 1980, 28 U.S.C. 
Sec. 1738A; Full Faith and Credit for Child Support Orders Act of 1994, 
28 U.S.C. Sec. 1738B; Violence Against Women Act's full faith and 
credit provision, 18 U.S.C. Sec. 2265 (requiring sister States to 
recognize and enforce a valid protection order issued by another 
state).
    \22\ Under all variants of modern interest analysis, choice-of-law 
is not conceptualized as a distinct body of ``procedural'' law but 
instead is largely a function of substantive law. The common ground of 
interest analysis is the effort to ascertain whether each of the 
multiple jurisdictions whose law potentially applies in fact has a 
governmental interest in applying its law to the facts at hand; if only 
one polity has an interest then there is a ``false conflict'' and only 
that jurisdiction's law is to be applied. See David P. Currie, Herma 
Hill Kay, Larry Kramer, Conflict of Laws: Cases, Comments, Questions 
132-33 (West Group 2001). The determination of whether there is a 
``false conflict'' is made by considering the purpose of each state's 
substantive law, and asking whether the legislature would have wished 
to regulate the party, transaction, or occurrence. The process of 
deciding whether there is a false conflict hence involves ascertaining 
the scope of substantive law of each potentially interested 
jurisdiction. If this approach of first eliminating ``false'' conflicts 
indeed is a genuine contribution of modern approaches to conflicts 
analysis, then it would follow that efficacious choice-of-law doctrines 
invariably will be a tied to substantive law. If Congress is to have 
power under the Effects Clause to make efficacious choice-of-law 
doctrines, then the Effects Clause must include the power to tailor 
rules in a manner that is sensitive to the substantive law.
    \23\ The reason for this limitation is as follows. The Full Faith 
and Credit Clause seeks to accomplish the two somewhat mutually 
inconsistent goal of bringing about a federal union of meaningfully 
empowered States. See Baker v. General Motors Corp., 522 U.S. 222 
(1998) (discussing the goal of creating a federal union); Pacific 
Employers Ins. Co. v. Indus. Accident Commission, 306 U.S. 493, 502 
(1939) (noting Full Faith and Credit's protection of each state's 
sovereign interests). Congress appropriately has broad latitude when 
legislating pursuant to the Effects Clause to decide how to harmonize 
these competing policies. There is no indication, however, the Full 
Faith and Credit Clause is an appropriate vehicle for Congress to foist 
its policy preferences upon the States.
    \24\ Such deferential review would be similar to the approach the 
Court once took to reviewing congressional enactments pursuant to 
Section 5 of the Fourteenth Amendment. See Katzenbach v. Morgan, 384 
U.S. 641, 652-57 (1966). Although the Court no longer utilizes such 
deferential review in relation to Congress' Section 5 powers, see City 
of Boerne v. Flores, 521 U.S. 507 (1997), the more explicit grant of 
independent congressional authority under the Effects Clause could well 
lead the Court to utilize more deferential review in analyzing 
legislation enacted pursuant to the Full Faith and Credit Clause.
    \25\ Under classic interest analysis, the choice between the law of 
the minor's residence and the law of the visiting state might be 
characterized as a ``false conflict''--it would be said that the 
visiting state has no interest in regulating non-citizens, whereas the 
state of residence has a strong interest in regulating its citizen's 
conduct--with the result that the home state's parental notification 
law would be applied. Alternatively, the situation might be analyzed as 
a ``true conflict,'' in which case the home state's law still might be 
selected, depending upon the type of interest analysis that were used. 
Under the approach advocated by Brainerd Currie, for instance, the home 
state's law would be selected if the parents sued in a court located in 
their state of residence. Under the Second Restatement of Conflict's 
approach, a court could well conclude that the minor's home state is 
the state with the most significant relationship to the matter and 
hence the state whose law ought to apply. Even under traditional 
approaches, the parental notification law might be construed as a 
family law that accordingly is provided by the state of residence.
---------------------------------------------------------------------------
    The proposed legislation does not simply specify the effect of one 
state's law, but also creates civil and criminal penalties for those 
who transport a minor across a state border for the purpose of evading 
her home state's parental notification law. The question is whether the 
power to ``prescribe . . . the effect'' of the home state's parental 
notification law includes the power to create such civil and criminal 
penalties for those who facilitate the law's circumvention. While we 
are without guidance from the Supreme Court in answering this specific 
question, there are good reasons to believe that the answer is yes. 
Congress has the power to ``make all Laws which shall be necessary and 
proper for carrying into Execution'' the enumerated powers it has been 
granted.\26\ If the ``end be legitimate'' then ``all means which are 
appropriate, which are plainly adapted to that end'' are 
constitutional.\27\ As shown above, the end of specifying the effect of 
the home state's parental notification law is ``legitimate.'' The 
question then becomes whether H.R. 1755's civil and criminal penalties 
are ``appropriate'' and ``plainly adapted to that end.'' The Supreme 
Court has been famously deferential to congressional judgments about 
what means are appropriate to accomplishing legitimate ends,\28\ and it 
seems plausible that measures of the sort found in H.R. 1755 are 
``useful'' \29\ for ensuring that the home state's parental 
notification laws will be given effect when the minor visits other 
states. Given the dynamics of family relations, there are good reasons 
to believe that there would be systematic evasion of parental 
notification laws if parents' only legal recourse were a lawsuit 
against their minor daughters who violated the parents' rights by 
crossing a border to obtain an abortion.
---------------------------------------------------------------------------
    \26\ U.S. Const. Art. I., Sec. 8, cl. 18.
    \27\ See McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 
421 (1819).
    \28\ See, e.g., Jinks v. Richland County, S.C., 123 S.Ct. 1667, 
1671 (2003).
    \29\ McCulloch, 17 U.S. at 413; see also id. at 419.
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III. CRITICAL EXAMINATION OF POSSIBLE CONSTITUTIONAL OBJECTIONS TO H.R. 
                                  1755

A. H.R. 1755 and Extraterritoriality
    Some opponents of H.R. 1755 have argued that the proposed 
legislation would give unconstitutional extraterritorial authority to 
the resident state's law. There are three fatal flaws to any such 
criticism. First, H.R. 1755 can be conceptualized as a federal law 
extension to state law that functions to increase the state law's 
efficacy. So understood, H.R. 1755 does not extend the operation of 
state law extraterritorially, but simply is federal law that operates 
across state borders, as federal law often does.
    Second, the criticism that H.R. 1755 unlawfully extends state laws 
is based on the misconception that one state's regulatory authority 
ends at its borders. An early approach to choice-of-law believed that 
territorial location alone answered the question of what law applies, 
but this has been almost universally rejected in this country.\30\ 
Today, state laws regularly apply to persons, transactions, and 
occurrences that occur outside the state's borders.\31\ Thus scholarly 
restatements of the law and the Model Penal Code both understand that 
states may regulate their citizens out-of-state activities, and may 
even criminalize out-of-state activity that is permissible in the state 
where it occurs.\32\
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    \30\ See Currie, Et. Al., supra note 22, at 2-6.
    \31\ For a comprehensive examination of states' powers to regulate 
their citizens' out-of-state activities, see Mark D. Rosen, 
Extraterritoriality and Political Heterogeneity in American Federalism, 
150 U. Pa. L. Rev. 855 (2002).
    \32\ The Restatement (Third) of Foreign Relations Law provides that 
states ``may apply at least some laws to a person outside [State] 
territory on the basis that he is a citizen, resident or domiciliary of 
the State.'' Restatement (Third) of Foreign Relations Law Sec. 402 
reporters' notes at 5 (1986). The Restatement asserts that this 
principle applies to both extraterritorial criminal and civil 
legislative powers.  See id. at Sec. 403, comment f. The Reporters 
Notes make clear that the Restatement understands that its principles 
apply to the extraterritorial powers enjoyed by states within the 
United States. See id. at Sec. 402 and Reporters' Notes 5.
---------------------------------------------------------------------------
    Directed to the criminal context, the Model Penal Code provides 
that State A may impose liability if ``the offense is based on a 
statute of this state that expressly prohibits conduct outside the 
state.'' Model Penal Code Sec. 1.03(1)(f). The Model Penal Code 
provides that State A has extraterritorial legislative jurisdiction 
even if the activity it prohibits occurs in a State in which the 
activity is permissible. Id. The major limitation identified by the 
Model Penal Code is that the regulated conduct must ``bear[] a 
reasonable relation to a legitimate interest of [the regulating] 
state.'' Id. at Sec. 1.03(2). The Comment states that the ``reasonable 
relation to legitimate interests'' requirement ``expresses the general 
principle of the fourteenth amendment limitation on state legislative 
jurisdiction.'' Id. at Sec. 1.03(1)(f).
    Third, even if states lacked the power to regulate their citizens' 
out-of-state activities under contemporary law, the Effects Clause and 
the Commerce Clause both can serve to extend states' regulatory powers. 
The Effects Clause gives Congress the power to alter the 
extraterritorial effect that one state's public acts, records and 
judicial proceedings have in other states. Thus before Congress enacted 
the Violence Against Women Act's full faith and credit provision, it 
was uncertain whether a protective order issued in State A would have 
effect in State B, whose laws differed from State A such that no 
protective order would be issued on the facts.\33\ The federal act 
provided that State B was required to give effect to State A's 
protective order.\34\ Similarly, while states on their own may not 
enact protectionist legislation that disallows goods from other states 
to cross their borders,\35\ the Commerce Clause allows Congress to 
grant states such powers to discriminate against goods from other 
states.\36\ As a structural matter, a federal government that umpires 
the sister states' regulatory powers vis-a-vis one another is eminently 
sensible, and several constitutional provisions--including the Effects 
Clause and the Commerce Clause--empower Congress to serve this 
function.
---------------------------------------------------------------------------
    \33\ See Emily J. Sack, Domestic Violence Across State Lines: The 
Full Faith and Credit Clause, Congressional Power, and Interstate 
Enforcement of Protection Orders, 98 Nw. U. L. Rev. 827 (2004).
    \34\ See 18 U.S.C. Sec. 2265 (2000).
    \35\ See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617 
(1978).
    \36\ See, e.g., New York v. United States, 505 U.S. 144, 171 (1992) 
(``While the Commerce Clause has long been understood to limit the 
States' ability to discriminate against interstate commerce, that 
limitation may be lifted, as it has been here, by an expression of the 
`unambiguous intent' of Congress.'') (internal citations omitted).
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B. Federalism and the Right to Travel
    Some opponents of H.R. 1755 have argued that the Child Custody 
Prevention Act would be inconsistent with constitutional principles of 
federalism. To the contrary, I believe that H.R. 1755 is consistent 
with a more attractive conception of federalism than these opponents 
implicitly adopt.
    States may have divergent substantive policies with respect to 
those matters that are not violative of the United States Constitution 
or displaced by federal law. Such diversity among states is one of the 
frequently heralded benefits of our federal system. Many 
constitutionally legitimate state laws, however, can be frustrated if 
citizens can free themselves of their home state's legal requirements 
merely by crossing a state border and availing themselves of their 
neighboring state's varying law. This is true of constitutionally 
permissible state laws that are paternalistic or that seek to protect 
third-party interests. By undermining the efficacy of such state laws, 
``travel-evasion'' in effect thwarts the diversity of state laws that 
is theoretically permissible under our federal system.\37\ A law such 
as H.R. 1755 supports diversity across states by ensuring that each 
state can pursue efficacious policies in those realms that are not 
foreclosed by the Constitution or other federal law. It is my view that 
the diversity that federalism can afford is an affirmative good in a 
country as large and diverse as ours.
---------------------------------------------------------------------------
    \37\ See Rosen, supra note 31, at 856-861.
---------------------------------------------------------------------------
    Those who assert federalism challenges to H.R. 1755 are working 
with a different conception of federalism. They evidently are of the 
view that although diversity across states is good, citizens should be 
able to pick and choose the laws that are to govern them by traveling 
to whatever jurisdiction's law they wish to govern them on an issue-by-
issue basis. Indeed, some opponents of H.R. 1755 have argued that H.R. 
1755 interferes with minors' constitutional ``right to travel.'' At 
least one noted scholar has advocated this type of position.\38\
---------------------------------------------------------------------------
    \38\ Seth F. Kreimer, ``But Whoever Treasures Freedom . . .'': The 
Right to Travel and Extraterritorial Abortions, 91 Mich. L. Rev. 907, 
915 (1993).
---------------------------------------------------------------------------
    To begin, the notion that H.R. 1755 is inconsistent with the 
constitutional right to travel is not supportable under the Supreme 
Court's jurisprudence. Neither a state nor the federal government can 
interfere with a citizens' ability to leave a state for the purpose of 
visiting another State or prevent its citizens from returning; either 
would violate ``the right of a citizen of one State to enter and to 
leave another State.'' \39\ H.R. 1755 does not even implicate this 
limitation, for it does not preclude the minor from traveling, and 
indeed explicitly provides that a ``minor transported in violation of 
this section . . . may not be prosecuted or sued for a violation of 
this section.'' \40\ The minor's right to travel to another state is 
wholly unimpeded by H.R. 1755.
---------------------------------------------------------------------------
    \39\ See Saenz v. Roe, 526 U.S. 489, 500 (1999).
    \40\ See Sec. 2431(b)(2).
---------------------------------------------------------------------------
    Even if H.R. 1755's limitation on the transportation of minors were 
deemed to implicate the minor's ability to enter and leave another 
State, it is unlikely that this would be deemed by the Court to violate 
her right to travel. The Court has recognized that the right to 
interstate travel ``may be regulated or controlled by the exercise of a 
State's police power'' and by the federal government as well.\41\ This 
is perfectly consistent with the nature of most constitutional rights, 
which virtually never establish categorical prohibitions on regulation 
but instead heighten the requirements that must be satisfied for 
regulation to be constitutional.\42\ Particularly relevant for present 
purposes, the Court has ruled that other components of the 
constitutional right to travel establish non-categorical rights. For 
instance, what the Court has identified as the ``right to be treated as 
a welcome visitor rather than an unfriendly alien when temporarily 
present in the second State,'' \43\ an aspect of the right to travel 
that the Court has tied to Article IV's Privileges and Immunities 
Clause, does not establish an ``absolute'' right for a visitor to be 
treated as citizens are.\44\ Rather, states are permitted to 
distinguish between residents and nonresidents if ``there is a 
substantial reason for the difference in treatment'' and the ``the 
discrimination practiced against nonresidents bears a substantial 
relationship to the State's objective.'' \45\ If the Court were to 
utilize a similar test to determine whether a regulation impermissibly 
interfered with ``the right of a citizen of one State to enter and to 
leave another State,'' \46\ the questions would be whether Congress has 
a substantial reason to proscribe the out-of-state transport of minors 
for the purpose of circumventing the home state's parental notification 
requirements and whether the imposition of civil and criminal penalties 
for such transportation bears a substantial relationship to Congress' 
objective. I believe that the answer to both questions vis-a-vis H.R. 
1755 would be yes: Congress has a substantial reason to ensure that 
constitutional state policies are not undermined through travel-
evasion, and, given the nature of family dynamics, civil and criminal 
penalties on those who facilitate the transportation of minors bear a 
substantial relationship to achieving Congress' objective.
---------------------------------------------------------------------------
    \41\ United States v. Guest, 86 S. Ct. 1170, 1179 & n. 17 (1965).
    \42\ For example, notwithstanding the First Amendment's categorical 
statement that ``Congress shall make no law . . . abridging the freedom 
of speech,'' Congress is constitutionally permitted to regulate speech, 
even political speech. See, e.g., McConnell v. Federal Election 
Commission, 124 S. Ct. 619, 660-61 (2003); see generally Richard H. 
Pildes, Why Rights are not Trumps: Social Meanings, Expressive Harms, 
and Constitutionalism, 27 J. Legal Stud. 725 (1998).
    \43\ See Saenz, 526 U.S. at 500.
    \44\ See id. at 489-502. This so-called ``second component'' of the 
right to travel would not be implicated by H.R. 1755. This second 
component limits the state that a citizen visits, but not her home 
state. It is an equal protection type principle that limits the extent 
to which the visiting state can treat visitors differently from its own 
citizens, but it in no way affects the home state's power to regulate 
its own citizens when they go out-of-state. See Slaughter-House Cases, 
83 U.S. (16 Wall.) 36, 75-77 (1873) (the Privileges and Immunities 
Clause of Article IV ``does not profess to control the power of the 
State governments over the rights of its own citizens.''); see 
generally Rosen, supra note 31, at 900-903. The third aspect of the 
right to travel--``the right of the newly arrived citizen to the same 
privileges and immunities enjoyed by other citizens of the same 
State,'' Saenz, 119 S.Ct. at 1526--plainly is not implicated by H.R. 
1755.
    \45\ Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 298 (1998) 
(internal quotations omitted).
    \46\ See Saenz, 526 U.S. at 500.
---------------------------------------------------------------------------
    Apart from the claim that H.R. 1755 would violate the right to 
travel refuted above, it still could be claimed that H.R. 1755 is 
inconsistent with federalism. The claim is that federalism allows 
diversity across states, but also requires that citizens be able to 
travel to other states so as to be subject to that other state's laws 
on an issue-by-issue basis. While such a claim is not illogical, it 
reflects, in my view, a less compelling conception of federalism than 
the diversity-supporting system that a law such as H.R. 1755 
promotes.\47\ In any event, my point here is not to vindicate my 
particular view of federalism, but to show that the argument that H.R. 
1755 is flatly antithetical to federalism is groundless. Rather, the 
proposed legislation's relationship to federalism is a function of what 
conception of federalism one holds. The Supreme Court has not answered 
this question. It is my view that answering this question is Congress' 
prerogative, subject to only a highly deferential Supreme Court review.
---------------------------------------------------------------------------
    \47\ ``Pick and choose'' federalism undermines diversity across 
states by systematically disfavoring those state laws that are more 
regulatory of their citizens than are other states' laws. ``Less 
regulatory'' should not be confused with liberty-enhancing. Those 
jurisdictions that wish to regulate more than their neighbor states do 
so because they have differing notions of the public good. Indeed, 
undermining laws that protect the rights of third-parties--as parental 
notification laws are designed to do--undercut those third parties' 
liberty interests. A fair way to decide between these competing 
conceptions of federalism, it seems to me, is to perform a thought 
experiment of the sort famously proposed by John Rawls. If one were 
behind a ``veil of ignorance'' and did not know whether she represented 
a libertarian (who chafed at regulation) or a regulationist who thought 
that regulation frequently was good, what type of federalist system 
would she opt for? It seems obvious to me that the favored federalist 
system would be one that permitted meaningful diversity across states 
with regard to those matters that federal constitutional and statutory 
law did not demand national uniformity. For a more elaborate discussion 
of this, see Rosen, supra note 31, at 882-91.
---------------------------------------------------------------------------
C. Abortion Rights
    Finally, some have argued that H.R. 1755 is inconsistent with the 
limitations on abortion that the Court has located in the Fourteenth 
and Fifth Amendments. The Supreme Court has held that laws regulating 
abortion must provide an exception for the ``preservation of the life 
or health of the mother.'' \48\ H.R. 1755 provides an exception, 
however, only ``if the abortion was necessary to save the life of the 
minor.'' \49\ The bill's absence of an exception for the mother's 
health nonetheless does not violate the Court's requirement because 
H.R. 1755 piggybacks on state parental notification statutes. Assume 
for present purposes that state parental notification statutes must 
provide an exception for the health of the mother to be constitutional. 
If the mother's health is endangered, state law cannot require parental 
notification, and transportation of a minor across state lines \50\ 
consequently would not run afoul of H.R. 1755's prohibition. On the 
other hand, if a state parental notification statute did not include an 
exception for the health of the mother, then it would be 
constitutionally invalid and for that reason could not provide the 
predicate for liability under H.R. 1755. In short, because the state 
law that H.R. 1755 operates in conjunction with state law that already 
must contain a health exception to be valid, H.R. 1755 itself need not 
contain such an exception. The absence of a health exception in H.R. 
1755 does not render it inconsistent with the case law that defines 
rights in relation to abortion because H.R. 1755 in effect incorporates 
state parental notification laws, which must have an exception for the 
health of the mother in order to trigger H.R. 1755's application.
---------------------------------------------------------------------------
    \48\ Stenberg v. Carhart, 120 S. Ct. 2597, 2613 (2000) (emphasis 
supplied).
    \49\ See Sec. 2431(b)(1).
    \50\ Such transportation would not, of course be necessary, since 
an abortion without parental notification would be permissible in the 
minor's home state under such circumstances.
---------------------------------------------------------------------------
                            IV. CONCLUSIONS

    For the reasons discussed above, I am of the view that Congress has 
power under the Full Faith and Credit Clause and under the Commerce 
Clause to enact H.R. 1755. The bill is not flatly contrary to 
principles of federalism, but rather is fully consistent with a 
plausible conception of federalism. H.R. 1755 does not run afoul of any 
constitutional limitations on state extraterritorial powers, nor is it 
inconsistent with the right to travel or with the abortion rights that 
the Court has located in the Fourteenth and Fifth Amendments.
    In short, whether H.R. 1755 should be enacted is a purely political 
question that is not foreclosed to the Congress by the Constitution.

    Mr. Chabot. Thank you, Professor.
    Reverend Powell, you're recognized for 5 minutes.

TESTIMONY OF LOIS M. POWELL, MINISTER, UNITED CHURCH OF CHRIST, 
  ON BEHALF OF THE RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE

    Rev. Powell. Thank you, Mr. Chairperson, and gentlemen of 
the Committee present. I am pleased to be able to testify 
today. I am a person who has been counseling women facing 
difficult decisions around pregnancies, unwanted pregnancies 
since 1970. I have done that as a student in college and I have 
done that as an ordained person in the United Church of Christ.
    I am here to represent many people who are deeply disturbed 
by the possibility that United States Congress might enact a 
law that would jeopardize the health and the well-being of many 
young women.
    When a woman is young, of minor age, she too must be able 
to determine what is best for her. Optimally, optimally, she 
would be able to discuss this with her parents or her legal 
guardian, and together they would come to agreement about what 
path to take. And usually, young women do in fact discuss this 
with their parents, even in States without parental consent or 
notice laws. Of those young women who do not talk with their 
parents when they are pregnant as teenagers, over half do in 
fact involve a close adult relative or other responsible adult.
    But unfortunately, we don't live in an optimal world. I am 
here today to bring a human face and a human reality to the 
potential effects of this Act.
    Someone once said that statistics are human faces without 
tears. As a pastor in Tallahassee, Florida, I extended 
counseling support to parishioners who were faced with unwanted 
and difficult pregnancy decisions, and also to clients at a 
local women's clinic, who struggled particularly with spiritual 
and religious aspects of these decisions.
    In the capacity as a spiritual counselor to a 16-year-old 
woman who had traveled from South Georgia to the clinic in 
Tallahassee with her 20-year-old sister, I discovered that 
these young women were conservative Christians. They were 
members of a church, and their family were members of a church 
that had taken a very strong and public visible anti-abortion 
stance. The 16-year-old who was pregnant only had her older 
sister to turn to, she felt, when she learned she was pregnant. 
Neither felt that they could discuss this matter with their 
parents because their parents had made their disapproval of 
sexual activity before marriage abundantly clear, as had their 
church. Their worst fear was that they would be removed from 
this church, and in fact, abandoned by the faith they had known 
from childhood. The Child Custody Protection Act would only 
make this kind of a difficult situation even worse, possibly 
driving a wedge between the daughters and their parents and 
creating a lifelong breach in family communication.
    Additionally, under this Act, the 20-year-old sister could 
be charged with a felony for accompanying her younger sister 
across State lines. And I ask you, is this just and is this 
justifiable? Does not this kind of punitive law unduly burden 
young women and place a formidable obstacle in the way of their 
securing legal and safe reproductive health?
    I assured this young woman and her sister that God had not 
abandoned them and would remain with them always, and I 
encouraged them to find a safe way eventually to discuss this 
matter with their parents and restore family relationships.
    Not one woman, whether a teen or adult woman, has the same 
set of circumstances that she confronts, but we can never 
forget that individual women, who themselves have been created 
in the image of God, struggle in each and every instance.
    This Act will not protect girl children, nor will it make 
their struggles less difficult. It will make them even more 
vulnerable in times of deep crisis. Only 14 percent of our 
counties nationwide have abortion providers, and the majority 
of women will have to travel at least to another county, but 
the nearest abortion provider may in fact be across a State 
line. If that woman is a minor and if she is terrified to tell 
her parents because of a history of physical violence in the 
family, or for the other real concerns, how is she going to get 
there, alone, hitchhike, on a bus?
    What if she had been raped by a father, as was the case 
with Spring Adams, a sixth-grader in Idaho, who became 
impregnated by her father and was forced by that State's 
parental consent and notification law to tell her mother that 
her father had raped her. The father then shot and killed her, 
her mother and then himself. Are these the family values we are 
to espouse?
    Yes, parents are supposed to protect their children from 
harm, and most do, but even in the most loving of parent-child 
relationships harm can happen. Children who are close to their 
parents may not know if the knowledge of a pregnancy will turn 
parents against them. They don't know if God will leave them 
alone or punish them. And so they are silent. Sometimes here is 
violence in the household. So it is reasonable that they turn 
to other adults whom they do trust and in whom they can 
confide. It would be the role of that adult to help them 
negotiate all of these matters, to help them make the best 
decision possible for them, and to assist her in achieving what 
she determines is best for her.
    Should minors access the legal health care services be 
compromised in any way? I don't think so. I worry about every 
teenager who becomes pregnant, and I pray for the day when this 
is a rare occurrence in our society. I pray for the day when 
boy children are taught to respect girls, when they know that 
while the consequences for themselves of having impregnated a 
girl are different than they are for the girl, there are 
consequences nonetheless for them. I pray for the day when 
rape, statutory rape, date rape or stranger rape, that results 
in a pregnancy, becomes the issue itself that our society is 
forced to look at and must address, and not the resultant 
pregnancy.
    Parents do need to be involved in their children's lives. 
We need to create a culture that encourages good parenting. Yet 
I know from my years in ministry that not all parents are 
equipped to be good parents.
    Please do not support this Act. It is not really about 
protecting children, but it is about governmental interference 
in decisions of conscience that young people sometimes have to 
make. May you continue to hold the names, faces and hearts of 
those who would be most impacted by this Act, should it come to 
pass, before you.
    Thank you.
    [The prepared statement of Reverend Powell follows:]

             Prepared Statement of Reverend Lois M. Powell

    Ladies and gentlemen of the Committee, thank you for the invitation 
to speak with you today. My name is The Reverend Lois M. Powell, and I 
currently serve on the national denominational staff of the United 
Church of Christ in our Justice and Witness Ministries. I am also the 
Chairperson of the Board of Directors of the Religious Coalition for 
Reproductive Choice, the 31-year-old coalition of national religious 
and religiously affiliated organizations from 15 denominations and 
faith traditions, including the Episcopal Church, Presbyterian Church 
(USA), United Methodist Church, Unitarian Universalist Association, 
Christian Church (Disciples of Christ), Reform and Conservative 
Judaism, and my own denomination. Together, the denominations and 
traditions in the Coalition have more than 20 million members.
    I am here today as a person who has counseled women facing unwanted 
or unintended pregnancies since 1970, when I started as a peer 
counselor with a campus chapter of Planned Parenthood at my college. I 
am here today to represent many people of faith who are disturbed by 
the possibility that the United States Congress might enact a law that 
would jeopardize the health and well being of minor young women. Since 
1969, the United Church of Christ has supported the right of women to 
determine their reproductive health. Since 1973, it has consistently 
opposed efforts to limit or eliminate full access to these legal rights 
for any woman facing an unintended or unwanted pregnancy regardless of 
age or income. A majority of persons of faith in the United States--
74%, in fact, according to a national survey conducted in 2000 by Lake 
Snell Perry and Associates--believe that these very private decisions 
are best made by the woman in accord with her religious and ethical 
beliefs, and her God.
    When the woman is young, a minor, she, too, must be able to 
determine what is best for her. Optimally, she would be able to discuss 
this with her parents or legal guardian and together they would come to 
agreement about what path to take. Usually young women do involve their 
parents, even in states without mandatory parental consent or notice 
laws. Of those young women who did not involve a parent in their 
decision, over half involved a close relative or other responsible 
adult. (Stanley K. Henshaw and Kathryn Kost, Parental Involvement in 
Minors' Abortion Decisions, 24 Family Planning Perspectives 199--200, 
207 [1992])
    But we do not live in an optimal world. I am here today to bring a 
human face, a human reality to the potential effects of this Act. In 
the pre-Roe v. Wade era, when I began counseling women facing unwanted 
or unintended pregnancies with a campus chapter of Planned Parenthood, 
those who chose to terminate a pregnancy were referred to a member of 
the clergy in the Clergy Consultation Services, a network of ministers 
and rabbis who offered all-options counseling before referring women to 
places where safe abortions could be obtained. (In 1970, that place was 
the State of New York, which had made abortion legal that year.) In 
many cases, they did so in order to save the lives of women who might 
otherwise take desperate measures to end their pregnancies, attempts 
that often ended in death or the inability to have children at all.
    Someone once said that statistics are human faces without the 
tears. After I was ordained in 1978, I continued to provide counseling 
and support to women struggling with whether or not terminate a 
pregnancy. As a pastor in Tallahassee, Florida, I extended this support 
to parishioners and to clients at a local women's clinic who struggled 
particularly with spiritual and religious issues. Currently, I receive 
an occasional request to counsel women who have contacted the Ohio 
Affiliate of the Religious Coalition for Reproductive Choice with a 
desire to talk with a minister.
    While in Tallahassee, I counseled a 16-year-old woman at the clinic 
who had traveled from South Georgia with her 20-year-old sister. These 
sisters had grown up in a conservative Christian church that had a 
strong and publicly visible anti-abortion position. The 16-year-old had 
only her sister to turn to for support when she learned she was 
pregnant. Both felt they could not talk to their parents about the 
pregnancy because their parents had made their disapproval of sexual 
activity abundantly clear. Their church was a very important part of 
their family and community life, and the sisters were terrified at the 
prospect of public humiliation and shame that could fall upon the 
entire family if it became known that a member of the family had an 
abortion. Their worst fear was that they could be removed from this 
church and, in effect, abandoned by the faith they had known from 
childhood. The Child Custody Protection Act would only make this 
difficult situation worse. It would drive a wedge between the daughters 
and parents and could cause a lifelong breach in family communication.
    Under the Child Custody Protection Act, the 20-year-old sister 
would be a federal criminal for accompanying her younger sister across 
state lines for an abortion. I ask you, is this just? Does not this 
kind of punitive law unduly burden young women and place a formidable 
obstacle in the way of their securing legal and safe reproductive 
health care?
    I assured this young woman, and her sister, that God had not 
abandoned them but would remain with them always. I encouraged them to 
find a way--eventually--to talk with their parents but not without a 
supportive third person who could mediate on their behalf. I also 
encouraged them to find a counselor close to where they lived who would 
be able to offer emotional support in a non-judgmental manner should 
any issues arise when they returned home. This young woman did decide 
to have an abortion but many of the same questions and issues would 
have applied if she had decided to carry the pregnancy to term.
    Statistics are human faces without the tears. Not one woman has the 
same story or set of circumstances as any another woman. Each situation 
is unique, shaped by the nuances of her religious background, her 
family setting, her finances, her emotional and psychological maturity, 
and other factors too complex and diverse to enumerate. Some women 
under the age of 18 are already mothers, some only want to finish high 
school. Some choose to terminate their pregnancy, some choose to carry 
their pregnancy to term. We can never forget that individual women, who 
themselves have been created in the image of God, struggled in each and 
every instance.
    The Child Custody Protection Act will not protect girl children or 
make their struggle less difficult. It will make them even more 
vulnerable during a time of crisis. When only 14% of all counties 
nationwide have an abortion provider, a majority of women seeking to 
exercise their legal rights to full reproductive health care will have 
to travel at least to another county. The closest provider might, in 
fact, be across a state line. If that woman is a minor, and if she is 
terrified to tell her parents because of a history of physical violence 
in the family or for other real concerns, how is she going to get 
there? Alone? On a bus? What if she had been raped by a father, as was 
the case with Spring Adams, a sixth-grader in Idaho. Spring was 
impregnated by her father, and because of the parental consent 
requirement in her state, she was forced to tell her mother that her 
father had raped her. He then shot and killed young Spring Adams, her 
mother and then himself. (Richard North Patterson, in a speech to the 
National Abortion Federation, April 23, 2001) This is one American 
family's story.
    Parents are supposed to protect their children from harm. But even 
in the most loving of parent-child relationships, harm can happen. 
Children who are close to their parents may not know if the knowledge 
of a pregnancy will turn parents against them, or they do not know if 
God will punish them, and so they keep silent. In households in which 
distrust or violence prevail, children are even less likely to trust a 
parent or legal guardian in a time of crisis. So it is reasonable that 
they turn to other adults whom they do trust and in whom they can 
confide. It would be the role of that adult to help the young woman to 
negotiate the rocky waters of family conflict, to make a decision about 
what to do, and to assist her in achieving what she determines is best 
for her. If that assistance included accompanying her across a state 
line to terminate a pregnancy, that trusted adult would be a federal 
criminal.
    I ask you, is this just? Should minors' access to legal health care 
services be compromised in this way? Should those who assist them in 
obtaining legal health care be criminalized? Are these the family 
values we choose to espouse?
    I worry about every teenager who becomes pregnant, and I pray for 
the day when this is a rare occurrence in our society. I pray for the 
day when boy children are taught to respect girls, when they know that 
while the consequences for themselves of impregnating a girl are 
different than they are for the girl, there are consequences for them. 
I pray for the day when rape, whether date rape or stranger rape, that 
results in pregnancy becomes the real issue which we as a society must 
address, not the resultant pregnancy. I believe we all would affirm 
this.
    Parents need to be involved in their children's lives, and we as a 
society need to create a culture that encourages good parenting. Yet I 
know from my years in the ministry that parents are not perfect and 
that many struggle to understand their own children. I also know 
parents who never grew up themselves and who impose on their children 
their own immaturity. The solution to involving parents is not to pass 
legislation that would mandate family communication on one particular 
issue--this issue of abortion. In reality, this legislation could end 
up destroying the family's relationships and endangering the girl's 
well-being.
    Please do not support this Act. It is not about protecting children 
but about governmental interference in the decisions of conscience that 
young women sometimes have to make.
    Thank you again for the opportunity to testify before you today. 
May you continue to hold the faces, names and hearts of those who would 
be most impacted by this Act, should it come to pass, before you.
    Reverend Lois M. Powell, Child Custody Protection Act, House 
Subcommittee on the Constitution, July 20, 2004
    Reverend Lois M. Powell, Child Custody Protection Act, House 
Subcommittee on the Constitution, July 20, 2004

    Mr. Chabot. Thank you.
    Professor Collett, you're recognized for 5 minutes.

    TESTIMONY OF TERESA STANTON COLLETT, PROFESSOR OF LAW, 
             UNIVERSITY OF ST. THOMAS SCHOOL OF LAW

    Ms. Collett. Thank you, Mr. Chairman, Members of the 
Committee.
    I must confess I am puzzled by Reverend Powell's solution 
to the problem of Spring Adams, that a secret abortion would 
have allowed her to continue to reside in the incestuous home 
and be abused again. In fact, that was the solution of Planned 
Parenthood in Arizona, where a 13-year-old was being raped by 
her foster brother. They did indeed give her a secret abortion 
at a time when that State's parental involvement law had been 
enjoined by the court. They did not tell of the incest, as they 
were required under that State's law, but in fact, sent the 
little girl back to the same house. She was raped again, 
impregnated again, and it was only when she came back for a 
second abortion that it was discovered. Fortunately, it was 
discovered, and Planned Parenthood was found civilly liable for 
the failure to report, and the girl was removed from the 
household.
    That is one of the benefits of parental involvement laws. 
The law before you, as proposed, would not impose a national 
parental involvement law, but that's what motivates the 
overwhelming consensus in this country, that these are good 
laws. Forty-four states have passed parental involvement laws, 
but 10 of them have been found to be constitutionally 
defective, and another group of them have provisions that allow 
for someone other than the parent to bypass it, and other than 
a judge. So only in 24 States must a parent be notified or give 
consent.
    This particular law is necessary because as telephone 
directories that are located in States that do not have 
effective parental involvement laws evidence, abortion 
providers recognize the absence of parental consent will 
increase their business. All you need to do is look at the 
Yellow Pages in cities like St. Louis or Philadelphia, and 
you'll see abortion providers' ads that include things like, 
``No parental consent required,'' and then you'll recognize the 
importance of this.
    A New York Times article suggested that South Jersey 
Women's Center in Cherry Hill found a 25 percent increase when 
they began advertising no parental involvement required. There 
was a 200 percent increase in the number of girls seeking 
abortions after the Pennsylvania law went into effect in 
neighboring States. So it's clear that abortion providers are 
taking advantage of this, and this law allows States to ensure 
that the choice that they have made through the proper 
political process is given in effect to protect their minor 
citizens.
    Is that important and valuable? Well, as this Congress 
learned through a congressional report from the Center for 
Disease Control, two-thirds of the fathers of teenage mothers 
are age 20 years or older, suggesting that there is in fact 
differences in power and status between the sexual partners. In 
addition to that, a survey of 1,500 unmarried minors having 
abortions revealed that among the minors who reported that 
neither parent knew of the abortion, 89 percent said that a 
boyfriend was involved in deciding or arranging the abortion, 
and 93 percent of those 15 and under said that the boyfriend 
was involved.
    Abortion providers are reluctant to report information. 
It's not just an isolated case in Arizona. In fact, in Oregon, 
an abortion clinic provided an abortion to an 11-year-old, yet 
failed to report the sexual abuse. It was only because they 
botched the abortion and there were in fact pieces of fetal 
remains in the young girl causing stomach cramps, so when the 
child was taken to the hospital, the doctor there reported it, 
and it was discovered that she had been raped.
    Or consider the case of Connecticut that is still before 
the courts, where a 10-year-old girl was impregnated by a 75-
year-old man. The child was examined by two physicians who 
failed to report the sexual abuse to public authorities as 
required by Connecticut law.
    A 36-year-old Nebraska man went so far as to impersonate 
the father of the 16-year-old girl he had impregnated in an 
attempt to obtain an abortion and thus hide the evidence of 
their illegal relationship.
    These laws are an important deterrent to that sort of 
conduct, and the States have the rights to have those laws 
effective whether the girl chooses to cross State lines or not. 
Certainly this law is one way to make it work.
    I see I'm out of time, Mr. Chairman.
    [The prepared statement of Ms. Collett follows:]

              Prepared Statement of Teresa Stanton Collett




    Mr. Chabot. Thank you very much.
    The panel up here will now have the opportunity to ask 
questions for 5 minutes. I'll begin with myself, and I'll begin 
with you, Ms. Farley, if I can.
    In your opinion, would this Act, the Child Custody 
Protection Act, help deter individuals such as the woman who 
took your minor daughter from Pennsylvania to New York to 
obtain an abortion from doing that type of thing? Do you think 
there is--do you think this is a positive step in the direction 
of preventing things--what happened to you from happening to 
other women?
    Ms. Farley. Yes, I do. I think it would not only prevent a 
situation like my daughter was in, but maybe the abortion 
providers would be more responsible as far as--with Crystal, 
right away when she had difficulties, I could never get hold of 
the physician that performed the abortion. He refused to 
provide the physician that was caring for Crystal any records. 
I had to take Crystal all the way back to New York for them to 
hand her the records in hand. It was a very difficult process. 
And this, you know, make it--somebody, the physicians 
responsible that are doing the abortions and not just a 
lucrative business.
    Mr. Chabot. Thank you.
    Professor Collett, let me turn to you if I can. In your 
opinion is the judicial bypass, is it a viable option for girls 
who feel that they can't tell their parents that they're 
pregnant and they're considering having an abortion? Do you 
think that's an appropriate process? Does that seem to work?
    Ms. Collett. Absolutely. In fact, I was puzzled by Mr. 
Nadler's comment that there are States where it doesn't work. 
That was one of the arguments that was raised when Texas was 
considering the parental notice law, that judges in Texas would 
never grant judicial bypass, and in fact, an ACLU memorandum on 
parental involvement laws cites Texas as one of the States that 
has a model bypass procedure. Girls who are unable to involve 
their parents are in fact able to obtain a bypass.
    There are statistics in my written testimony, as a matter 
of fact, that I obtained from States that keep track of 
bypasses. In 2002 there were girls that in Alabama obtained 
approval, but what we see instead is approximately 90 percent 
of the girls in most States involve their parents, which is as 
it should be.
    Mr. Chabot. Thank you very much.
    Professor Rosen, let me turn to you if I can. It's my 
understanding that it's your opinion that rather than 
undermining federalism, the Child Custody Protection Act 
actually reinforces basic constitutional principles of 
federalism; is that correct? And could you espouse on that a 
bit?
    Mr. Rosen. Yes, that is my view. I think one of the great 
benefits of federalism is that it permits coordination of a 
large number of people in our country, but at the same time it 
allows for differences at sub-Federal levels, and there are 
obviously different communities across the country who feel 
very differently about different things. And I think it's 
beneficial for federalism to encourage those differences across 
States.
    That, I will say, however, is my personal view of 
federalism. I think that one could have a different conception 
of federalism. I think one could espouse the view that 
federalism is better, you know, have the States have different 
laws, but allow people to--citizens to pick and choose laws and 
go and travel to other States and avail themselves of those 
laws. I think that's a plausible conception.
    Others, like Professor Tribe and Rubin have argued that, 
but I certainly don't think that conception of federalism is 
required by the case law. In fact, I think that it is an open 
question that is appropriately solved by Congress.
    Mr. Chabot. Thank you. Thank you very much.
    Rev. Powell, let me ask you. You had talked about a 
particularly horrible case in which a man killed his daughter 
and his wife and then ultimately himself, and that's 
obviously--I don't know if I want to say a rare case because it 
has happened on other occasions as well, terribly tragic case. 
But in most cases would you agree that when a minor has become 
pregnant and it's an unwanted pregnancy, at that point that 
she's going to make a decision as to whether she's going to 
keep the baby or not? Would you agree that in most cases it is 
the parents that ought to be involved in that decision along 
with that child?
    Rev. Powell. In the best of all possible worlds, yes, and 
in my experience that's not always possible. My concern about 
this Act is that that child may in fact turn to another 
responsible adult, whom they do trust, who could assist them 
with all the decisions that a parent might make in terms of 
medical concerns, place, the decision itself, where to go, how 
to get there.
    Mr. Chabot. Let me give myself an additional minute because 
I'm out of time. Let me just follow up on your response there. 
But you've heard some other cases in which--and we have 
documented cases of this nature, where sometimes the young girl 
is taken there by somebody who probably doesn't have her best 
interest in mind. Maybe they--an older boyfriend or an older 
adult male who got her into this situation to begin with, and 
that might be the person that does it. Now, this law would make 
it illegal for a person to do that if they're doing it in order 
to get around a parental notification law in that particular 
State. Don't you think that that would be a positive thing to 
involve the parent if she didn't have the option of the guy 
that may not have her best interest in mind?
    Rev. Powell. I recognize that those are tragic situations, 
but I would suggest that there are already laws in place that 
were not enforced and could be enforced in those situations 
that would prevent that from happening.
    Mr. Chabot. My time is expired.
    We probably have time for one round of questions from the 
gentleman if he wants to take his time now. The gentleman is 
recognized for 5 minutes.
    Mr. Nadler. Thank you.
    Professor Collett, most of your testimony involves crimes 
such as rape, incest, the failure to follow laws to report 
these crimes to the authorities. Do you believe that requiring 
reporting to a parent who is a rapist is the appropriate 
solution?
    Ms. Collett. Since the situation is that less than 5 
percent of pregnancies are involved, involving incest----
    Mr. Nadler. Let's talk about those 5 percent, because this 
law does not--is not made of exceptions.
    Ms. Collett. I believe that a judicial bypass would be the 
appropriate way to respond.
    Mr. Nadler. And you're not aware of any judges in the 
United States who have refused bypasses because of their 
personal views on abortion?
    Ms. Collett. I am aware that there have been allegations to 
that effect.
    Mr. Nadler. Okay, thank you.
    Rev. Powell, does the judicial bypass work? Was I wrong 
before when I said that there are cases when it doesn't work? 
Are there no problems for young women in this respect?
    Rev. Powell. In my view and in my experience in counseling 
with younger women, most of them are not aware of a judicial 
bypass. They have no knowledge of it. They don't know what the 
procedure is. They would have to navigate by themselves somehow 
what that is, going before a judge, figuring that out.
    Mr. Nadler. There's no source of legal aid?
    Rev. Powell. There are sources of legal aid, yes, and if a 
teenager is directed into the right place, she in fact can 
receive that judicial bypass and it can work, certainly.
    Mr. Nadler. Thank you.
    Professor Rosen--excuse me.
    Rev. Powell, it can work sometimes, but are you aware of 
many--of cases where it doesn't work?
    Rev. Powell. I personally am not aware of cases where it 
hasn't worked, but I certainly have heard that they have been 
refused.
    Mr. Nadler. Thank you.
    Professor Rosen, you referred to the Mann Act. The Mann Act 
sets a national rule. You may not go across State lines for 
this purpose anywhere. It doesn't depend on State law. The 
Fugitive Slave Act aside, this is the only bill that I'm aware 
of which essentially says to a resident of one State, that you 
carry the law of that State on your back as a burden in another 
State, when you go to another State to do something which is 
legal in that other State. This bill, in effect, nationalizes 
individual State laws. How can that be constitutional? And 
don't tell me about the Commerce Clause, because that's not the 
issue here. It's personal liberty.
    Mr. Rosen. I don't see any source in the Constitution that 
precludes States from----
    Mr. Nadler. Exporting their law to another State?
    Mr. Rosen. Vis-a-vis their citizens, correct.
    Mr. Nadler. So in other words, if you're a citizen of New 
York--could the State of New York enact a law saying that any 
New York citizen residing in New Jersey, it's a felony to do X, 
Y or Z in New Jersey?
    Mr. Rosen. Yes.
    Mr. Nadler. It could?
    Mr. Rosen. Yes. Now, that's not----
    Mr. Nadler. That's a rather surprising assertion of State 
power which I've never heard before.
    Mr. Rosen. Well, it's perfectly consistent with what the 
model penal code says, as----
    Mr. Nadler. I don't care about the model penal code. It's 
not consistent with the Constitution.
    Mr. Rosen. Well, I don't see where in the Constitution it's 
not consistent with it. I don't see----
    Mr. Nadler. So in other words, it's your testimony that 
States control their citizens while living--who live in other 
States?
    Mr. Rosen. Yes, they have the power because they have----
    Mr. Nadler. Okay. I rest my case. Thank you.
    Mr. Chabot. The gentleman's time's expired.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    I would direct my first question to Rev. Powell. And with 
regard to parental notification, parental consent, and there 
are, there are States that have a list of parents under that 
kind of statute that is sometimes quite extensive, and it often 
will include parents, legal guardians, which I believe it 
should. Then it goes to grandparents, brothers, sisters, aunts, 
uncles. And that brother or sister might be an estranged 
brother or sister that could live in another State that would 
be almost a generation removed, maybe never has met the young 
lady in question that has to, that has to be confronted with 
this issue. In addition to that, there's often judicial bypass 
included.
    Now, as a young lady in this dilemma considers these 
alternatives on notification--and I'll just make this point--
that I believe that if we statutorily set up a long list, a 
menu for that young lady to choose from on alternatives for 
notification, that if the parents are, I'll say, resistant to 
the abortion and maybe she's--certainly she's going to believe 
they're going to come down on her harder than they would on--or 
hard on her. That will be her decision--her fear, regardless of 
whether they do or whether they don't. What do you think that 
evaluation system will be for that young lady in that dilemma? 
Will she look at that and say, where do I get the best advice? 
Or will she look at that and decide what's the path of least 
resistance?
    Rev. Powell. Are you asking me about a young woman who 
wants to cross the State line with a responsible adult other 
than her parent? Because that's what the Act is about.
    Mr. King. I'm going to ask--generally, I'm asking about 
that decision-making process of a young woman who is 
considering an abortion, whether she goes to someone who is her 
best advice or whether she goes to the path of least 
resistance.
    Rev. Powell. The young women that I have spoken with and 
counseled have come to me because they regarded me as someone 
who could be--treat the information confidentially and provide 
her with trusted advice and counsel so that she could make up 
her own mind. I would always encourage her, if at all possible, 
to involve her parents in the decision.
    Mr. King. Then if I'm to interpret your answer, that is it 
would be a combination of that confidentiality and good advice 
in the same package if she can find it, which might also follow 
the path of least resistance.
    Mrs. Farley, what would your opinion be of the question 
I've asked?
    Ms. Farley. My opinion is that a minor would chose the path 
of least resistance. The person--my daughter told me she 
figured this woman that took her out of State to New York, she 
was an adult so she would know what to do. And she was scared 
and chose the path of least resistance.
    Mr. King. And would you think that would be typical of a 
young lady that age?
    Ms. Farley. Yes, I do.
    Mr. King. Thank you.
    Professor Collett?
    Ms. Collett. I think it's human nature. I think we 
typically--when we're scared, we'll choose those who will 
affirm what we want to do.
    Mr. King. Especially at an immature age. The younger, the 
more immature, the more vulnerable they are to someone that 
will offer a hand, whether it's a helping hand or whether it's 
just a hand.
    Ms. Collett. Unfortunately.
    Mr. King. Thank you. And then the discussion about whether 
judges are able to follow the law in spite of their convictions 
or their personal morality, I'd just make the statement that I 
do know judges who have to make that decision on whether to 
grant a judicial bypass in the case of an abortion and in spite 
of their religious beliefs and their personal convictions. They 
swallow hard and follow the law. I'd like to think that's what 
we do in all cases.
    I would have no more questions, and I'd yield back the 
balance of my time. Thank you, Mr. Chairman.
    Mr. Chabot. I thank the gentleman. The gentleman's time is 
expired.
    The bells that you heard were more votes on the floor. We 
have two votes, so my guess is we're going to be there for, 
ballpark a half hour or so. That's what they just told us. They 
called over there. There's a 15-minute vote followed 
immediately by another 15-minute vote. So we're down to the 5 
minutes probably to go. That second bell went off. So we will 
be back. As soon as the second vote is over, we'll get back 
here as quickly as possible, and those that still have 
questions will have the opportunity to ask them. And so we're 
in recess. Thank you.
    [Recess.]
    Mr. Chabot. The Committee will come back to order. The 
gentleman from Virginia, Mr. Scott, is recognized for 5 minutes 
to ask questions.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Professor Collett--is that how you pronounce it, Collett?
    Ms. Collett. Yes.
    Mr. Scott. I just had a couple of kind of legalistic 
questions. I assume this bill would create a felony; is that 
right, for the violation, and not a misdemeanor?
    Ms. Collett. I'm looking at----
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I'll yield.
    Mr. Chabot. Yes. It's 1 year maximum penalty, plus a fine, 
so it would actually be a first-degree misdemeanor.
    Mr. Scott. I'm sorry? Misdemeanor?
    Mr. Chabot. First-degree misdemeanor.
    Mr. Scott. Okay. Professor Collett, Rev. Powell indicated 
that an older sister could get caught up in this. What about a 
younger sister? If you had a 17-year-old minor with a 15-year-
old sister, could the 15-year-old get caught in this and be 
exposed to criminal prosecution?
    Ms. Collett. I don't believe there is a defense based on 
the age.
    Mr. Scott. Transport is not defined. Would that include 
accompanying the minor?
    Ms. Collett. I believe transport is defined in the Federal 
Code itself though, is it not, Representative?
    Mr. Scott. I don't know.
    Ms. Collett. I believe it is.
    Mr. Scott. Would that include accompany, do you know?
    Ms. Collett. I do not.
    Mr. Scott. Usually in criminal code a word like that would 
be----
    Ms. Collett. Defined narrowly. You would give the----
    Mr. Scott. You'd define narrowly, and you would, if there 
was another definition somewhere, you would refer to it, and I 
don't see that in here. But do you think it ought to include 
accompany, ride the bus with?
    Ms. Collett. With the intention of, with the proper mens 
rea, yes.
    Mr. Scott. So it should, okay. Should the taxicab driver be 
exposed?
    Ms. Collett. They would not have the proper mens rea.
    Mr. Scott. If they're listening to the conversation in the 
back seat, ``we're going to get an abortion?''
    Ms. Collett. Again, they would not have the proper mens 
rea.
    Mr. Scott. They know what they're doing. They're 
transporting someone across State line for the purpose of 
getting an abortion.
    Ms. Collett. But not for the purpose of evading the 
parental involvement law.
    Mr. Scott. And if the conversation, so that they knew what 
they were doing as they were driving along, if the ticket agent 
at the bus station, if the teenager confided in the ticket 
agent and said, ``I need to go across State lines to avoid the 
parental consent laws in this State, so I need a ticket across 
the State line,'' and the ticket agent sold the ticket, would 
that be a violation of the law?
    Ms. Collett. I do not believe so.
    Mr. Scott. Where would that be an exception?
    Ms. Collett. Again----
    Mr. Scott. The bus is transporting the person across State 
lines, knowing that it's for the purpose of getting an abortion 
in violation of the local law?
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. Thank you for yielding. Just reading the law 
itself, it says, ``Except as provided in Subsection such-and-
such,'' whoever knowingly transports a minor across a State 
line with the intent that such minor obtain an abortion. So I 
think the argument would be that the person who sells the 
ticket or the person who drives the cab, their intention is not 
that the person get an abortion. Their intent is to get a fare 
in return for the service they're providing. So I would assume 
that that would probably be Professor Collett's point of view.
    Ms. Collett. Yes, Mr. Chairman.
    Mr. Chabot. Thank you.
    Mr. Scott. So I would assume then, if the gentleman would 
respond, that if we had a taxicab and bus exception, you 
wouldn't object?
    Mr. Chabot. I'm not--would the gentleman yield?
    Mr. Scott. I'll yield.
    Mr. Chabot. He can offer that amendment if he'd like to at 
markup. I'd have to consider it. I probably would not. I don't 
think we need to further complicate the legislation. It seems 
pretty clear. I think they're talking about some adult----
    Mr. Scott. I know what you're talking about. I'm reading 
the bill. And last time we had this, the taxicab amendment was 
rejected.
    Professor Rosen, you indicated--talked about crossing State 
lines and how the law kept going. Would it be constitutional 
for the Commonwealth of Virginia to prohibit junkets to 
Atlantic City for the purpose of gambling at a casino? You 
can't gamble in casinos in Virginia.
    Mr. Rosen. Right. I'm of the view that it probably would be 
constitutional. There's a complication because there are--
although States presumptively have significant powers to 
regulate their citizens when they're out of State, there are 
certain limitations. One is in respect of economic matters, the 
Dormant Commerce Clause creates certain limitations, and 
gambling could trigger one of those----
    Mr. Scott. How would gambling not trigger it and getting an 
abortion would? I mean it would be the same principle, wouldn't 
it?
    Mr. Chabot. The gentleman's time is expired, but the 
witness can answer the question if he so wishes.
    Mr. Scott. May I just ask for an additional minute?
    Mr. Chabot. Without objection.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chabot. Sure.
    Mr. Rosen. Well, in my view, there's uncertainty in the 
case law with regard to the Dormant Commerce Clause limitations 
on extraterritorial regulation. I think----
    Mr. Scott. It's not extraterritorial regulation. It's 
crossing State line with the intent. So while you're in 
Virginia, you're heading toward the line, and that is the line, 
crossing the line, leaving Virginia with the intent to go to 
Atlantic City to gamble in a casino.
    Mr. Rosen. Yes.
    Mr. Scott. So that would be as constitutional as this, same 
principle?
    Mr. Rosen. Yes.
    Mr. Scott. Is the physician, Professor Rosen, liable under 
this law, the physician in the other State?
    Mr. Rosen. No, because the law is not written to cover the 
physician, but only the person who transports.
    Mr. Scott. What about conspiring? If the physician invites 
the person to cross State lines to conspire for them to violate 
this law; would that not be a conspiracy charge for the doctor?
    Mr. Rosen. It might be. I'm not sufficiently familiar with 
the law of conspiracy, but it might be.
    Mr. Scott. What about civil liability?
    Mr. Rosen. I'm not sufficiently familiar with the law of 
conspiracy and civil liability.
    Mr. Scott. Anybody on the panel familiar with conspiracy 
and civil law, to know whether or not the physician gets caught 
up in this if they perform the abortion in the other State 
where it's legal without parental consent?
    Mr. Chabot. The gentleman's time is once again expired. The 
witness can answer the question if he'd like to.
    Mr. Rosen. Well, just a modification of your question. 
You're saying if the physician participates in transportation; 
that's your hypothetical, correct? I mean if the physician 
actually, for example, goes into the car and transports, I 
think the answer is yes. If the physician does less than that, 
it seems to me that the statutory language would not cover the 
physician.
    Mr. Chabot. The gentleman's time is expired.
    The other gentleman from Virginia, Mr. Forbes, is 
recognized for 5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman.
    I'd like to thank all the panelists for being here. We all 
wish we could spend more time asking you some questions to 
clarify your positions, but we're limited to 5 minutes, so I'm 
going to ask you if you can be as concise as possible, and you 
can elaborate on your answers in the record if you'd like to.
    But Rev. Powell, let me ask you. Based on your testimony I 
would conclude that you counsel with and work with at least a 
significant number of teenagers so that you're aware of the 
pressures and problems that are confronting them on a day-to-
day basis in today's society; is that true?
    Rev. Powell. Since 1970, when I had started this work, yes.
    Mr. Forbes. And that would be a wide array of problems 
they're confronting, not just limited to pregnancies; is that 
correct?
    Rev. Powell. Yes.
    Mr. Forbes. Are you aware of the huge marketing attacks 
that are taking place on teens today regarding credit cards?
    Rev. Powell. Yes.
    Mr. Forbes. And do you understand that that has resulted in 
a number of suicides by teenagers?
    Rev. Powell. No, I'm not aware of that.
    Mr. Forbes. It's in a lot of the literature, news articles 
and all, that a number of teens, because they are being sold 
credit cards as teenagers and they are becoming overwhelmed 
when they have to confront their parents, and actually 
committing suicide rather than doing that.
    The question I would ask for you is, given this marketing 
scheme where they're trying to sell more and more teens credit 
cards, would you be in favor of having teens be able to sign 
for their own credit cards under the age of 18-years-old?
    Rev. Powell. I am stretching to see what the relevancy is 
for the current Act before us that we're discussing----
    Mr. Forbes. Fortunately, we don't have a judge to answer 
the relevancy, so if you would just answer the question if you 
have an opinion or not.
    Rev. Powell. I would say yes if they're under the age of 
18.
    Mr. Forbes. So you think a 16-year-old or a 15-year-old 
ought to be able to sign to bind themselves to a credit card?
    Rev. Powell. No, they shouldn't.
    Mr. Forbes. They shouldn't. Why shouldn't they?
    Rev. Powell. Because ultimately the parents are going to be 
responsible for those financial costs.
    Mr. Forbes. Not if we give authority to the teenage to--
teenager, and say that they would be liable themselves.
    Rev. Powell. If the teenager had been granted whatever the 
legal term is for being an adult on your own, I would say yes, 
that they should be able to sign their own credit card.
    Mr. Forbes. So you think you would see nothing wrong with 
as a legislature us being able to say that a teenager could 
sign to bind themselves to credit card debt at 16-years-old 
just like they're doing at 18-years-old?
    Rev. Powell. No, I wouldn't advise that.
    Mr. Forbes. I'm just asking would you see any legal problem 
with doing that?
    Rev. Powell. I don't know, because I'm not really familiar 
with what the legal ramifications would be.
    Mr. Forbes. Okay. Let me ask you this. You recommend, you 
said, I think, that all of the teens that you counsel with, 
that they talk with their parents?
    Rev. Powell. No, I didn't say that, sir.
    Mr. Forbes. Oh, you don't. Can you clarify what you--that's 
what I thought you said. Tell me what you----
    Rev. Powell. I would recommend that if at all possible 
teens be able to talk with their parents or legal guardians, 
yes.
    Mr. Forbes. Now, you also indicated--and correct me if I'm 
wrong here--that you don't know what the parent will do; is 
that correct?
    Rev. Powell. Sometimes one does not know what the parent 
will do.
    Mr. Forbes. Do you always know what the parent--do you 
ever--isn't it true that in many situations sometimes you think 
that a parent that would act good in a situation like that, 
when given the information that they have a teenage pregnancy, 
acts in a bad manner?
    Rev. Powell. Sometimes that occurs, yes.
    Mr. Forbes. And sometimes the ones that you might think 
would act bad, act in a good manner; is that correct?
    Rev. Powell. Yes.
    Mr. Forbes. Then why do you recommend that they talk with 
their parents if you have no idea at all what the outcome's 
going to be?
    Rev. Powell. Because the relationship between child and 
parents is an important relationship. It is often central in 
the child's life and in the parent's life, and certainly in the 
family life, how----
    Mr. Forbes. If the State legislature concludes just what 
you've said, that that relationship between a parent and a 
child is central and a central relationship, and they 
determine, for example, Virginia determines that the children 
in Virginia should recognize that central relationship and 
consult with their parents before they make a decision as 
substantial as having an abortion, do you think that ought to 
be honored?
    Rev. Powell. If Virginia has made that decision, Virginia 
has made that decision. But the Child Custody Act is talking 
about another adult taking that child across State lines in 
order to obtain an abortion.
    Mr. Forbes. My time's expired.
    Mr. Chabot. The gentleman's time is expired.
    The gentleman from Indiana, Mr. Hostettler is recognized 
for 5 minutes.
    Mr. Hostettler. I thank the Chairman. I find it intriguing, 
in looking over the list of witnesses from the last hearing, 
that the other side often complains about the mixture of 
religion with regard to the abortion debate, and looking on the 
list last time, the minority asked a Reverend Catherine 
Ragsdale, a Vicar of St. David's Episcopal Church, former chair 
of the board of the Religious Coalition for Reproductive Choice 
to be their one witness, and today we have the Reverend Lois M. 
Powell, United Church of Christ, on behalf of the Religious 
Coalition for Reproductive Choice, and I just think the record 
should reflect that I guess both sides are very interested in 
the compelling discussion of religion and abortion.
    That being the case, Rev. Powell, you say in your 
statement, quote: ``We can never forget that individual women, 
who themselves have been created in the image of God, struggled 
in each and ever instance,'' unquote. I couldn't agree with you 
more about women who have been created in the image of God, and 
thank goodness for my daughters, they've also been created in 
the image of their mother.
    But let me ask you something. At what point have these 
women that you speak of been created in the image of God?
    Rev. Powell. God creates life, I believe.
    Mr. Hostettler. At what point? The reason I'm saying is 
that court decisions have suggested that that question needs to 
be answered, and this is a good time to answer that question, 
and they've suggested that it's a theological discussion.
    Rev. Powell. It is a theological discussion, and there are 
varying theological opinions, and perspectives on that.
    Mr. Hostettler. Well, do you believe that God would have us 
be ignorant of when life beings, when it's created, in your 
words, in His image, in the image of God, I should say?
    Rev. Powell. I think that there is a difference between 
human life that is potential human life and human personhood, 
and the laws in our country cover human personhood. I do not 
believe a fetus is covered by laws that cover human personhood.
    Mr. Hostettler. And so a fetus is not created in the image 
of God?
    Rev. Powell. A fetus is becoming a person who is created in 
the image of God.
    Mr. Hostettler. Okay. So a fetus, a fetus is not created in 
the image of God. At what point does a fetus or a something 
become created in the image of God?
    Rev. Powell. I believe, along with the majority of people 
in the United Church of Christ that that begins in the terms of 
Roe v. Wade, that protectable human life begins at the point of 
in the third trimester.
    Mr. Hostettler. What did the Church of Christ say before 
1973?
    Rev. Powell. In 1969 it said that women ought to have full 
access to full reproductive health care including abortion.
    Mr. Hostettler. What did they say before 1969?
    Rev. Powell. The United Church of Christ is not a doctrinal 
denomination. We have a vast, wide divergent opinion in our--
among our members about this very question. I'm responding to 
you in terms of what my personal beliefs are, which are still 
in line with my denomination.
    Mr. Hostettler. So you would not suggest that they're based 
on scripture at all?
    Rev. Powell. Well, scripture can be read and interpreted in 
many, many ways.
    Mr. Hostettler. Okay, very good.
    Let me ask, Mrs. Farley, you, in response to the Chairman's 
question earlier, you talked about taking your daughter to New 
York. Did you elaborate on that? You took your daughter 
somewhere after the, after the situation in question.
    Ms. Farley. I had to take my daughter Crystal back to New 
York to the abortion clinic, and--for them to release her 
medical records. When she was at the hospital and signed a 
release of records, the physician that performed the abortion 
refused to release her records. So the physician here in 
Pennsylvania had to do the--an operation without the records.
    Mr. Hostettler. Very good.
    Rev. Powell, I have a question, a follow-up question for 
you. This 16-year-old woman in South Georgia, was she the 
subject of--was she the victim of statutory rape?
    Rev. Powell. No.
    Mr. Hostettler. Was she the victim of any type of rape?
    Rev. Powell. No.
    Mr. Hostettler. Okay. How is this young woman today?
    Rev. Powell. That was in 1992. I do not know. I have not 
followed up with her. I only received a note when they returned 
home that everything was going all right.
    Mr. Hostettler. And that was in 1992?
    Rev. Powell. Yes.
    Mr. Hostettler. 12 years ago. Do you know if she suffers 
any post-abortion problems?
    Rev. Powell. I have no knowledge of that, sir.
    Mr. Hostettler. No knowledge of that. Now, are you saying 
that, quote, later it says, ``I assured this young woman and 
her sister that God had not abandoned them but would remain 
with them always. I encouraged them to find a way eventually to 
talk with their parents, but not without a support of a third 
person who could mediate on their behalf,'' end quote. That's 
interesting, as the father of two daughters. Mrs. Farley went 
to New York to be with her daughter as a result, to follow up 
on this. But this third person you're talking about doesn't 
really have any long-term relationships such as yourself with 
this lady--with this friend from Georgia, this young woman from 
Georgia, does she--do you?
    Rev. Powell. I did not say who that third person would be, 
but it would be someone whom they trust. It might be a 
counselor at their high school, at her high school, someone who 
they have confidence could help mediate any discussion with 
their parents should they be fearing a reaction from their 
parents.
    Mr. Hostettler. Can I ask for one additional minute because 
I had a different question.
    Mr. Chabot. Without objection.
    Mr. Hostettler. My question was--I'm not necessarily 
talking about right after the event, when the case is wrapped 
up and you say you made a move on to the next case. But I'm 
saying long term. You're suggesting in your testimony that this 
issue that has in many cases a long-term impact, should be 
mediated by someone who has a much shorter-term interest in the 
situation than does a parent.
    Rev. Powell. No, I was not necessarily suggesting that.
    Mr. Hostettler. With all due respect, your testimony says 
after 1992 you have no idea what's going on in this woman's 
life, and as opposed to a parent, who has a lifelong commitment 
to a child. And your testimony is troubling because it suggests 
that in this short span of time, that this decision is a very 
short-term decision that has no lasting ramifications, that in 
fact after the case is wrapped up and the file is signed and 
you put it away in a folder, that that's it. What I'm 
suggesting is that's not it, that there are long-term impacts 
to these decisions, and that parents should be involved in that 
process from the very start.
    I thank the Chairman for his indulgence.
    Mr. Chabot. The gentleman's time has expired.
    There are no additional Members of the Committee to ask 
questions, so that will conclude the questioning this 
afternoon. I would ask unanimous consent that all Members have 
five legislative days to revise and extend their remarks and 
submit additional materials for the record.
    We want to thank all four of the folks that came here to 
testify today. We appreciate your testimony, wish you the best 
in the future, and thank all Members who participated this 
afternoon.
    If there is no further business to come before the 
Committee, we're adjourned. Thank you.
    [Whereupon, at 4:30 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

                 Prepared Statement of John C. Harrison

                            PROFESSOR OF LAW
                         UNIVERSITY OF VIRGINIA

    The Subcommittee has asked that I give my views concerning 
Congress' power to enact H.R. 1755, the Child Custody Protection 
Act.\1\
---------------------------------------------------------------------------
    \1\ This statement is substantially identical to the testimony I 
provided the Subcommittee with respect to H.R. 476 in the 107th 
Congress and H.R. 1218 in the 106th Congress.
---------------------------------------------------------------------------
    The proposed legislation would make it a federal crime knowingly to 
transport across a state line ``an individual who has not attained the 
age of 18 years . . . with the intent that such individual obtain an 
abortion, and thereby in fact [to abridge] the right of a parent under 
a law requiring parental involvement in a minor's abortion decision, in 
force in the State where the individual resides.''
    H.R. 1755 is a regulation of commerce among the several States. 
Commerce, as that term is used in the Constitution, includes travel 
whether or not that travel is for reasons of business. E.g., Caminetti 
v. United States, 242 U.S. 470 (1917). To transport another person 
across state lines is to engage in commerce among the States. There is 
thus no need to address the scope of Congress' power to regulate 
activity that is not, but that affects, commerce among the States, see, 
e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 
(1935); Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung, 
379 U.S. 294 (1964); United States v. Lopez, 514 U.S. 549 (1995).
    Under the Supreme Court's current doctrine, Congress can adopt 
rules concerning interstate commerce, such as this one, for reasons 
related primarily to local activity rather than commerce itself. United 
States v. Darby, 312 U.S. 100 (1941).\2\ Hence even if H.R. 1755 
reflected a substantive congressional policy concerning abortion and 
domestic relations it would be a valid exercise of the commerce power 
because it is a regulation of interstate commerce.
---------------------------------------------------------------------------
    \2\ Darby overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), which 
held unconstitutional a ban on interstate shipment of goods made with 
child labor. The Court in Hammer found that the statute was in excess 
of the commerce power, even though it regulated only interstate 
transportation, because its purpose was related to production, which is 
a local activity.
---------------------------------------------------------------------------
    Even under the more limited view of the commerce power that has 
prevailed in the past, H.R. 1755 would be within Congress' power. This 
legislation, unlike the child labor statute at issue in Hammer v. 
Dagenhart, does not rest primarily on a congressional policy 
independent of that of the State that has primary jurisdiction to 
regulate the subject matter involved. Rather, in legislation like this 
Congress would be seeking to ensure that the laws of the State 
primarily concerned, the State in which the minor resides, are complied 
with. In doing so Congress would be dealing with a problem that arises 
from the federal union, not making its own decisions concerning local 
matters such as domestic relations or abortion.
    H.R. 1755 in this regard resembles the Webb-Kenyon Act, Act of 
March 1, 1913, 37 Stat. 699, which dealt with a problem posed by then-
current dormant commerce clause doctrine for States with strong 
prohibition laws. Such States, under Leisy v. Hardin, 135 U.S. 100 
(1890), were limited in their power to regulate liquor that was shipped 
from out of state. Under the Webb-Kenyon Act, liquor was ``deprived of 
its interstate character'' (to use the old terminology) and its 
introduction into a dry State prohibited. The Court upheld the Webb-
Kenyon Act in Clark Distilling Company v. Western Maryland Railway 
Company and State of West Virginia, 242 U.S. 311 (1917).\3\
---------------------------------------------------------------------------
    \3\ The rule of the Webb-Kenyon Act currently appears in Section 2 
of the Twenty-First Amendment.
---------------------------------------------------------------------------
    My testimony is concerned with the Commerce Clause, not with the 
limitations on the regulation of abortion that the Court has found in 
the Due Process Clauses of the Fifth and Fourteenth Amendments. That 
focus is appropriate, I think, because H.R. 1755 does not raise any 
questions concerning the permissible regulation of abortion that are 
independent of the state laws that it is designed to effectuate. To the 
extent that a state rule is inconsistent with the Court's doctrine, 
that rule is ineffective and this bill would not make it effective. 
Hence it is unnecessary to ask, for example, whether subsection (b)(1) 
of proposed section 2431 of title 18 would constitute an adequate 
exception to a rule regulating abortion. Because constitutional limits 
on the States' regulatory authority are in effect incorporated into 
proposed Section 2431, subsection (b)(1) is in addition to any 
exceptions required by the Court's doctrine.
    This testimony on legal issues associated with H.R. 1755 is 
provided to the Subcommittee as a public service. It represents my own 
views and is not presented on behalf of any client or my employer, the 
University of Virginia.

                              ----------                              




                              ----------                              

        Prepared Statement of Congresswoman Ileana Ros-Lehtinen

    I would like to begin by commending Chairman Chabot for his 
outstanding leadership, and especially for holding this important 
hearing. Mr. Chairman, thank you for considering this vital piece of 
legislation.
    Abortion is perhaps one of the most life-altering and life-
threatening of procedures. It leaves lasting medical, emotional, and 
psychological consequences and, as noted by the Supreme Court, 
``particularly so when the patient is immature.''
    Although Roe v. Wade legalized abortion in 1973, it did not 
legalize the right for persons other than a parent or a guardian to 
decide what is best for a child. Nor did it legalize the right for 
strangers to place our children in a dangerous situation that is often 
described as being potentially fatal.
    In most schools, an underage child is prohibited from attending a 
school field trip without first obtaining a signed permission slip from 
a parent or legal guardian. An underage child is also unable to receive 
mild medication at school, such as aspirin, for a headache, unless the 
parent signs a release form permitting the school nurse to administer 
such medication. In some schools, a child may not even take a sex 
education class without parental consent, yet nothing forbids this same 
child from being taken across state lines, in reckless disregard for 
state laws, for the purpose of undergoing a life-altering abortion.
    There is outrage over cigarette ads which some say target minors. 
Where is the outrage over ads that clearly solicit business from 
frightened, confused girls for a complicated medical procedure?
    Designed to ensure children's safety, cosmetic ear piercing 
requires parental consent for fear that girls may pick up dangerous 
infections. Who ensures safety for young girls who are ill advised to 
disobey state laws and are taken to undergo a highly dangerous 
procedure that may tragically result in death or severe medical 
complications?
    As a mother of two teenage daughters, I realize the profound impact 
that a positive relationship with one's primary caregiver has on the 
development of our most important resource, our young people. I believe 
that programs that protect our youth are not only beneficial, but are 
also necessary for providing them with the skills and motivation 
necessary to live a productive life. We must ensure that our most 
precious natural resource, our children, are protected and afforded 
every opportunity.
    Last year, in the 107th Congress, I introduced the Child Custody 
Protection Act, which passed the House with a vote of 260-161. In the 
106th Congress, this legislation also passed with a vote of 270-159. In 
the 105th Congress, it passed with a vote of 276-150. Significant 
support for this legislation is not surprising because according to 
Zogby International, 66% of people surveyed believe that doctors should 
be ``legally required to notify the parents of a girl under the legal 
age who request an abortion.''
    My legislation, the Child Custody Protection Act, will make it a 
Federal misdemeanor to transport an underage child across state lines 
in circumvention of state and local parental notification laws, for the 
purpose of having an abortion. It will protect minors from exploitation 
form the abortion industry, promote strong family ties, and will help 
foster respect for state laws.
    Parental consent or parental notification laws may vary from state 
to state, but they are all made with the same purpose in mind: to 
protect frightened and confused adolescent girls from harm.
    I thank you, Mr. Chairman, for considering this vital piece of 
legislation, and I hope that this subcommittee will support H.R. 1755 
for the purpose of upholding safety laws designed by individual states; 
a bill that would protect parents' rights to be involved in decisions 
involving their minor children, and would work to strengthen the bonds 
of America's families.

                              ----------                              

 Prepared Statement of The American Academy of Pediatrics and Society 
                        for Adolescent Medicine

    This statement is submitted on behalf of the American Academy of 
Pediatrics (AAP), an organization of 60, 000 primary care 
pediatricians, pediatric medical subspecialists, and surgical 
specialists who are dedicated to the health, safety, and well being of 
infants, children, adolescents, and young adults, and the Society for 
Adolescent Medicine (SAM), a multidisciplinary organization of 1400 
professionals including physicians, nurses, psychologists, social 
workers, and others committed to improving the physical and 
psychosocial health and well-being of all adolescents. AAP and SAM 
appreciate the opportunity to submit to the House Judiciary Committee a 
statement for the record on H.R.1755, the Child Custody Protection Act.

                               OVERVIEW:

    The AAP and SAM firmly believe that parents should be involved in 
and responsible for assuring medical care for their children. Moreover, 
our organizations agree that parents ordinarily act in the best 
interests of their children and that minors benefit from the advice and 
the emotional support provided by parents. Both AAP and SAM strongly 
encourage adolescents to involve their parents or other trusted adults 
in important health care decisions. This includes those regarding 
pregnancy and pregnancy termination. Research confirms that most 
adolescents do so voluntarily. This is predicated not by laws but on 
the quality of their relationships. By its very nature family 
communication is a family responsibility. Adolescents who live in warm, 
loving, caring environments, who feel supported by their parents, will 
in most instances communicate with their parents in a crisis, including 
the disclosure of a pregnancy.
    The role of pediatricians and other adolescent health professionals 
is to support, encourage, strengthen and enhance parental communication 
and involvement in adolescent decisions without compromising the ethics 
and integrity of the relationship with adolescent patients.
    The stated intent of those who support mandatory parental consent 
and notification laws is that such laws enhance family communication as 
well as parental involvement and responsibility. However, the evidence 
does not support that these laws have that desired effect. To the 
contrary, there is evidence that these laws may have an adverse impact 
on some families and that it increases the risk of medical and 
psychological harm to adolescents. The American Academy of Pediatrics 
reports, ``[i]nvoluntary parental notification can precipitate a family 
crisis characterized by severe parental anger and rejection of the 
minor and her partner. One third of minors who do not inform parents 
already have experienced family violence and fear it will recur. 
Research on abusive and dysfunctional families shows that violence is 
at its worse during a family member's pregnancy and during the 
adolescence of the family's children.''

                        CONFIDENTIALITY OF CARE:

    Confidentiality of health care services is an important element in 
assuring adolescents' access to care--and it is compromised when 
adolescents are required to seek parental consent. The AAP and SAM, 
strongly believe that young people must have access to confidential 
health care services--including reproductive health care and abortion 
services. Every state has laws that provide for confidential access to 
some services for young people, including sexual assault, STDs, 
substance abuse, mental health counseling, or reproductive health care. 
Concern about confidentiality is one of the primary reasons young 
people delay seeking health services for sensitive issues, whether for 
an unintended pregnancy or for other reasons. While parental 
involvement is very desirable, and should be encouraged, it may not 
always be feasible and it should not be legislated. Young people must 
be able to receive essential health care expeditiously and 
confidentially.
    Most adolescents will seek medical care with their parent or 
parents' knowledge. However, making services contingent on mandatory 
parental involvement (either parental consent or notification) may 
negatively affect adolescent decision-making. Mandatory parental 
consent or notification reduces the likelihood that young people will 
seek timely treatment for sensitive health issues. In a regional survey 
of suburban adolescents, only 45 percent said they would seek medical 
care for sexually transmitted diseases, drug abuse or birth control if 
they were required to notify their parents.
    A teen struggling with concerns over his or her sexual health may 
be reluctant to share these concerns with a parent for fear of 
embarrassment, disapproval, or possible violence. A parent or relative 
may even be the cause or focus of the teen's emotional or physical 
problems. The guarantee of confidentiality and the adolescent' s 
awareness of this guarantee are equally essential in helping 
adolescents to seek health care.
    For these reasons, physicians and other adolescent health 
professionals strongly support adolescents' ability to access 
confidential health care. A national survey conducted by the American 
Medical Association (AMA) found that physicians favor confidentiality 
for adolescents. A regional survey of pediatricians showed strong 
backing of confidential health services for adolescents, with 75 
percent favoring confidential treatment. Pediatricians and other 
adolescent health professionals describe confidentiality as 
``essential'' in ensuring that patients share necessary and factual 
information with their health care provider. This is especially 
important if we are to reduce the incidence of adolescent suicide, 
substance abuse, sexually transmitted diseases and unintended 
pregnancies.
    Many influential health care organizations support the provision of 
confidential health services for adolescents. Here is what they say:
    The American Academy of Pediatrics. ``A general policy guaranteeing 
confidentiality for the teenager, except in life-threatening 
situations, should be clearly stated to the parent and the adolescent 
at the initiation of the professional relationship, either verbally or 
in writing.''
    The Society for Adolescent Medicine. ``The most practical reason 
for clinicians to grant confidentiality to adolescent patients is to 
facilitate accurate diagnosis and appropriate treatment. . . . If an 
assurance of confidentiality is not extended, this may create an 
obstacle to care since that adolescent may withhold information, delay 
entry into care, or refuse care.''
    The American Medical Association. ``The AMA reaffirms that 
confidential care for adolescents is critical to improving their 
health. The AMA encourages physicians to involve parents in the medical 
care of the adolescent patient, when it would be in the best interest 
of the adolescent. When in the opinion of the physician, parental 
involvement would not be beneficial, parental consent or notification 
should not be a barrier to care.''
    The AMA also notes that, ``because the need for privacy may be 
compelling, minors may be driven to desperate measures to maintain the 
confidentiality of their pregnancies. They may run away from home, 
obtain a ``back alley'' abortion, or resort to a self-induced abortion. 
The desire to maintain secrecy has been one of the leading reasons for 
illegal abortion since . . . 1973.''
    American College of Physicians. ``Physicians should be 
knowledgeable about state laws governing the rights of adolescent 
patients to confidentiality and the adolescent's legal right to consent 
to treatment. The physician must not release information without the 
patient's consent unless required by the law or if there is a duty to 
warn another.
    The American Public Health Association. APHA ``urges that . . . 
confidential health services (be) tailored to the needs of adolescents, 
including sexually active adolescents, adolescents considering sexual 
intercourse, and those seeking information, counseling, or services 
related to preventing, continuing or terminating a pregnancy.''
    Of course, it is important for young people who are facing a 
health-related crisis to be able to turn to someone dependable, someone 
they trust, to help them decide what is best. Many times that person is 
a parent. Teenagers facing a crisis pregnancy should be encouraged to 
involve a parent, and most do so. In fact, over 75 percent of pregnant 
teens under age 16 involve at least one parent in their decision, even 
in states that do not mandate them to do so. In some populations as 
many as 91% of teenagers younger than 18 years voluntarily consulted a 
parent or ``parent surrogate'' about a pregnancy decision.
    All too often, however, young women know that their parents would 
be overwhelmed, angry, distraught or disappointed if they knew about 
the pregnancy. Fear of emotional or physical abuse, including being 
thrown out of the house, are among the major reasons teenagers say they 
are afraid to tell their parents about a pregnancy. Young women who are 
afraid to involve their parents very often turn to another adult in 
times of difficulty. One study shows that, of young women who did not 
involve a parent in their abortion decision, over half turned to 
another adult; 15 percent of these young women involved a stepparent or 
other adult relative.

       THE IMPLICATIONS OF H.R. 1755 FOR YOUNG WOMEN, FAMILIES, 
                 STATES, AND HEALTH CARE PROFESSIONALS:

    H.R.1755 would harm young women who are most afraid to involve 
their parents in an abortion decision and who most need the support of 
other adults in their lives. Instead of encouraging young people to 
involve adults whom they trust, the law would discourage such 
communication. The bill would have the unintentional outcome of placing 
a chilling effect on teenagers' ability to talk openly with adults--
including family members and medical providers--because it sends a 
message that adults who help young people grapple with difficult 
decisions are criminals. This disincentive is extremely dangerous for 
those young people most in need of support and guidance in a difficult 
time, particularly when they cannot involve their parents.
    This legislation is not only troublesome with regard to its effect 
on confidential medical care for teens; it is also a harmful and 
potentially dangerous bill from the perspective of its intent and its 
potential effect on states' and individuals' rights.
    As currently written, H.R. 1755, in effect would apply one state's 
laws to another state. Young women would be required to abide by the 
law of the ``original'' state (the state where the young woman resides) 
regardless of where they seek medical care. There are many reasons why 
women travel to obtain an abortion, including concerns about 
confidentiality and consent. An adult who accompanies a young woman to 
a legal, accessible, and affordable abortion provider would be placed 
in the position of risking criminal sanctions.
    Applying the laws from one state to young women who seek medical 
care in another state, as H.R.1755 would do, raises important questions 
about the rights of states and of health care professionals. Physicians 
and other health professionals, have the responsibility to refer 
patients to the best care possible. With any other medical procedure 
physicians and other health professionals are not subject to guidelines 
that prohibit proceeding with medical care in one state based on 
guidelines from the referring state. In addition, in certain 
metropolitan areas physicians have a license to practice in more than 
one jurisdiction, such as Washington, D.C., Maryland, and Virginia. In 
other metropolitan areas that cross state lines most of the health 
services are in one state, and not the other. Imposition of the 
requirements contained in H.R.1755 not only would burden families but 
also would result in significant disruption of the relationships 
between health care professionals and their patients, too. It could 
also threaten other adults who help teenagers. As an example, consider 
the Greater Metropolitan Washington community--what would happen if a 
teen took the Metro subway or bus from Falls Church, Virginia to 
Washington, D.C.? Would an adult who loaned the teenager Metro fare be 
liable?
    Furthermore, this law would be extraordinarily difficult to 
enforce. For example, does the law apply only to women who travel to 
another state in order to exercise their constitutional right to seek 
reproductive health care? The AAP and SAM are concerned that there 
could also be implications for young women who are temporarily living 
outside their home state because of travel, education or employment. 
The legal ramifications could be severe for an adult traveling with a 
young woman even if the adult believes that the home state parental 
consent or notification laws have been followed.
    Moreover, AAP and SAM are troubled by the legislation's potential 
effect on the responsibilities of the health care providers involved. 
Health care providers have a ``fiduciary duty'' (the highest degree of 
a legal obligation or duty) to protect the confidentiality of their 
patients, and a number of federal and state laws mandate protection of 
the confidentiality of medical records and information. One of the most 
common requirements is found in state licensing statues for physicians. 
Often, a physician who violates a patient's confidentiality is subject 
to disciplinary action, including revocation of his/her license. Many 
states mandate that health records must be kept confidential and cannot 
be released without the patient's consent. AAP and SAM are concerned 
that Congress may put health care providers in the position where they 
must violate their legal or ethical confidentiality obligations in 
order to meet the requirements imposed by a neighboring state.

                               CONCLUSION

    In conclusion, AAP and SAM reiterate a statement previously made by 
a former president of the Society for Adolescent Medicine: ``[C]learly 
the proposed bill is designed to eliminate this [abortion] option for 
many adolescents. Adolescents who cannot rely on one or both parents to 
help them through the trauma of a pregnancy and who, for legal or 
geographical reasons, may need to go to an adjoining state for 
termination, are effectively precluded from receiving help from those 
(such as other relatives, health professionals, or even the clergy) who 
would be there to help them. In essence, this law would put adolescents 
in the position of having to take care of themselves (possibly 
traveling long distances in the process), without supportive care 
during a traumatic time in their lives.''

                            OTHER RESOURCES

        1.  Gans, J.E. McManus, M.A., Newacheck, P.W. Profiles of 
        Adolescent Health Services, Vol. 2, Adolescent Health Care: Use 
        Costs and Problems of Access AMA:1991, Wash., D.C. at 52-53.

        2.  Marks A. Malizio, J. Hoch, J. Brody, R. & Fisher, M., 
        Assessment of health needs and willingness to utilize health 
        care resources of adolescents in a suburban population, J of 
        Pediatrics 1983; 102: 456-460.

        3.  Resnick, M.D., Litman, T.J. and Blum, R.W. Physicians 
        attitudes towards 1confidentiality of treatment for 
        adolescents: findings from the Upper Midwest Regional Survey, J 
        of Adol. Health, 1992; 13:616-22.

        4.  Gans, J.E. Compendium on Reproductive Health Issues 
        Affecting Adolescents, AMA:1996, Wash. D.C. at 10.

        5.  American College of Legal Medicine, Legal Medicine at 278 
        (1995).

        6.   Colo.Rev.Stat 25-4-1409 (2) (1995). The statute does not 
        address physician protection of adolescent patients' 
        confidentiality.

        7.  American Medical Association. Council on Ethical and 
        Judicial Affairs. ``Mandatory Parental Consent to Abortion.'' 
        JAMA. Vol. 269. No.1, January 6, 1993 p. 83.

                              ----------                              


                MATERIAL SUBMITTED BY CONGRESSMAN NADLER

    July 19, 2004

    U.S. House of Representatives
    Washington, DC 20515

    Dear Representative:

    We, the undersigned organizations dedicated to protecting 
reproductive rights and enhancing women's health, write to express our 
opposition to H.R.1755, the so-called ``Child Custody Protection Act.''

    The ``Child Custody Protection Act'' would make it a federal crime 
for any person, other than a parent, to accompany a young woman across 
a state line for the purpose of obtaining abortion care, if the home 
state's parental-involvement law has not been met.

    This bill poses a serious threat to young women's health. Most 
young women who are faced with the decision to have an abortion already 
involve their parents in their decision. Even in states in which 
mandatory parental involvement is not required, over 60 percent of 
parents knew of their daughter's pregnancy. And among young women who 
did not tell their family, 30 percent had experienced or feared 
violence in their family or feared being forced to leave home.

    Those young women who decide they cannot involve a parent often 
seek help and guidance from other trusted adults. Unfortunately, this 
bill would deter young women from seeking assistance from a trusted 
adult. Under this legislation, grandparents, aunts, uncles, adult 
siblings or clergy could be prosecuted and jailed simply for supporting 
a young woman in crisis who seeks reproductive health services - even 
if that person does not intend, or even know, that the parental-
involvement law of the state of residence has not been followed.

    Moreover, this legislation is unconstitutional and tramples on some 
of the most basic principles of federalism. In the words of legal 
scholars Laurence Tribe of Harvard University and Peter J. Rubin of 
Georgetown University, the legislation ``violates the rights of states 
to enact and enforce their own laws governing conduct within their 
territorial boundaries, and the rights of the residents of each of the 
United States and of the District of Columbia to travel to and from any 
state of the Union for lawful purposes, a right strongly affirmed by 
the Supreme Court . . .''

    While we share the belief that young women should involve parents 
when facing difficult reproductive-health choices, in situations where 
such communication is not possible, we believe young women should be 
encouraged to involve other trusted adults. Unfortunately, this bill 
does not accomplish that goal. In fact, it does the exact opposite by 
forcing women to face important decisions alone, without any help. We 
urge you to stand against this dangerous legislation.

    Sincerely,

    Advocates for Youth
    American Association of University Women
    American Civil Liberties Union
    American Humanist Association
    American Medical Women's Association
    Center for Reproductive Rights
    Central Conference of American Rabbis
    Disciples for Choice
    Disciples Justice Action Network
    Law Students for Choice
    Legal Momentum (the new NOW Legal Defense and Education Fund)
    NARAL Pro-Choice America
    National Abortion Federation
    National Council of Jewish Women
    National Family Planning and Reproductive Health Association
    National Organization for Women
    National Partnership for Women & Families
    National Women's Law Center
    People For the American Way
    Physicians for Reproductive Choice and Health(r)
    Planned Parenthood Federation of America
    Population Connection
    Religious Coalition for Reproductive Choice
    Reproductive Health Technologies Project
    Sexuality Information and Education Council of the United States
    The Alan Guttmacher Institute
    Union for Reform Judaism
    Unitarian Universalist Association of Congregations

                              ----------                              

    Prepared Statement of The Rev. Doctor Katherine Hancock Ragsdale

                            EPISCOPAL PRIEST
                 ON BEHALF OF NARAL PRO-CHOICE AMERICA

    Ladies and gentlemen of the subcommittee, thank you for the 
opportunity to submit this testimony for the record. My name is 
Katherine Hancock Ragsdale. I am an Episcopal priest and former chair 
of the board of the Religious Coalition for Reproductive Choice, the 
31-year-old coalition of 39 national religious and religiously 
affiliated organizations from 15 denominations and faith traditions. I 
also serve on the board of NARAL Pro-Choice America. I am the vicar, or 
priest in charge, of a congregation in a very small town in 
Massachusetts. It is primarily as a parish priest that I offer this 
testimony. As a parish priest it is my privilege to be intimately 
involved in the lives of a variety of people who struggle every day 
with what it means be ethical, morally responsible people of God in an 
always complex, frequently confusing, sometimes difficult, and 
occasionally tragic modern world. It is my job, and my joy, to try to 
help, and that's why I'm compelled to share this story with you.
    I recall vividly a day when I left my home near Cambridge, 
Massachusetts, and drove to one of the economically challenged cities 
to the north of me to pick up a fifteen-year-old girl and drive her to 
Boston for an 8 a.m. appointment for an abortion. I didn't know the 
girl - I knew her school nurse. The nurse had called me a few days 
earlier to see if I knew where she might find money to give the girl 
for bus fare to and cab fare home from the hospital. I was stunned - a 
fifteen-year-old girl was going to have to get up at the crack of dawn 
and take multiple buses to the hospital alone? The nurse shared my 
concern but explained that the girl had no one to turn to. She feared 
for her safety if her father found out and there was no other relative 
close enough to help. There was no one to be with her. So I went. And 
during our hour-long drive to Boston we talked.
    She told me about her dreams for the future - all the things she 
thought she might like to do and be. I talked to her about the kind of 
hard work and personal responsibility it would take to get there.
    She told me about the guilt she felt for being pregnant - even 
though the pregnancy was the result of a date rape. She didn't call it 
that. She just told me about the really cute guy from school who seemed 
so nice and about how pleased she was when he asked her out. And then, 
she told me, he asked her to have sex with him and she refused. And he 
asked her again...and again. And then he pushed her down and forced 
himself on her. But he didn't pull a gun, or break any bones, or cause 
any serious injury - other than a pregnancy and a wounded spirit - so 
she didn't know to call it rape. She figured the fault was hers for not 
somehow having known that he wasn't really the ``nice boy'' he had 
seemed. And I talked to her about the limits of personal 
responsibility; about how not everything that happens to us is our own 
fault, or God's will; and about how much God loves her.
    Then I took her inside and turned her over to some very kind 
nurses. I went downstairs to get a couple of prescriptions filled for 
her. I paid for the prescriptions after I was informed that they'd 
either need the girl's father's signature in order to charge them to 
his insurance, or the completion of a pile of forms that looked far too 
complex for any fifteen-year-old to have to deal with. I drove her back 
to her school and walked her to the nurse's office and turned her over 
to someone who would look out for her for the rest of the day. And then 
I drove home wondering how many bright, funny, thoughtful girls, girls 
brimming with promise, were not lucky enough to know someone who knew 
someone who could help. I despaired that in a society as rich and, 
purportedly, reasonable and compassionate as ours, any young woman 
should ever find herself in such a position. It never occurred to me 
that anyone would ever try to criminalize those who were able and 
willing to help.
    Although New Hampshire was closer to that girl's home than Boston, 
as it happened, I did not take her across state lines. Nor did I, to my 
knowledge, break any laws. But if either of those things had been 
necessary in order to help her, I would have done them. And if helping 
young women like her should be made illegal I will, nonetheless, 
continue to do it. I have no choice because some years ago I stood 
before an altar and a Bishop and the people of God and vowed ``to 
proclaim by word and deed the Gospel of Jesus Christ and to fashion 
(my) life in accordance with its precepts . . . to love and serve the 
people among whom (I) work, caring alike for young and old, strong and 
weak, rich and poor.'' I have no choice. Even if you tell me that it is 
a crime to exercise my ministry, I will have no choice. And, I assure 
you, I am not alone.
    I find it troubling, to say the least, that we should find 
ourselves at odds over this issue. Presumably we all want the same 
things. We want fewer unplanned pregnancies and we want young people 
who face problems, particularly problems that have to do with their 
health and their futures, to receive loving support and counsel from 
responsible adults. This bill, however, doesn't help to achieve those 
goals. It doesn't resolve the problems with which we are faced. It 
doesn't even address those problems. This is not a bill about 
solutions; it's a bill about punishments. And, while it is the rare 
saint who is not sometimes subject to punitive impulses, such impulses 
are, nonetheless, venal and beneath the dignity of Americans or of any 
member of the human family.
    We should be talking, instead, about reality-based, age-appropriate 
sex education for all young people, and about safe, affordable, and 
available contraception. We should be figuring out how we impress upon 
boys that ``no'' really does mean ``no,'' and about how to teach girls 
to defend themselves. We should be talking about education and 
economics; about child care and welfare; about violence at home and on 
the streets; not about new ways to punish victims and those who care 
for them.
    Yet, no matter how intense and successful our efforts, there will 
still be minors who face unplanned pregnancies. And some of them will 
still decide that abortion is the best - sometimes the most responsible 
- option for them. And then, as now, we will want them to be able to 
turn to their parents for love and support and guidance.
    That is, I have to assume, the noble motive behind this bill. We 
are appalled at the thought of any girl having to face and make such a 
decision without the help of her parents, as well we should be. Still, 
several years ago the Episcopal Church passed a resolution opposing any 
parental consent or notification requirements that did not include 
provision for non-judicial bypass. In our view, any morally responsible 
notification or consent requirement had to allow young women to turn 
for help to a responsible adult other than a parent or a judge - to go 
instead to a grandparent or an aunt, a teacher or neighbor, a 
counselor, minister or rabbi. Our resolution encourages the very things 
this bill would outlaw. Sure, we want young people to be able to turn 
to their parents. But when they can't or won't we want to make it 
easier, not harder, for them to turn to other responsible adults.
    We adopted this resolution (by a large majority) not because we 
don't care about parental involvement. The Episcopal Church wants young 
women to be able to turn to their parents for help when faced with 
serious decisions. I want that. I'm sure members of Congress want that. 
And, in fact, most girls - more than 60 percent - do turn to their 
parents. We'd like it to be 100 percent. But we know that no one can 
simply legislate healthy communication within families. And we know 
that, of those girls who do not involve their parents, many feared 
violence or being thrown out of their home. Statistical and anecdotal 
evidence demonstrates that, in far too many American homes, such fears 
are not unfounded. There is no excuse good enough to justify 
legislation or regulation that further imperils young people who are 
already living in danger in their own homes.
    Even if we were to find ourselves drained of the last vestiges of 
our compassion there would still be a self-interested reason to fear 
and oppose this legislation. It imperils all young women, even those in 
our own families. One hopes that none of the young women we know and 
love has anything to fear from their parents. We may even be quite 
confident that this is true. But let's not kid ourselves. Even in the 
happiest and healthiest of families teens sometimes cannot bring 
themselves to confide in their parents. Even in families like Rebecca 
Bell's. Perhaps you remember her story. Becky's parents report that 
they had a very good and loving relationship with their daughter. They 
believed that there was nothing that she couldn't or wouldn't tell 
them. But when Becky became pregnant she apparently couldn't stand the 
thought of disappointing and hurting the parents she loved. And she 
lived in a state that required parental notification. So she had an 
illegal abortion - and she died.
    Should Becky Bell have talked to her parents? I think so. Did she 
exercise poor judgment? Absolutely. But, sisters and brothers, I can 
tell you, teenagers will, from time to time, exercise poor judgment. 
It's a fact of nature and there is no law Congress can pass that will 
change that. The penalty should not be death.
    Oppose this bill. Oppose it because no matter how good the 
intentions of its authors and supporters, it is, in essence, punitive 
and mean-spirited. Oppose it out of compassion for those young people 
who cannot, for reasons of their safety, comply with its provisions. If 
all else fails, oppose it for purely selfish reasons. Oppose it because 
you don't want your daughter, or granddaughter, or niece to die just 
because she couldn't face her parents and you had outlawed all her 
other options.
    Thank you for the opportunity to provide this testimony.

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