[Senate Hearing 108-619]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-619
 
                   THE CHILD CUSTODY PROTECTION ACT:
            PROTECTING PARENTS' RIGHTS AND CHILDREN'S LIVES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 3, 2004

                               __________

                          Serial No. J-108-78

                               __________

         Printed for the use of the Committee on the Judiciary







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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director





                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    96
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   101
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1
    prepared statement...........................................   140

                               WITNESSES

Collett, Teresa Stanton, Professor of Law, University of St. 
  Thomas School of Law, Minneapolis, Minnesota...................    16
Ensign, Hon. John, a U.S. Senator from the State of Nevada.......     3
Farley, Joyce, Dushore, Pennsylvania.............................     6
Harrison, John C., Professor of Law, University of Virginia, 
  Charlottesville, Virginia......................................    13
Lane, Crystal, Dushore, Pennsylvania.............................     7
Ragsdale, Reverend Doctor Katherine Hancock, St. David's 
  Episcopal Church, Pepperell, Massachusetts, on behalf of the 
  NARAL Pro-Choice America and the Religious Coalition for 
  Reproductive Choice America and the Religious Coalition for 
  Reproductive Choice............................................     8
Rubin, Peter J., Professor of Law, Georgetown University, 
  Washington, D.C................................................    14

                         QUESTIONS AND ANSWERS

Responses of Teresa Collett to questions submitted by Senator 
  Sessions.......................................................    25

                       SUBMISSIONS FOR THE RECORD

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, 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, Reproductive Health Technologies Project, 
  Sexuality Information and Education Council of the United 
  States, Alan Guttmacher Institute, Union for Reform Judaism, 
  Unitarian Universalist Association of Congregations, joint 
  letter.........................................................    28
Alan Guttmacher Institute, Susheela Singh, Vice President for 
  Research, Washington, D.C., letter and attachments.............    30
American Academy of Pediatrics and Society for Adolescent 
  Medicine, statement............................................    32
American Civil Liberties Union, Laura W. Murphy, Director, 
  Washington, D.C., Memorandum and attachments...................    39
Center for Reproductive Rights, New York, New York, statement....    61
Collett, Teresa Stanton, Professor of Law, University of St. 
  Thomas School of Law, Minneapolis, Minnesota, prepared 
  statement......................................................    74
Ensign, Hon. John, a U.S. Senator from the State of Nevada, 
  prepared statement.............................................    88
Farley, Joyce, Dushore, Pennsylvania, prepared statement.........    90
Harrison, John C., Professor of Law, University of Virginia, 
  Charlottesville, Virginia, prepared statement..................    92
Lane, Crystal, Dushore, Pennsylvania, prepared statement.........    98
Philip, Diana, Legal Advocate, Austin, Texas, prepared statement.   105
Ragsdale, Reverend Doctor Katherine Hancock, St. David's 
  Episcopal Church, Pepperell, Massachusetts, on behalf of the 
  NARAL Pro-Choice America and the Religious Coalition for 
  Reproductive Choice America and the Religious Coalition for 
  Reproductive Choice, prepared statement........................   116
Roberts, Eileen, Mothers and Advocates for Mothers Alone, (MAMA) 
  Inc., Fredericksburg, Virginia, prepared statement.............   121
Rubin, Peter J., Professor of Law, Georgetown University, 
  Washington, D.C................................................   123
Zabin, Laurie Schwab, Ph.D., Johns Hopkins University, Baltimore, 
  MD, prepared statement.........................................   143


   THE CHILD CUSTODY PROTECTION ACT: PROTECTING PARENTS' RIGHTS AND 
                            CHILDREN'S LIVES

                              ----------                              


                         THURSDAY, JUNE 3, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:15 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions 
presiding.
    Present: Senators Sessions and Ensign [ex officio.]

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Senator Sessions. We will come to order. I just have to 
extend an apology for the extended time that vote took. We have 
a little courtesy to give a few extra minutes, and they gave 
too much time as far as I am concerned in letting everybody 
make sure they got to cast their vote on a 95 to nothing vote.
    And they have two more, so I cast my second vote, and it 
looks like we will have to go back for another vote. But I 
thought, with your indulgence, I would at least make an opening 
statement and maybe we can get started, and then maybe just one 
more short break before the interruption.
    Today's hearing will take testimony on the Child Custody 
Protection Act, offered by our colleague and friend, Senator 
John Ensign. I am pleased to be a cosponsor of the bill. In 
fact, I was a cosponsor of the bill about 6 years ago when 
Senator Spence Abraham first offered it. We will hear both 
sides of the issue today from excellent panels.
    The proposed legislation deals with what I think is a very 
real problem involving interstate transportation of minor 
children for the purposes of abortion, in violation of State-
protected custody rights of parents, and the well-being of 
children. It is not about abortion. It is about the custody 
rights of parents.
    This legislation will be a step toward defeating the legal 
loophole that now exists. It is a loophole that cheats parents 
out of their basic right to know about the health concerns of 
their minor children. This legislation does not expand or 
contract existing State laws or appear in any way to contradict 
Supreme Court precedent involving minor children and abortion. 
It would simply deal with how to give effect to 
constitutionally valid parental custody rights in our mobile 
society.
    The Supreme Court has made it clear in Planned Parenthood 
v. Casey, a decision that expanded abortion rights, that it is 
proper for a State to declare that an abortion should not be 
performed on a minor child unless a parent is consulted. Many 
States require parental consent before a principal or a teacher 
can hand out an aspirin, and many States have concluded that to 
perform an abortion on a minor without parental consent or 
notice is a very dramatic interference on parents' protected 
interests.
    It is the parents, after all, who will have to monitor 
their daughter's post-abortion medical condition. They love the 
child and they want her to have the best care. They have every 
right to not want some older man or some other person, for 
example, who has no real interest in their daughter's well-
being making serious health decisions, or leading her into 
serious health decisions without their knowledge at all.
    In my view, the right of parents to be involved in these 
major decisions is fundamental and ought not be lightly 
transgressed. State parental consent and notification statutes 
are a legitimate step to protect basic parental rights. 
However, we do not even need to discuss the merits of parental 
consent legislation because the issue before us today is not 
whether States should have such laws. The issue before us today 
is whether or not we should allow the circumvention of such 
constitutional State laws which are designed to protect 
children's health and parental rights.
    There is direct evidence that third parties are interfering 
with protected parental rights by taking minor children for the 
purpose of an abortion from a State where parents have to be 
notified, to another State that does not have a notification 
law. This bill would preclude these third parties. It is not a 
radical or extreme proposal. Rather, it is just good public 
policy.
    This is the type of legislation that even some pro-choice 
advocates agree with. Dr. Bruce Lucero, a former abortionist 
from Alabama, has performed 45,000 abortions. He supports this 
legislation. In a New York Times op ed he wrote that, 
``dangerous complications'' are more likely to result when 
parents are not involved in these out-of-State abortions.
    We will hear evidence today that demonstrates that this 
issue does not involve a few isolated cases. An attorney for 
the Center for Reproductive Law and Policy, Kathryn Kolbert, 
has stated, ``There are thousands of minors who cross state 
lines for an abortion every year and who need assistance from 
adults to do that.''
    We have seen several examples of abortion clinics which 
openly place advertisements in the yellow pages of phone books, 
in nearby States that have parental consent statutes. These 
advertisements proudly proclaim ``no parental consent.''
    Let me just show you a couple of these: ``Abortion: No 
Waiting Period, No Parental Consent,'' and this was in the 
Pennsylvania phone book yellow pages encouraging people to go 
across the State line to Maryland. Pennsylvania has a parental 
notification statute.
    Here is another one from the Pennsylvania phone book: ``No 
Waiting Period, No Parental Consent Required.''
    ``No Parental Consent or Waiting Period,'' and this was an 
ad for a Buffalo, New York abortion clinic in the Erie, 
Pennsylvania yellow pages.
    This is an ad from a Phillipsburg, New Jersey, clinic, 
again no parental consent.
    You have another one there. This ad is located on the 
website for an Englewood, New Jersey clinic. However, it is 
located on the page for Pennsylvania abortion clinics.
    This is on the Pennsylvania website abortionclinic.com. 
These ads all target Pennsylvania teenagers and entice them to 
surrounding States. It doesn't just happen in Pennsylvania. On 
the State pages for 23 States with parental involvement laws, 
on the abortionclinic.com website, there are ads for abortion 
clinics in States without these laws. So we have an open policy 
of encouraging transportation in interstate commerce to evade 
State laws. It is the policy of these clinics to do so.
    Some will argue the bill is unconstitutional and we will 
hear testimony on that today, but the Supreme Court has upheld 
parental notification and consent laws and this bill would 
simply help enforce those. It does nothing more than prohibit 
the evasion of the existing State constitutional statutes.
    I was a Federal prosecutor for nearly 15 years and I 
remember the long-time Federal statute, the Mann Act, that 
prohibited the interstate transportation of women across State 
lines for the purposes of prostitution. That law has been 
upheld numerous times since the early 1900's.
    Similarly, as a prosecutor I prosecuted in Federal court 
those who transported in interstate commerce stolen motor 
vehicles. It was not the theft of the vehicle that was the 
basis for the Federal crime. It was the transportation in 
interstate commerce of a vehicle that has been stolen. That was 
the gravamen of the offense.
    So this bill is narrow in scope. It does not prohibit 
interstate abortions. It does not invalidate any State laws. It 
does not establish a right to parental involvement for 
residents of any other State that does not already have a 
parental involvement law. It doesn't even attempt to regulate 
the activities of the pregnant minor herself. It only reaches 
the conduct of outside parties who wrongfully usurp the rights 
of parents that are guaranteed by State law.
    I have concluded that this bill is constitutional. We will 
have opposition to that today, and I think it deserves serious 
consideration and we will look at it carefully. I look forward 
to the testimony today as we continue to study this 
legislation. If any flaws exist, we would like to know what 
they are and seek to improve the statute. I know Senator Ensign 
would agree with that. I do, however, believe that minor 
children are being abused through the evasion of State law, and 
that Congress should act to place the responsibility for a 
child's care where that responsibility belongs, with the 
parents.
    Senator Ensign, thank you for introducing this legislation 
and pursuing it. Thank you for your leadership, in general, in 
the Senate, and we would be glad to hear from you at this time.

STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF 
                             NEVADA

    Senator Ensign. Well, thank you, Mr. Chairman, and thank 
you for holding this hearing on what I believe is very 
important legislation. If I may ask that my full statement be 
made part of the record and then I will just try to summarize.
    Senator Sessions. It will.
    Senator Ensign. Mr. Chairman, there are few issues in 
America that bring out as much emotion as abortion. There are 
good people on both sides of this issue and there are a lot of 
reasons that people approach it from different angles. When it 
comes to separating out what are reasonable restrictions, there 
are many issues that we should be able to come to agreement on 
and this legislation is a prime example.
    USA Today and CNN, which are certainly not known as 
conservative organizations, conducted a poll that found that 
almost three-quarters of Americans support the idea of parental 
consent prior to a minor having an abortion. Judicial bypass 
laws have been written across the country for those cases where 
there is rape or incest involved within a family, because 
minors may be afraid to go to one of the parents because of 
abuse problems. There are ways to have the judicial system 
involved so that there are responsible people ensuring the 
safety of the minor. But these laws are set up in such a way 
that anyone, just because they say they care, can come and take 
somebody across State lines.
    Make no mistake about it, abortion is a surgical procedure. 
It may be a simple surgical procedure, but it is a surgical 
procedure.
    I have three children. My children cannot receive simple 
medication at school without my permission. A simple medication 
like aspirin given to the wrong person, even just a simple 
antibiotic, can cause some people to have a harmful reaction. 
That is one of the reasons that parental permission is so 
important because the parents are the most intimately involved 
people in that child's life. They know their medical history 
the best and are also the people that will do the follow-up 
care, for whatever the medical condition is.
    If a child is taken across State lines for a surgical 
abortion and has complications that night or the next day, now 
this little girl is at home. She was afraid to tell her parents 
about the abortion in the first place and so a friend, or maybe 
it was the 20-something-year-old boyfriend, took the girl 
somewhere to have an abortion. Two-thirds of the pregnancies 
for under-age girls are fathered by guys over 20 years of age.
    It is in that person's best interest, or at least they 
think it is in their best interest, to talk the little girl 
into having an abortion and to take them across state lines. 
But where is that person when the girl goes home and starts 
bleeding and has complications, or has an infection? This 
little girl is now afraid to tell her parents because not only, 
one, she was afraid of telling them about the pregnancy in the 
first place, but now they have compounded it by having an 
abortion. Victims may be terrified to tell their parents and 
they may wait too long, suffer in privacy, and end up having 
complications that could cost that little girl her life.
    I have read through some of the testimony today. We are 
going to hear some people that will say that it is the 
compassionate thing to do to take somebody across State lines 
to get an abortion. However, we need to look at the whole 
person. That is the reason we allowed the courts to be involved 
in these parental notification and parental consent laws.
    We need to have the rule of law established and enforced. 
The purpose of the legislation before us today is to make sure 
that State parental notification and parental consent laws are 
uphold, so--that people cannot bypass those by having an adult 
take a minor across State lines. That is the bottom line for 
this.
    I wish that all States would enact parental consent laws, 
not just parental notification, but actual parental consent 
laws. The people that care the most for the child should be 
involved in this kind of decision and, if there is aftercare 
needed, be fully informed in order to care for their young 
daughter.
    I want everybody to try to put themselves in a position of 
a parent. You know, at that age teenagers go through a lot of 
emotions. They go through maybe a troubled time with their mom 
or their dad, but what parent wouldn't wrap their arms around 
this little girl? They are going to give them advice, and it 
may mean a decision other than abortion. In a lot of families, 
if they decide to have the abortion, then they will be there 
for not only the physical care afterwards, but also through the 
trauma associated with abortion psychologically and 
emotionally, as well.
    So, Mr. Chairman, I appreciate your bringing this issue 
before this Committee and having a hearing on it. Nobody wants 
to talk about abortion these days. It is something that 
everybody wants to avoid. Nobody wants to talk about it. They 
are tired, they are sick of it. But there are lives that are 
being lost out there because these girls aren't being cared for 
post-abortion. I believe this legislation is necessary and I 
appreciate your willingness to have a hearing on it.
    Thank you.
    Senator Sessions. Thank you, Senator Ensign, for your 
leadership and your excellent statement. There is almost a 
suggestion sometimes that parents can't be trusted to love 
their children. These people that would take them across State 
lines, are they going to provide them a home? Are they going to 
help educate them? Are they going to raise this child with love 
and affection and for the rest of their lives be bonded 
together? No, they are not.
    To say that a parent who raised a child from her youth up 
should not be engaged in some issue of this importance, I 
think, is a mistake. I am glad to see that a majority of States 
have passed laws that do provide for notification. We know that 
any State law that does not withstand constitutional muster 
won't stand and would not be predicate support for the bill you 
have offered. But we will talk about that more later.
    Senator Ensign, I think there are a few minutes left on 
this second vote, if it goes according to time the way it is 
supposed to and not like--
    Senator Ensign. Mr. Chairman, I already voted, so I am in 
good shape.
    Senator Sessions. Okay, all right. I did, too, so we are 
into the third vote now. Did you vote on that?
    Senator Ensign. Yes.
    Senator Sessions. Well, come up. You can preside, and it 
won't take me but a minute to get this vote done.
    Also, for the record I will offer Senator Leahy's 
statement, the ranking Democratic member of the Judiciary 
Committee who could not be here, but has provided a statement.
    I think it might be appropriate if we do start with the 
second panel. Senator Ensign, you might call them up and 
introduce them.
    Senator Ensign [presiding.] Simply, this is just to make 
sure that Senator Sessions can be here. I am not a lawyer; he 
is, and so having all of the legal people here, I would like to 
have him here during their testimony. So if you all do not 
mind, we could just reverse the next two panels' order.
    If we could call up panel number three: Ms. Joyce Farley, 
Ms. Crystal Lane, and Reverend Doctor Katherine Hancock 
Ragsdale, if you would all come up. If any of you have full 
statements, they will all be made part of the record and if you 
could try to summarize your remarks in around 5 minutes, we 
would certainly appreciate that. There is a little timer in 
front of you, and then we can engage in some questions and 
answers afterwards.
    Why don't we just start with you, Ms. Farley, and we will 
work down the table? Thank you.

        STATEMENT OF JOYCE FARLEY, DUSHORE, PENNSYLVANIA

    Ms. Farley. Good afternoon, members of the U.S. Senate 
Judiciary Committee and all the public here. My name is Joyce 
Farley and I am a resident of the State of Pennsylvania. I have 
been asked by Senator Sessions 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 whom 
she had met after entering the local high school as a seventh-
grade student. I was aware at this time that this male was 
trying to befriend my daughter and had requested him not to 
call the house or come to visit. This male had a reputation of 
seeking out the seventh-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 of this type 
have many 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. The 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 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 1 day. The mother of this 19-year-
old male had taken Crystal for an abortion into 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 a physician and facility that I had 
no knowledge of. When Crystal developed complications from this 
medical procedure, this physician was not available and refused 
to supply necessary medical records to a physician that was 
available to provide Crystal the medical care she needed.
    I ask you please, in considering the Child Custody 
Protection Act, to put aside your personal opinions on abortion 
and 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, 
caring, 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.
    In many ways, time is a great healer, but as imperfect 
human beings we don't always know the effect of our actions or 
how deep the physical and emotional scars actually dwell. 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 appears as a 
submission for the record.]
    Senator Ensign. Thank you, Ms. Farley.
    Ms. Lane.

        STATEMENT OF CRYSTAL LANE, DUSHORE, PENNSYLVANIA

    Ms. Lane. My name is Crystal Lane and I am here today to 
tell you why I think the Child Custody Protection Act should be 
passed and made part of our National laws. I believe in this 
bill and I hope my message will make those present here today 
believers as well.
    When I was 13 years old, I was taken across the 
Pennsylvania State line to New York for an abortion. The woman 
that took me was in her mid-40's. I was so young and immature 
in many ways. I trusted this woman because she was older and I 
was so scared, I didn't know what to do.
    I really think I could have lost my life at the abortion 
clinic. I was awake through the entire time and asked them to 
stop, but no one listened to me. I think all the time about how 
things would have been different if my mom was with me or if I 
had told her I was pregnant. I would have been taken care with 
love rather than how I was treated.
    After the abortion, things started to go wrong right away 
and just kept getting worse, until my mom took me to our family 
doctor and on to the hospital. Since the first abortion I had 
was incomplete, the procedure needed to be repeated. Going 
through all this was the most terrifying time of my life.
    I am pleading to everyone here today to please take my 
story to heart and mind when considering the Child Custody 
Protection Act. I believe the passing of this bill will protect 
the children of our Nation from even more horrible things than 
what happened to me when I was only 13 years old. I was, and 
am, really nervous about coming here today, but I realize how 
important this bill is and the good it can bring to the people 
and the children this Nation.
    Thank you all for taking the time to listen to me today. I 
hope you find it in your hearts to do the right thing.
    [The prepared statement of Ms. Lane appears as a submission 
for the record.]
    Senator Ensign. Thank you, Ms. Lane. I know what kind of 
pain and emotions this must bring up for you and I appreciate 
you being here.
    Reverend Ragsdale.

 STATEMENT OF REVEREND DOCTOR KATHERINE HANCOCK RAGSDALE, ST. 
 DAVID'S EPISCOPAL CHURCH, PEPPERELL, MASSACHUSETTS, ON BEHALF 
  OF NARAL PRO-CHOICE AMERICA AND THE RELIGIOUS COALITION FOR 
                      REPRODUCTIVE CHOICE

    Rev. Ragsdale. Thank you. You do have the full version of 
my comments, which are a little long so I will give you an 
abbreviated version, within which I want to tell you one story 
and then make a couple of points.
    I am the parish priest of a small country church in 
Massachusetts. Some years ago, I went to pick up a 15-year-old 
girl and drive her to Boston for an abortion. I didn't know 
that girl yet. I knew her school nurse. The nurse had called me 
a few days earlier to see if I knew where she might find bus 
and cab fare for the girl. I was stunned at the idea of a 15-
year-old girl being asked to take multiple buses into the city 
all 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 were no other relatives close enough to 
help. So I went, and during our one-hour drive 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 a result of date rape. She didn't 
call it that. She just told me about the boy who 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 
pregnancy and a wounded spirit. So she didn't know to call it 
rape. So I talked to her about how not everything that happens 
to us is our own fault or God's will, and about how very much 
God loves her.
    I took her inside and then I went downstairs to get a 
couple of prescriptions filled for her, and I paid for them 
after I was informed that otherwise her father would be billed. 
Then I took her back to school and back to the nurse's office, 
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 any young woman should ever find herself 
in such a position, but frankly it never occurred to me that 
anyone would ever try to criminalize those who were able and 
willing to help. I did not, to my knowledge, break any laws 
that day, but I am here to tell you that if it had been 
necessary, I would have. And if helping young women like her 
should be made illegal, I will nonetheless continue to do it. I 
don't have a choice. I took vows, and if you tell me that it is 
a crime to exercise my ministry to care for all God's people--
young and old, rich and poor, weak and strong alike--then I 
will have no choice but to do it anyway. And I am not alone; 
there will be a lot of jailed clergy.
    I find it troubling that those of us in this room 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 future, to receive love 
and support and counsel from responsible adults, preferably 
their parents.
    If I thought this bill would achieve those goals, I would 
support it, too, but it won't. It doesn't resolve the problems 
with which we are faced. It doesn't even address those 
problems. This isn't a bill about solutions; it is a bill about 
punishment. We ought to be looking for new ways to solve our 
problems, not new ways to punish victims and those who care for 
them.
    Yet, no matter how successful our efforts, there will be 
minors who faced unplanned pregnancies and we will always 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.
    Nonetheless, many years ago the Episcopal Church passed a 
resolution opposing any parental consent or notification 
requirements that did not include a provision for non-judicial 
bypass. In our view, any morally-responsible requirement had to 
allow young women to turn for help to some responsible adult 
other than a parent or judge, to go instead to a grandparent or 
an aunt or a teacher or a neighbor or a counselor or a 
minister.
    My church encourages the very things this bill would 
outlaw, and I would point out that this resolution was 
supported by many anti-choice bishops and deputies whose 
concern for the well-being of young women outweighed 
ideological positions.
    Like you, we favor parental involvement. As you know, most 
women do indeed involve their parents. We wish that all could 
and would, but we know that no one can simply legislate healthy 
communication within families. We know that of those girls who 
do not involve their parents, many fear violence or being 
thrown out of their homes. And statistical and anecdotal 
evidence demonstrates that in far too many American homes, such 
fears are not unfounded.
    There is no excuse, none, good enough to justify 
legislation that further imperils young people who are already 
in danger in their own homes. And if our compassion for those 
imperiled young people should fail us, there would still be a 
self-interested reason to fear and oppose this legislation. It 
imperils all young women, even those in our own happy families.
    Let's not kid ourselves. Even in the healthiest of 
families, teens sometimes cannot bring themselves to confide in 
their parents. Should they? Sure, but you know as well as I 
that teenagers will from time to time exercise poor judgment. 
It is a fact of nature and there is no law you can pass that 
will change that, and the penalty for poor judgment should not 
be death.
    I ask you to oppose this bill, oppose it because no matter 
how good the intentions of its authors and its supporters, it 
is, in essence, punitive and mean-spirited. Oppose it out of 
compassion for those young people who cannot, for reasons of 
safety, tell a parent, but who need and deserve better than to 
be left alone in their distress. 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.
    [The prepared statement of Rev. Ragsdale appears as a 
submission for the record.]
    Senator Sessions. [presiding] I hope we are not mean-
spirited in this legislation. Parents love children, too. 
Sometimes, they come home to parents.
    I would just ask you this. The child that you took to 
obtain an abortion--did you provide the upkeep for that child 
after she got back home?
    Rev. Ragsdale. No.
    Senator Sessions. Did you in any way counsel or spend time 
with her?
    Rev. Ragsdale. Yes.
    Senator Sessions. How much?
    Rev. Ragsdale. Not a lot.
    Senator Sessions. Well, that is the only point I am making. 
Parents do that everyday. That is what they do.
    Rev. Ragsdale. Unfortunately, the judge was of the opinion 
that her parent didn't.
    Senator Sessions. Well, under all of the Constitutional 
laws, am I not correct that if there is that type of 
circumstance, a court can bypass the parent's consent?
    Rev. Ragsdale. I believe you are correct, Senator, but you 
would be in a better position to know that than I. What I would 
point out is that the Episcopal Church, in opposing parental 
consent requirements that don't allow for non-judicial bypass, 
has a serious concern that asking young women who are already 
under distress to navigate the court system imposes a huge 
burden on them.
    Frankly, I am an old woman who has been around for a--well, 
middle-aged, who has been around for a long time and I would 
feel a little intimidated trying to navigate the court system 
for any reason, but certainly for dealing with something as 
personal and intimate as that. We thought it was important that 
young women have support outside of that system.
    I had a guy in my congregation ask me once, would you do 
this for my daughter? I said I wouldn't have to do this for 
your daughter. If your daughter came to me, I would be able to 
say to her, you can talk to your father; let me go with you and 
help you do that. I know you. But if you were a different 
person than you are and she couldn't, in safety, talk to you, 
then, yes, absolutely I would help her. That is my 
responsibility.
    Senator Sessions. What if the driver were a 35-year-old man 
who had a habit of having sexual relationships with teenage 
girls?
    Rev. Ragsdale. Well, again, Senator, you know the law 
better than I, but I am under the impression that that is 
already illegal and he should probably be prosecuted for that, 
and also that taking her away in an attempt to cover up the 
evidence of an illegal act is probably a separate crime in and 
of itself, for which he also should be prosecuted.
    Senator Sessions. Well, that is not necessarily so. It 
depends on the age of consent and the State system. Some are 
16, others may be lower than that.
    Rev. Ragsdale. Well, if you could fix that, I would really 
like to have that fixed.
    Senator Sessions. Is that situation the kind of 
circumstance that you are dealing with? It seems to me that you 
have taken the harder cases which the court system has already 
considered and rendered an opinion on; that if a child has an 
abusive parent and has reason to be concerned about that, they 
have an option. But, otherwise, we would normally expect 
parents to do that.
    I don't think the Episcopal Church takes the view that 
parental notification is bad. It simply said, as I read their 
position, that they believe that there should be a judicial 
exception.
    Rev. Ragsdale. No, sir. I actually wrote that position, so 
I am real clear on what it says.
    Senator Sessions. What does it say?
    Rev. Ragsdale. It says it has to allow for non-judicial 
bypass.
    Senator Sessions. A non-judicial bypass?
    Rev. Ragsdale. A non-judicial bypass, yes, sir. We were 
very clear when we crafted it. As I said, many anti-choice 
bishops and deputies supported me in pushing this through after 
I had written it. Apart from knowing how often the judicial 
bypass system fails young women--and I know you will hear about 
that in a moment and you already are aware of how thoroughly it 
fails young women in many States. Apart from that, we are of 
the opinion that it is an onerous burden and that young women 
need to be able to turn to trusted adults for help.
    Senator Sessions. Ms. Farley, thank you for coming. Ms. 
Lane, thank you for coming. Do you have anything you would like 
to add to the comments?
    Ms. Farley. Yes, I would. The woman that took Crystal 
across State lines, she wasn't, you know, the big bad guy. She 
was the mother of the male that raped Crystal and I think the 
motives were pretty obvious there. That woman dropped Crystal 
back off at some other person's house and left, and we haven't 
seen her again, except through court.
    I work hard and I have insurance for my children. They are 
all grown now, but I did then. You know, this is a young lady 
who was a young girl. She wasn't a woman. You say ``woman'' a 
lot. She was a young girl and she was just scared. I am sure 
that woman was scared that her son would go to jail, and he 
did. Unfortunately, he got out and did it again and again.
    But as you say, she wasn't there, and you weren't there to 
see the pain Crystal went through all those years and the pain 
she still goes through. But I was there for her.
    Senator Sessions. Ms. Farley, how do you feel about the 
idea that somehow parents can't be trusted to discuss these 
issues? I am sure a child would not want to disappoint their 
parents. They may make a decision not to tell them for that 
reason. But don't you think in the long run that child is 
better off if they do come forward and talk to their parents 
and the parents and the child can discuss all the ramifications 
of the behavior that may have caused the pregnancy and all the 
choices they may be facing?
    Ms. Farley. Yes, I do, sir. I mean, family life is 
difficult; it is not perfect. Parents make mistakes, children 
make mistakes. You get together. I would think the church would 
want to encourage a family getting together and solving 
problems and working together. That is life, and when it is 
interfered with, that is when you have the dangerous 
situations.
    I will tell you Crystal needed care and I had her at the 
gynecologist down in Williamsport. That abortion clinic would 
not give that physician Crystal's medical records. Crystal even 
requested the records, and that is very poor medical care. What 
would have happened? Crystal was very sick. Thankfully, I 
happened to be home from work that day and noticed she wasn't 
there, and thankfully found out. It is scary.
    Senator Sessions. Well, I thank you both so much for 
coming. Reverend Ragsdale, thank you for sharing these issues. 
This is a very human thing. These are very real problems in the 
lives of young people today, and I think it is legitimate for a 
State to conclude that parents have a right to be involved in 
minor children's decisions of this kind. I think it is 
legitimate for this Congress to consider whether or not we 
ought to take legal action that would uphold and validate the 
decision of a State on this question, even though another State 
nearby may not agree.
    Is there anything else that you all would like to share?
    Thank you so much for all your personal stories.
    Our next panel is Professor Harrison, Professor Rubin and 
Professor Collett. So we have gone from real people to 
scholars.
    Professor Harrison is professor of law at the University of 
Virginia. He joined the faculty of UVA in 1993 as an associate 
professor of law. He graduated from the University of Virginia 
in 1977 and from Yale Law School in 1980. He was an associate 
with Patton, Boggs and Blow in Washington, D.C., and clerked 
for Hon. Robert Bork on the U.S. Court of Appeals for the 
District of Columbia Circuit. He worked at the Department of 
Justice from 1983 to 1993, serving in numerous capacities, 
including Deputy Assistant Attorney General in the Office of 
Legal Counsel from 1990 to 1993.
    Mr. Harrison, I thank you for a short, succinct statement. 
I was able to read it all. I read most of Mr. Rubin's, but I 
didn't quite get to the end of it.
    Professor Rubin is a professor at Georgetown University Law 
Center. He graduated from Harvard Law School, where he served 
as an editor of the Harvard Law Review. After graduating from 
law school, Professor Rubin clerked for Judge Collins Seitz on 
the Third Circuit, and Justice David Souter on the U.S. Supreme 
Court. He has spent several years as a practicing lawyer 
specializing in constitutional litigation. Recently, Professor 
Rubin served as counsel to former Vice President Al Gore before 
the U.S. Supreme Court in the two Florida election cases, Bush 
v. Palm Beach Canvasing Board and Bush v. Gore.
    Professor Teresa Stanton Collett is a professor at the 
University of St. Thomas School of Law. She graduated with 
honors from the University of Oklahoma School of Law and 
practiced as a member of the Trust and Estate Section of Crowe 
and Dunleavy in Oklahoma City. She also served on a joint 
legislative task force to reform Oklahoma's guardianship laws. 
The task force's efforts resulted in greater statutory 
protections for the elderly and people of limited mental 
capacity in the State.
    She served as a visiting professor at Oklahoma College of 
Law and was then appointed to the faculty at South Texas 
College of Law, in Houston. She served as a visiting faculty 
member at several other law schools, has published over 40 
articles, and is the co-author of a law case book on 
professional responsibility.
    Thank you, all three of you, for being here. Without 
further ado, Professor Harrison, I would be glad to hear your 
comments on this legislation.

STATEMENT OF JOHN C. HARRISON, PROFESSOR OF LAW, UNIVERSITY OF 
              VIRGINIA, CHARLOTTESVILLE, VIRGINIA

    Mr. Harrison. Thank you, Senator Sessions. I will try to be 
as brief in person as I was in print.
    Senator Sessions. You need not.
    Mr. Harrison. The Committee has asked me whether I think S. 
851 is constitutional, and I believe it to be. The 
constitutional question that it presents is fundamentally one 
of federalism. Although the underlying issues involve abortion 
and the constitutional rights that the Supreme Court has found 
regarding abortion, the issue presented here has to do with 
federalism, and in particular with the overlapping and 
sometimes conflicting jurisdictions of the States as part of 
our Federal Union.
    The first point that I would like to make and that my 
written testimony largely reflects is that it is common for 
Congress to use the commerce power not only for the purpose 
with which we may be mainly familiar--sort of direct regulation 
or ordinary activities--but in order to adjust conflicting 
jurisdictional claims within the Federal Union, and in 
particular to adjust conflicting jurisdictional claims among 
the States.
    The old cases that I talk about in my written testimony 
having to do with the interstate transportation of liquor are 
examples of jurisdictional conflicts created by the coexistence 
of wet States and dry States in a Federal Union in which the 
dry States were not able fully to control access to their 
territory from liquor.
    Congress' answer was a regulation of interstate commerce 
designed to reinforce the lawful jurisdiction of the dry 
States. And in doing that, Congress had to make a choice as to 
which States fundamentally had the better jurisdictional claim 
and in that case went with the dry States.
    What I think is going on here in this legislation is a 
policy choice proposed to be made by Congress having to do with 
which State primarily has the jurisdiction and authority with 
respect to domestic relations, and choosing the State of 
residence.
    Other questions that are raised by S. 851 have first to do 
with the issue of whether it is somehow impermissibly extra-
territorial and somehow authorizes a State to exert its 
legislation jurisdiction outside of its territorial limits.
    Very briefly, the point I would make is that specifically 
in the area of domestic relations--and it happens elsewhere in 
conflicts of law and choice of law, but specifically in the 
area of domestic relations--it is common for the rule regarding 
a domestic relationship to come not necessarily from the State 
in which the parties are physically present, but from some 
other State, routinely the State of residence; a classic 
example is the rule with which Congress has recently become 
more familiar, that (within limits, and there are limits to it) 
a marriage celebrated in one State, if valid in that State, is 
valid in another State even if it would not have been valid if 
celebrated in the second State.
    The other question that S. 851 raises has to do with the 
right to travel, with the fact that the Supreme Court has found 
implicit in the Federal Union, an ability by adults largely to 
choose their State of residence and therefore in many ways to 
choose the legal regime that applies to them. I don't think 
that S. 851 poses a serious constitutional problem here.
    First, with respect to domestic relations, it is far from 
clear--and this is a difficult and often debated matter--just 
how far the unilateral act of one party to a domestic 
relation--for example, the unilateral act of one spouse by 
changing location--can change the domestic relations that 
obtain between the spouses.
    It is not necessary to address that question, which is a 
difficult and complex one, because here we are talking about 
minors who, by hypothesis, do not have even the constitutional 
right to make their own choice regarding abortion, and I think 
it therefore very likely do not have whatever the 
constitutional right is in the sphere of domestic relations to 
make a choice of place of residence so as to control the legal 
regime that applies to them. So for those reasons, I think that 
Senate bill 851 is constitutional.
    Thank you, Senator.
    [The prepared statement of Mr. Harrison appears as a 
submission for the record.]
    Senator Sessions. Thank you, Professor Harrison.
    Professor Rubin.

   STATEMENT OF PETER J. RUBIN, PROFESSOR OF LAW, GEORGETOWN 
                  UNIVERSITY, WASHINGTON, D.C.

    Mr. Rubin. Thank you, Senator Sessions. I have been asked 
by the Committee to assess whether S. 851, the Child Custody 
Protection Act now pending before the Senate, is consistent 
with the Constitution of the United States. I am honored to 
have the opportunity to convey my views to the Committee.
    S. 851 would make it a Federal crime to assist a pregnant 
minor to obtain a lawful abortion in a State other than her 
State of residence and in accord with the less restrictive laws 
of that State unless she complies with the more severe 
restrictions her home State imposes for abortions sought by 
minors within its own territorial limits. The statute does not 
uniformly apply home State laws on pregnant minors who obtain 
out-of-state abortions. It applies only where the woman seeks 
to go from a State with a more restrictive regime into a State 
with a less restrictive one.
    The proposed statute would, if enacted, violate the 
Constitution for three independent reasons. To begin with, it 
violates basic principles of federalism, principles fundamental 
to our constitutional order. States have the right to enact and 
enforce their own laws governing conduct within their 
territorial boundaries, and under the Privileges and Immunities 
Clause of Article IV, Section 2, residents of each of the 
United States have a right to travel to and from any State of 
the Union for purposes that are legal there.
    Neither your home State nor Congress may lock you into the 
legal regime of your home State as you travel across the 
country. Indeed, in the landmark right-to-travel decision Saenz 
v. Roe, the Supreme Court recently reaffirmed this fundamental 
principle, holding that even with explicit Congressional 
approval, California could not carve an exception out from its 
legal regime to provide to those who had recently come into the 
State only the welfare benefits that they would have been 
entitled to receive under the laws of their former States of 
residence. And these were welfare laws that would operate far 
less directly and less powerfully than would a special criminal 
law restriction on primary conduct, like the proposal under 
discussion today.
    Under Article IV, neither Virginia nor Congress could, for 
example, prohibit residents of Virginia, where casino gambling 
is illegal, from traveling interstate to gamble in a casino in 
Nevada. Senator Ensign, I am sure, knows that indeed the 
economy of Nevada essentially depends upon this aspect of 
federalism for its continued vitality. And people who like to 
hunt cannot be prohibited from traveling to States where 
hunting is legal in order to avail themselves of those States' 
hunting laws just because such hunting may be illegal in their 
home States.
    The proposed law, though, amounts to a statutory attempt to 
force a most vulnerable class of young women to carry the 
restrictive laws of their home States strapped to their backs, 
bearing the great weight of those laws like the bars of a 
prison that follows them wherever they go.
    And, of course, if home State legislation or Congressional 
legislation may saddle the home State citizens with that 
State's abortion regulation regime, then it may saddle them 
with their home State's adoption and marriage regimes, as well, 
and with piece after piece of the home State's legal fabric. 
There are no constitutional scissors that can cut this process 
short, no principled metric that can supply a stopping point.
    You have heard a terrible, tragic story today that is 
claimed to justify the constitutional departures this bill 
represents. The States and the Congress have power within their 
respective spheres to prohibit and punish sexual predators, 
those who commit statutory rape, those who would coerce a 
pregnant young woman across State lines to obtain an abortion 
against her will. S. 851, though, does none of these things and 
it rests on a principle that violates the basic premise upon 
which our Federal system is constructed. It therefore violates 
the Constitution of the United States.
    Second, because of the cruel and dangerous method S. 851 
employs to attempt to deter vulnerable pregnant young women, 
young women who may be too frightened to seek a judicial bypass 
or too terrified of physical abuse to notify a parent or legal 
guardian who may indeed be the cause of the pregnancy, from 
obtaining lawful abortions in States in which they do not 
reside, the proposed statute also violates the Due Process 
Clause of the Fifth Amendment.
    Government may not attempt to deter a minor from engaging 
in a particular activity by making it more dangerous. That is 
the teaching of Carey v. Population Services International. The 
proposed statute does not actually prohibit pregnant 
adolescents from obtaining out-of-state abortions without 
complying with the parental notification or consent laws of 
their States of residence. It seeks, rather, to deter them from 
doing so by denying them the assistance of any compassionate or 
caring adult.
    And it contains no exception where it is a pregnant young 
woman's close friend or her aunt or grandmother or a member of 
the clergy who accompanies her across a State line on this 
frightening journey. Indeed, it does not exempt health care 
providers, including doctors, from possible civil or criminal 
penalties.
    Under the proposed statute, the pregnant young woman is 
left to make this perilous trip on her own and return alone 
from a medical procedure that may have after-effects, including 
bleeding or disorientation from anesthesia, or to seek an 
abortion illegally and less safely in her own State of 
residence. Under the Due Process Clause of the 14th Amendment, 
this is not a permissible means of achieving even an otherwise 
legitimate governmental end.
    Finally, the proposed statute violates the undue burden 
test for abortion regulation adopted by the Supreme Court in 
Planned Parenthood of Southeastern Pennsylvania v. Casey. Under 
the analytical approach articulated by the Court in that case, 
the proposed statute has the unconstitutional purpose, and 
would have the unconstitutional effect, of placing a 
substantial obstacle in the path of the pregnant adolescents it 
affects seeking to exercise their right to choose to terminate 
a pregnancy.
    In addition, the statute as now drafted lacks an exception 
required under Casey and the Court's most recent abortion 
decision.
    Senator Sessions. Professor Rubin, if you will wrap up?
    Mr. Rubin. I am wrapping it up, Senator.
    It lacks an exception for the health of the pregnant woman.
    Thank you. I apologize for my lack of brevity in writing 
and in oral presentation. I look forward to your questions, 
Senator.
    [The prepared statement of Mr. Rubin appears as a 
submission for the record.]
    Senator Sessions. Very fine.
    Professor Collett.

    STATEMENT OF TERESA STANTON COLLETT, PROFESSOR OF LAW, 
 UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, MINNEAPOLIS, MINNESOTA

    Ms. Collett. Mr. Chairman, Senator Ensign, I am delighted 
to have the opportunity to testify today. The testimony I am 
about to present does not represent the interests of my 
institution or any other organization.
    There are some fundamental facts that are being ignored by 
the testimony that has been presented by other members of this 
panel and Reverend Ragsdale, and those fundamental facts are 
these: In fact, those States that have enacted parental 
involvement laws number 44. Forty-four out of the 50 States 
have attempted legislatively to ensure that parents are 
involved to some degree in the minor's decision to obtain an 
abortion.
    Of those 44 States, 8 have been ruled unconstitutional by 
either a State or Federal court because of some sort of 
infirmity. Of the remaining States, ten are ineffective in 
ensuring parental involvement because they allow some sort of 
abortion provider bypass or some other adult to provide the 
equivalent of parental consent or notification.
    But notwithstanding that, 25 States in this Union have 
determined that parents should either be notified or give 
consent prior to their minor daughter being provided an 
abortion. Why is that? Because it represents the huge consensus 
in this country that a minor should have parental guidance in 
the decision on how to deal with an unplanned pregnancy.
    And what is really telling is a survey by MTV, that great 
conservative media outlet. MTV, of their viewers ages 18 
through 24, reflects that 68 percent agree that parental 
consent, not even notification--68 percent agree that parental 
consent should be in place.
    When you do a more general survey, for the past 10 years it 
has held steady that 70 percent or more Americans believe that 
parental consent or notification should be in effect. This is a 
broad consensus on an issue that is so divisive as abortion; it 
is amazing. In fact, Senators, this is one of the few places 
where we have a win-win situation.
    And the United States Supreme Court agrees. They have 
consistently stated that there are, in fact, reasons that 
parents should be involved in a minor's decision to obtain an 
abortion. The restriction they have placed on that is that in 
those few cases where parents might not respond reasonably, 
there must be the opportunity for a parental bypass, where it 
is a parental consent statute.
    Now, how often does judicial bypass occur? Reverend 
Ragsdale and Professor Rubin have suggested that this is an 
onerous and burdensome circumstance, and yet the empirical 
evidence that we have regarding these judicial bypass 
proceedings suggests quite the opposite.
    In fact, a survey done of the Massachusetts proceedings in 
these cases show that those hearings average 12.12 minutes, 
and, in fact, that in those cases almost every bypass petition 
that was presented was granted. In my home State of Minnesota, 
a similar survey indicated that almost every bypass petition 
that was presented to the courts was granted.
    In the State of Texas, we saw an increase in the number of 
parents that were notified. At least according to Planned 
Parenthood's own statistics, prior to the passage of our 
Parental Notification Act, 67 percent of all parents were 
notified. But after our Parental Notification Act, well over 90 
percent of all parents now are involved in their minor 
daughter's attempt to obtain an abortion.
    Is this a good and necessary thing? Well, according to a 
case that was just settled down in Texas, a minor who went 
through a judicial bypass with the assistance of one of these 
interested bystanders, with the assistance of an attorney that 
was trained through Planned Parenthood, told her lawyer that 
she was receiving psychiatric assistance and, in fact, was 
taking psychotropic drugs.
    The lawyer suggested that she not tell the judge, so she 
didn't. The consequence of the abortion was tremendous 
psychological disturbance. That is how the parents found out 
that she had had the abortion. So the Department of Health in 
Texas was sued for failure to check up on whether or not the 
abortion clinics were adequately complying with the informed 
consent requirements under the State of Texas law. That matter 
has now been settled and we hope to see the State of Texas 
Department of Health ensuring greater compliance with informed 
consent.
    Parents, according to the United States Supreme Court, are 
in the best position to ensure the medical well-being of their 
minor daughters. And according to Planned Parenthood's own 
research, well over 80 percent of those parents will agree with 
their daughter's decision to obtain an abortion.
    I see I am out of time, Mr. Chairman, so I will stop there.
    [The prepared statement of Ms. Collett appears as a 
submission for the record.]
    Senator Sessions. Thank you. Well, three good 
presentations.
    Professor Rubin, you mentioned traveling in interstate 
commerce to gamble or whatever other example you gave there. I 
was thinking about how Senator Ensign and his other 
veterinarian brother, Wayne Allard, have a bill to prohibit 
transportation in interstate commerce of fighting cocks for the 
purpose of cock-fighting in a State that allows it from States 
that don't allow it.
    How would you opine on that one?
    Mr. Rubin. I think that is in the same category as what 
Professor Harrison described about transportation of liquor in 
interstate commerce. I completely agree that Congress' primary 
authority derives from the right to regulate interstate 
commerce and to regulate the movement of goods in interstate 
commerce.
    Human beings are not goods being transported in interstate 
commerce. They are not liquor, they are not fighting cocks. 
They are individuals with the right in our Federal system to 
travel from State to State that has been recognized by the 
Supreme Court and to take advantage of the laws in the States 
into which they travel.
    So Article IV, Section 2, of the Constitution reads, ``The 
citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States.'' This has been 
held to mean that they are entitled to obtain--in Doe v. 
Bolton, in 1973, the Court held they are entitled to obtain 
medical services, including abortion services, on the same 
terms as people in the State of destination. So that law is, I 
think, completely constitutional.
    Senator Sessions. What about the Mann Act, the interstate 
transportation for the purpose of prostitution?
    Mr. Rubin. The Mann Act is different from this statute. I 
believe that this proposed statute, Senator, is actually unique 
in that it attempts to project the rule of the person's home 
State into another State. This doesn't create a Federal uniform 
rule that says no one moving in interstate commerce may have an 
abortion unless they comply with some Federal parental consent 
law. That would be a different statute from this. That is a 
Federal statute which says moving in interstate commerce for 
purposes of prostitution is unlawful.
    Senator Ensign. Professor Rubin, would you just let me 
follow that up?
    Mr. Rubin. Senator, yes, please.
    Senator Ensign. In the State of Nevada, in several 
counties, prostitution is legal. Would a law be constitutional 
that says that you cannot, under the Mann Act, have an adult 
bring a 12-year-old girl to the State of Nevada if it was legal 
in the State of Nevada.
    Mr. Rubin. Is it legal for a 12-year-old girl to be a 
prostitute in the--
    Senator Ensign. No. I am saying if it was, you could say 
that in any State. That is absolutely allowed.
    Mr. Rubin. I am not sure--
    Senator Ensign. Sure, it is.
    Mr. Rubin. I think there might be some constitutional 
difficulty with a law that purported to legalize prostitution 
by a 12-year-old.
    Senator Ensign. In a 15-year-old. Whatever it is, I am 
saying if it was legal for a teenager, would the Mann Act be 
constitutional in that case?
    Mr. Rubin. The Mann Act sets a uniform national standard 
and that is a different case from this case, which purports to 
have the law that applied depend upon the State of residence of 
the person engaged in the act.
    If the Mann Act were rewritten so that it only applied to 
people whose home States didn't permit the act that they were 
going to do, so that the question would be what is your home 
State's law, then that would be this. But the Mann Act creates 
a uniform national rule and could create a uniform national 
rule such as you are describing.
    Senator Sessions. Professor Harrison, do you agree that 
commerce does not include people, and how would you analyze the 
argument that Professor Rubin has made? And then I will ask 
Professor Collett to respond, also.
    Mr. Harrison. For one person to transport another person 
across State lines is, per the Mann Act, interstate commerce. 
And as you said in your opening statement, that has routinely 
been upheld. Many of Congress' regulation of interstate 
commerce are specifically tied to interstate movement, 
including interstate movement by the person committing the 
crime, although that is not how S. 851 operates.
    So although sometimes the interstate movement of persons is 
different from the interstate movement of goods for 
constitutional purposes, of course, there is no bright line 
principle that Congress can't regulate the interstate movement 
of persons, and in particular can't regulate one person's 
decision to transport somebody else interstate. Again, that is 
the Mann Act.
    As to the question whether the Mann Act is different 
because it adopts a uniform national policy, a uniform national 
rule, rather than tying the rule to the rule of a particular 
State, to get back to the interstate liquor cases from the 
early part of the 20th century, there was, in fact, a 
controversy on the Court and among commentators--and indeed 
President Taft had a strong view on this, but it was not 
ultimately the view that prevailed--whether Congress, in order 
to legislate in that area, had to do so uniformly.
    And the Court's answer was that it did not, and that the 
Wilson Act, which tied the legality of the interstate 
transportation of liquor to the substantive law of the State 
into which it was being transported, was constitutional; that 
was not an impermissible delegation of Congressional power to 
the State, which was said to be the difficulty.
    So using the law of the State as the trigger for the 
substantive Federal rule, which is what S. 851 does, is also 
what the Wilson Act did, and the Court upheld the Wilson Act. 
One of the arguments was, no, you can't do that, you can't tie 
it to the State rule; it has to be uniform. A majority of the 
Court rejected that.
    Indeed, the principle of the Wilson Act is now in Section 2 
of the 21st Amendment, the amendment that repealed the 18th 
Amendment that established nationwide prohibition. Section 2 of 
the 21st Amendment forbids--and it is almost the only section 
of the Constitution that actually forbids private conduct--the 
importation into a State of liquor in violation of the laws of 
the State; that is to say, it ties the Federal rule to the 
choice that the State has made.
    So not only does the Constitution permit that, in the one 
area in which it actually has its own rule about this, the 
Constitution does that. So that phenomenon is now a familiar 
one in the law. I think the harder question, primarily the 
harder policy question, is whether the State with the primary 
claim to regulate is the State in which the minor is physically 
located at the time of the abortion or the State of residence, 
although as I indicated, it is routine for the law of domestic 
relations to tie domestic rights and obligations, including 
parental rights and obligations, to the State of residence 
rather than the State in which someone is temporarily located.
    Senator Sessions. Professor Collett.
    Ms. Collett. In fact, Congress has had to intervene where, 
for example, in a divorce situation parents have tried to flee 
the State of residence to avoid child support obligations, 
tried to flee the State of residence to try to avoid custodial 
orders, and they have created uniform Federal laws. So that is 
not an unusual or unprecedented move and there is no question 
about the enforceability of that.
    Senator Sessions. This bill does not prohibit travel. It 
prohibits travel for the purpose, in essence, of evading a 
parental notification law of the State, and it prohibits a 
third party from causing this to occur. It does not even 
prohibit the minor from voluntarily, on their own, going out of 
State.
    How does that impact it, Mr. Harrison?
    Mr. Harrison. Again, that makes it much like the Mann Act.
    Senator Sessions. Professor Rubin.
    Mr. Rubin. Well, I guess there are two points. As to the 
latter point that the young woman can still go alone, as I have 
described, I think that this is an independent reason why it is 
unconstitutional. To require a young woman in extremis to find 
cab fare or take multiple buses, as Reverend Ragsdale described 
in her testimony--I think you were out of the room during that 
part of her description--
    Senator Sessions. I remember reading that.
    Mr. Rubin. --independently violates the Due Process Clause.
    Senator Sessions. I am not a court, but I am not too into 
that argument. I am not a judge. It is okay for the record, but 
what about this interstate travel and the argument you made 
originally?
    Mr. Rubin. If you look at a case like Saenz v. Roe, the 
court is only applying a law to people who have already 
traveled interstate. The fact that they are unable to take 
advantage of the benefits of the law of the destination State 
is held as a matter of law to have a deterrent effect on the 
right of travel and therefore to infringe it. And the same is 
true here. Whether it is an assistance of a person or the 
person is still allowed to travel, the avowed purpose of this 
law is to keep young women from doing this.
    And I would also just say you used the word ``evasion.'' It 
isn't an evasion of their home State's laws. It is an avoidance 
of the legal regime of one State by going into another State. 
That is in my written testimony as well.
    Senator Sessions. Professor Collett.
    Ms. Collett. But the anecdotal story of Reverend Ragsdale 
is not borne out by, in fact, the study that was done by the 
Alan Gutmacher Institute, which is, of course, Planned 
Parenthood's research arm. A survey of 1,500 unmarried minors 
having abortions revealed that when neither parent knows of the 
abortion, it is the boyfriend who accompanies them. Eighty-nine 
percent said it was the boyfriend who was involved in making 
the decision to have the abortion, and 93 percent if the minor 
was 15 or younger.
    Senator Sessions. Those are pretty dramatic statistics. You 
said that was Planned Parenthood's statistics?
    Ms. Collett. Yes. It is a study done by Stanley Henshaw, 
who is their demographer, and it is published at 24 Family 
Planning Perspectives 196, in 1992.
    Senator Sessions. Well, I think that adds a lot of 
credibility to the concern most people have about parental 
consent. Intuitively, that is the issue that has driven 
legislatures, at least 40-some-odd, to pass some sort of law 
dealing with this.
    Professor Harrison, if the underlying State law for some 
reason over-reaches and places too great a burden on the right 
to choose provided for in Roe and Casey and other cases, is 
that a defense that a good lawyer can make to this matter?
    Mr. Harrison. Absolutely. Congress can reinforce only State 
laws that are themselves valid, absolutely.
    Senator Sessions. Would you agree with that, Professor 
Rubin? In other words, if there is some State out there that 
has a law that has gone too far and is not valid under Supreme 
Court interpretation of the Constitution, could they raise that 
in defense to a charge like this?
    Mr. Rubin. I don't know the answer to that question under 
the text of your statute. My federalism objection, which I 
gather is the one that interests you most, assumes the validity 
of the State laws. They simply can't be projected into the 
other State, carried on the back of the State resident.
    Senator Sessions. Professor Collett, do you think that 
would be a matter that could be asserted? I mean, we would not 
want to draft the statute in such a way that it would prohibit 
a person raising this defense, assuming they could be able to 
raise it.
    Ms. Collett. I agree with Professor Harrison. The eight 
State statutes that have been declared constitutionally infirm 
are not resurrected by this statute.
    Senator Sessions. I don't claim to be a constitutional 
scholar, but I have prosecuted lots of cases and I have seen 
lots of statutes pass here.
    Professor Rubin, you remember the big case of the gun on 
the schoolyard that the Supreme Court struck down for lack of 
interstate commerce nexus. What was your view on that? Have you 
expressed it? You don't have to if you haven't expressed it.
    Mr. Rubin. I haven't expressed a view on the Lopez case. I 
say in my testimony that I don't think that an objection to 
this on Lopez grounds is well taken; that is, I think that if 
there weren't this federalism problem, the nexus to interstate 
commerce that you have built into the bill is adequate under 
the Court's commerce power as it has been construed under Lopez 
and following cases.
    Senator Sessions. In recent years, Congress has passed laws 
that do not have a nexus, and Lopez, in my view, was one of 
them. All of the old statutes--the Mann Act, interstate 
transportation of stolen property, motor vehicles, kidnapping--
are directly tied to interstate commerce. This bill is directly 
tied to interstate commerce.
    Mr. Rubin. But it does have, Senator--excuse me.
    Senator Sessions. So am I curious about your view on that.
    Mr. Rubin. It does, though, have this, I think, unique 
structure of saying that the law that is applicable to an 
individual in a State is the law of his or her home State, her 
State of residence; that you can't shake that however far you 
go. And that is different from, I believe, all other Federal 
statutes.
    It was the structure of--and I mean no comparison in terms 
of gravity--it was the structure of the fugitive slave laws 
under the specific authorization of the fugitive slave clause 
which said that--and, in fact, it is interesting because these 
are all in Article IV. Full faith and credit has to be given to 
judgments of different States. That is Professor Collett's 
example of a divorce or whatever. That is a judgment of a 
State.
    Section 2: the citizens of each State are entitled to 
privileges and immunities of citizens in the several States. 
But then down below, two exceptions; I guess they are 
exceptions. If you commit a crime in one State, the other State 
has to extradite you. And no person held to service or labor in 
one State under the laws thereof, escaping into another, in 
consequence of any law or regulation therein, shall be 
discharged from such service or labor.
    This is the only example I know of in American history 
where the law of a destination State was held invalid and where 
someone was bound by the law of the State that they had 
departed from. It is a highly unusual structure of law and it 
doesn't support federalism. Federalism is different States with 
different laws. It really cuts against the State's right, the 
destination State's right to have its own laws.
    Senator Sessions. Well, I am not sure I agree with that 
because the State's lawful exercise of support of parental 
rights is undermined.
    Mr. Rubin. Well, the destination State has made a 
determination.
    Senator Sessions. I know, but that has little or no nexus 
to the child.
    Let me ask this of the three of you. It seems to me the act 
of transporting this minor child across State lines is what is 
prohibited. That essentially commences at least in the State 
where the prohibition exists. Would that not give it 
constitutional support?
    Mr. Harrison. That is true. I don't think it needs that, 
Senator, and I want to say something about the point of the 
conflicting jurisdictions of the States because that, I think, 
is the trickiest question here.
    Senator Ensign isn't here anymore, but I want to talk about 
something else involving Nevada, which is the Nevada quickie 
divorce, another problem from the conflict of laws and the 
constitutional law of the conflict of laws from earlier in the 
20th century.
    The point I want to make is that Nevada made possible the 
so-called quickie divorce by having a short period of 
residence; that is to say by permitting one party to a marriage 
to obtain residence in Nevada quickly and thereby give Nevada 
the jurisdiction to decree a divorce, although as it turned out 
not necessarily the jurisdiction to control the property, the 
other part of the domestic relationship, in other States.
    The point I want to make is that even to get the 
jurisdiction to do that, to operate, as they said in those 
days, on the marital thing, Nevada had to become the State of 
residence. The rule of conflict of laws at the time--and I 
think it is still the same, it certainly was then--was that 
just passing through a State, just being physically present in 
a State, did not give that State, the State you were physically 
in, if you were a member of a domestic relationship, the right 
to control the rights and responsibilities of that domestic 
relationship, and in particular to grant the divorce.
    In order to obtain the divorce, it was necessary to become 
resident in the State, even if only for a relatively short 
period of time. So specifically in the context of domestic 
relations, something that might look extra-territorial, where 
the law of the State of residence continues to control the 
domestic relationship--here, the parent-child relationship--
actually is not unusual, and the law of divorce is an example.
    Senator Sessions. All right, maybe we have covered that. I 
think that is really interesting. Well, I thank all of you for 
your very insightful comments. This deals with an issue that I 
think is important. I have no doubt of the public policy 
validity of it. I feel very strongly about that.
    I do not feel like there has been any oppression of a minor 
child to take care that they consult their parent before they 
undertake such a serious action as an abortion. So I feel good 
about that. I do want to make sure that if we have any errors 
in drafting that could impact the Constitution, I would be 
prepared to consider those. Frankly, I remain pretty convinced 
as a former prosecutor that if somebody takes somebody out of a 
State, across a State line, they have acted in violation of the 
State authority and that this could be a Federal offense.
    I want to ask you one thing I didn't quite get, Professor 
Harrison. On the liquor laws, I don't quite understand. What 
did it exactly prohibit?
    Mr. Harrison. The Wilson Act operates like Section 2 of the 
21st Amendment now operates to forbid the importation into a 
State of liquor in violation of the laws of the State. So it 
tied the Federal rule to the State rule. It didn't say no 
interstate transportation of liquor. It said no interstate 
transportation of liquor to a dry State, basically, which is 
the rule now constitutionalized in Section 2 of the 21st 
Amendment. It was a matter of some controversy then, but the 
court sustained a Federal statute that didn't impose a uniform 
national rule, didn't say no interstate transportation of 
liquor, but rather said whether the liquor can be transported 
into a State depends on the law of the State. The court 
approved that in the Wilson Act cases.
    Senator Sessions. Well, very good.
    Senator Ensign's entire statement will be made a part of 
the record, as will Senator Hatch's, and the record will be 
open for 7 days. I note that my colleagues from the other side 
of the aisle had submitted some names for witnesses, but I am 
sorry that they didn't come to participate in this. I think it 
is an important social issue in America and I think the 
Congress of the United States has every right to act 
constitutionally, if it is able, to respond to the public 
interest.
    I thank all of you for your testimony. It has been a 
worthwhile hearing. If there is nothing else, we are adjourned.
    [Whereupon, at 4:36 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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