[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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