[Congressional Record Volume 144, Number 119 (Thursday, September 10, 1998)]
[Senate]
[Pages S10196-S10198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE CHILD CUSTODY PROTECTION ACT

  Mr. ABRAHAM. Mr. President, at present, it is our expectation 
tomorrow morning to be voting on cloture on a motion to proceed forward 
on S. 1645, the Child Custody Protection Act. It is my hope that 
tomorrow we will find 60 votes so we might proceed to debate that 
issue. The fact is, we have not had an opportunity here on the floor to 
have much debate about this motion to proceed, or about the issue 
itself, so I would like to take the time today to begin to acquaint our 
colleagues with this very vital piece of legislation.
  Mr. President, the Child Custody Protection Act would protect State 
laws requiring parental involvement in a minor's important decision 
whether or not to undergo an abortion.
  If the minor's home State has a parental involvement law this 
legislation would make it a Federal offense to transport that minor 
across State lines to obtain an abortion, unless the parents have been 
involved as that law requires, or the requirement has been waived by a 
court.
  By protecting existing State laws this legislation would help protect 
parents' rights and the health and well-being of teen-age girls facing 
unexpected pregnancy.
  I know, Mr. President, that the abortion issue has been strongly 
debated in this Chamber and, indeed, throughout our country. But I 
believe we all should be able to agree on the need for this 
legislation. Whatever one's position on the underlying issue of 
abortion, the protection of parental rights, of valid State laws, and 
of our daughters' health and emotional well-being demand that we 
prevent non-parents and non-guardians from circumventing State parental 
involvement laws.
  The rationale behind this legislation is simple, Mr. President: 
States that choose to institute parental involvement requirements 
deserve to have those requirements respected.
  Mr. President, 85 percent of Americans surveyed in a 1996 Gallup poll 
favored requiring minors to get parental consent for an abortion. 
Americans quite reasonably believe that no teen should be left to face 
an unexpected pregnancy alone. As the Supreme Court noted in H.L. 
versus Matheson, ``the medical, emotional, and psychological 
consequences of an abortion are serious and can be lasting; this is 
particularly so when the patient is immature.''
  I believe the American people share this realization, and also 
realize that parents are almost always the ones most willing and able 
to provide their daughters with the guidance and support they need in 
making the life-changing decision whether or not to undergo an 
abortion.
  Thus it is not surprising that more than 20 States have instituted 
parental involvement requirements.
  These laws are on the books. They have been held constitutional, and 
they have the support of a strong majority of the American people.
  Unfortunately, parental involvement laws are being circumvented and 
undermined by non-parents and non-guardians taking pregnant, minor 
teens across State lines for secret abortions.
  This is a significant problem. The abortion rights Center for 
Reproductive Law & Policy reports that thousands of pregnant girls are 
taken across State lines by adults to obtain secret abortions.
  Indeed, a veritable interstate abortion industry seems to have grown 
up.
  Abortion clinics in States without parental involvement laws are 
advertising in States that do have these requirements. The 
advertisements inform anyone who cares to know that the clinics will 
perform abortions on minors without parental notification or consent.
  Many people are attracted by these advertisements, and the results 
can be tragic.
  During the hearing on this bill, the Judiciary Committee heard from 
Joyce Farley. Mrs. Farley told us how her 12-year-old daughter was 
given alcohol, raped, then taken across the State lines, by the 
rapist's mother, for a secret abortion. Understandably, Mrs. Farley was 
of the view that the abortion was undertaken to destroy evidence of her 
daughter's rape by a 17-year-old neighbor, who committed the act.
  Mrs. Farley's daughter was understandably frightened and embarrassed. 
She did not immediately tell her mother of either her rape or her 
pregnancy.
  Her rapist's mother took advantage of this situation. Without telling 
Mrs. Farley, she drove the girl from her home in Pennsylvania, which 
has a parental notification law, to New York, which does not. She took 
the girl to an abortion clinic, lied on the forms, claiming to be the 
girl's mother, and waited while the girl underwent an abortion. The 
rapist's mother then dropped Mrs. Farley's daughter off 30 miles from 
her home.
  This poor girl was bleeding and in pain. When she got home, Mrs. 
Farley asked her what was wrong and eventually was told about the 
abortion. She then called the New York abortion clinic and was told 
that the pain and bleeding were normal--to be expected. She was told to 
increase her daughter's medication.
  Luckily for her daughter, Mrs. Farley is a nurse, so she knew that 
this advice was dangerously wrong. As it turned out, the abortion was 
incomplete and this young girl, now just 13, had to undergo another 
procedure to complete the abortion.
  Mrs. Farley was understandably very upset at what had happened to her 
daughter. She also was upset at what had, and what had not, been done 
about it.
  The man who had gotten her daughter pregnant eventually pleaded 
guilty to statutory rape. But the rapist's mother, who claimed she was 
just ``helping out'' by taking a by-then-13-year-old rape victim across 
State lines for a secret abortion, may receive no punishment at all.
  The Pennsylvania Supreme Court has just accepted for review her 
challenge of Pennsylvania's prosecution of her under State law. She 
charges that Pennsylvania exceeded its constitutional authority. 
Moreover, courts, legislators and prosecutors face great difficulty in 
situations like this because it is unclear which State's laws should 
apply.
  The actions of the rapist's mother were arguably legal in New York, 
even though Pennsylvania has made them illegal within that State. It is 
this classic conflict of laws problem that the Child Custody Protection 
Act would address.
  Mr. President, Mrs. Farley deserves better protection than she 
currently receives. Her daughter certainly deserves better protection, 
and parents and teens all across America deserve better protection 
against this kind of interference in the most important and most 
private decisions people can make.
  Any parent with minor daughters--and I have two of my own--should be 
concerned about what happened to Mrs. Farley, and especially what 
happened to her daughter.
  State parental notification and consent laws exist to protect girls 
from predators. They also exist to protect families.
  Today, any child is at significantly increased risk of drug abuse, 
crime,

[[Page S10197]]

poverty and even suicide. That is why it is crucial that we help States 
that want to protect the rights of American parents to be involved in 
important decisions affecting their children. Only by being a part of 
their lives can parents provide their children with the guidance they 
need and maintain the mutual trust necessary to teach them how to lead 
good, productive lives.
  Parents also are almost always the people best able to support their 
daughters in facing an unexpected pregnancy. Bruce Lucero, a physician 
who has performed over 45,000 abortions and who also supports this 
legislation, explains the situation this way:

       Parents are usually the ones who can best help their teen-
     ager consider her options. And whatever the girls' decision, 
     parents can provide the necessary emotional support and 
     financial assistance.

  What is more, Lucero argues, a girl who avoids telling her parents 
about her pregnancy too often will wait too long, then have to:

       Turn to her parents to help to pay for a . . . riskier 
     second-trimester abortion. Also, patients who receive 
     abortions at out-of-state clinics frequently do not return 
     for follow-up care, which can lead to dangerous 
     complications. And a teen-ager who has an abortion across 
     state lines without her parents' knowledge is even more 
     unlikely to tell them that she is having complications.
  This is why we must help States that want to protect families from 
the consequences of secret abortions. Children must receive parental 
consent for even minor surgical procedures. Indeed, Mr. President, many 
schools now require parental permission before they will dispense 
aspirin to a child.
  The profound, lasting physical and psychological effects of abortion 
demand that we protect States that guarantee parental involvement in 
the abortion decision, and that means seeing to it that outside parties 
cannot circumvent State parental notification and consent laws with 
impunity.
  Our families deserve this protection, our State laws deserve this 
protection, and most especially our daughters deserve the protection 
provided by the Child Custody Protection Act.
  I would like at this point to simply outline the provisions of the 
bill.
  To begin with, the legislation adopts each relevant State's 
definition of a minor. It would deem transportation of a minor across 
State lines in order for that minor to obtain an abortion, in 
abridgement of parental rights under a State's parental involvement 
law, to be a misdemeanor Federal offense.
  The legislation defines this abridgement of parental rights as the 
performance of an abortion on the minor without the parental 
involvement that would have been required if that minor had stayed in 
State.
  The Federal offense applies only to the non-parental, non-guardian 
adult who so transported the minor. The minor who obtained the abortion 
and her parents are specifically exempted from civil and criminal 
liabilities.
  Further, in this legislation ``parent or legal guardian'' includes an 
individual standing in loco parentis who has care and control of the 
minor, and with whom the minor regularly resides. In this way the bill 
addresses the situation of children living in the care of their 
relatives and other unique situations.
  The legislation also includes as an affirmative defense to the 
misdemeanor prosecution or civil action, that the defendant reasonably 
believed, based on information the defendant obtained directly from a 
parent of the individual or other compelling facts, that the minor had 
obtained appropriate consent or notification.
  Anyone convicted under this legislation would be subject to a fine or 
imprisonment not to exceed one year, or both.
  As I have said, Mr. President, this is a narrowly crafted law, 
intended specifically to aid in the enforcement of already existing, 
constitutionally valid State laws requiring parental involvement, or 
judicial waiver of that requirement, in any minor's decision whether or 
not to undergo an abortion. It is a modest law that does not seek to 
change States' underlying laws regarding abortion. It simply seeks to 
see to it that existing State parental involvement laws are protected 
from improper evasion and circumvention.
  I am aware, however, that there are a number of arguments floating 
around this Chamber and elsewhere against this legislation. It is to 
these arguments, each and every one of which I believe is clearly 
inaccurate or irrelevant that I would like to turn.
  First, some people have argued that this legislation is not 
constitutional on the grounds that it puts an improper, undue burden on 
the constitutional right to abortion.
  This is simply not true. The Supreme Court has long upheld most State 
laws requiring parental involvement in minors' abortions against 
challenges of this type. The Child Custody Protection Act would only 
apply where the State has in place such a constitutional State law. A 
Federal law that simply helps enforce State laws that themselves do not 
violate the right to an abortion cannot itself violate that right.
  Continuing on the issue of constitutionality, it has been argued that 
the Child Custody Protection Act violates the constitutional right to 
travel.
  But this argument misconstrues this legislation, the Constitution, 
and the constitutional right to travel. The courts have never held that 
the right to travel limits Congress's power to regulate interstate 
commerce.
  The right to travel limits States' powers to discriminate against 
newcomers and out-of-State residents.
  It does not limit Congress' power to protect State laws by 
prohibiting people who would circumvent them from using the channels of 
interstate commerce or travel.
  Presumably that is why nobody has doubted the constitutionality of 
the recently enacted Deadbeat Parents Punishment Act, which makes it a 
felony for anyone to travel in interstate or foreign commerce with 
intent to evade a support obligation to a child or spouse. Like the 
Child Custody Protection Act, it is constitutional because Congress is 
free to withdraw the channels of interstate travel from those seeking 
to evade valid State laws.
  Next, at a level only one step removed from constitutional issues, 
some have put forward the argument that this legislation would 
undermine the ability of States to serve as ``laboratories of 
democracy'' in our Federal system.
  What this argument overlooks is that in a Federal system there will 
always be conflicts between the laws of different States.
  And Congress has a responsibility to help resolve these conflicts in 
the interests of interstate commerce, and in the interest of 
maintaining fair and full application of the laws.
  What is more, it makes sense to handle the problem in this way 
because these conflicts are frequently resolved in favor of application 
of the law of the State of residence over the law of the State where 
some part of the conduct at issue has occurred.
  In particular, it has long been an accepted tenet of our Federal 
system that the State with primary policy making authority with respect 
to parent-child relations is the State where the parent and child 
reside. The Child Custody Protection Act essentially simply reinforces 
this well-established rule.
  Finally, I have heard from a number of sources the complaint that 
this legislation is unfair because it would not allow grandparents or 
other close relatives to stand-in for absent or abusive parents.
  Frankly, I find this complaint somewhat puzzling because there is 
nothing in the Child Custody Protection Act that in any way interferes 
with the proper role of grandparents and other close relatives in any 
child's upbringing.
  Parents, close relatives and, I might add, close friends, can and 
should play a role in helping minor girls face an event as important as 
an unexpected pregnancy.
  If the pregnant girl for some reason, including abuse, cannot talk to 
her parents on her own, her other relative or friend should help her go 
through her State's procedure for bypassing parental notification, or, 
if it is possible, intervene on her behalf with the parents.
  In this way, caring relatives can make a positive difference in a 
girl's life.
  Like most Americans, I firmly believe that most children would be 
lucky to have grandparents and other close relatives involved in their 
lives. But I do not believe that most parents would want other 
relatives to unilaterally take over their primary role in raising their 
children.

[[Page S10198]]

  In my view, States with parental involvement laws were wise to have 
enacted them, for the sake of parental rights, and especially for the 
sake of our daughters' health. The legislation before us fulfills the 
Federal Government's duty to protect these State laws from widespread 
circumvention through interstate travel. Far from undermining our 
Federal system, it upholds it in a manner fully consistent with the 
constitutional rights of everyone involved.
  A number of politicians, including President Clinton, have promised 
the American people that they would work to make abortions ``safe, 
legal and rare.''
  The Child Custody Protection Act addresses an important question of 
legality. It will protect State laws from those who would break them. 
It would uphold the rule of law and the important role States and State 
laws play in our Federal system.
  But an abortion conducted in violation of parental notification laws 
is not legal, even if performed in another State.
  Earlier I quoted Bruce Lucero, a doctor who once owned an abortion 
clinic, in which he performed some 45,000 abortions over the course of 
15 years.
  Dr. Lucero remains, in his words ``staunchly pro-choice.'' Dr. Lucero 
also supports this legislation.
  I hope my colleagues on the other side of the abortion issue will 
heed the warning he gave recently when he said:

       Too often, pro-choice advocates oppose laws that make 
     common sense simply because the opposition supports or 
     promotes them. The only way we can and should keep abortions 
     legal is to keep them safe. To fight laws that would achieve 
     this end does no one any good--not the pregnant teen-agers, 
     the parents or the pro-choice movement.

  Mr. President, this laws does make common sense. It will protect the 
health of pregnant teen-agers, and it should have the full support of 
the Members of this body, whatever their views on the underlying issue 
of abortion. It was passed in the other Chamber by an overwhelming 
margin. It passed the Senate Judiciary Committee and, in my view, it 
deserves to pass by a similar margin in the full Senate.
  I urge my colleagues to vote tomorrow in support of cloture on the 
motion to proceed to debate this issue.
  In closing, let me just say this, Mr. President. As I looked through 
the Congressional Record at the summation and discussion between the 
majority leader and Democratic leader yesterday, I was a little bit 
confused. I at least read the Democratic leader's statement to suggest 
he is of the opinion that the vote tomorrow might in some way shut off 
consideration of amendments and debate on this issue, but that is not 
the case, and I want to make sure our colleagues are aware that 
tomorrow's vote is simply on the motion to proceed, to permit us to 
begin discussing this legislation.
  It is not a motion for cloture on the substantive underlying bill 
and, indeed, virtually all of the amendments to this legislation that 
were brought in committee will still survive a motion for cloture on 
the underlying bill because they were germane amendments at that time 
and would, according to the Parliamentarian, remain germane, even if we 
were to have cloture invoked on the substantive legislation.
  For that reason, I hope our colleagues will think this issue--the 
question of whether or not we will allow strangers to circumvent State 
parental notification and consent laws and take children across State 
lines for the purpose of secretive abortions--that we should at least 
allow this issue to be debated here in the Senate.
  For that reason, I hope we will be able to invoke cloture on the 
legislation. And once we do that, we can have a good and thorough 
debate and discussion, and then pass this legislation so that families 
like the Farley family can be protected in the future and so that the 
children of America can be protected in the future and so that the 
families who live in States that have taken the action of passing 
parental involvement laws can be confident that those laws do mean 
something and that we in Washington are willing to support those laws 
and make sure that those laws are in fact enforceable.
  Mr. President, I yield the floor.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.

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