[Congressional Record Volume 145, Number 43 (Thursday, March 18, 1999)]
[Senate]
[Pages S2942-S2943]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ABRAHAM (for himself, Mr. Hatch, Mr. Lott, Mr. Sessions, 
        Mr. Nickles, Mr. Coverdell, Mr. Craig, Mr. Kyl, Mr. Enzi, Mr. 
        McCain, Mr. Hutchinson, Mr. Santorum, Mr. Brownback, Mr. 
        Inhofe, Mr. Smith of New Hampshire, Mr. Helms, Mr. Grassley, 
        and Mr. DeWine):
  S. 661. A bill to amend title 18, United States Code, to prohibit 
taking minors across State lines in circumvention of laws requiring the 
involvement of parents in abortion decisions; to the Committee on the 
Judiciary.


                      CHILD CUSTODY PROTECTION ACT

  Mr. ABRAHAM. Mr. President, today, I along with 19 of my colleagues 
will be re-introducing the Child Custody Protection Act. This 
legislation will make it a federal offense to transport a minor across 
state lines to obtain an abortion if this action circumvents a state 
parental involvement law.
  Last year, this bill received a majority of votes but fell short of 
the sixty votes needed for cloture. It is my hope that this year the 
Senate will listen to the 74 percent of Americans who favor parental 
consent prior to a minor girl receiving an abortion. This Baseline & 
Associates poll, conducted last summer, reveals that the American 
public favors parental consent laws and when asked specifically about 
this legislation, the American public is even more supportive. Eighty 
five percent of those who participated in the poll believed that minor 
girls should not be taken across state lines to obtain an abortion 
without their parents' knowledge.
  These poll numbers reinforce what common sense already tells us: 
parents need to be involved with the major medical and emotional 
decisions of their children. When they are not involved, the health and 
emotional well being of their child is in jeopardy.
  Last year, we heard from Joyce Farley, whose 13 year old daughter was 
raped, taken across state lines for a secret abortion by the rapist's 
mother, and dropped off 30 miles from home suffering from complications 
from an incomplete abortion. Mrs. Farley told of the trauma to her 
daughter from this stranger's actions. Luckily, Mrs. Farley found out 
about the abortion and could obtain appropriate medical care for her 
daughter. If this abortion had remained secret, Mrs. Farley's 
daughter's life could have been in danger.
  Whatever one's position on abortion, every American should recognize 
the crucial role of parents in their minor child's decision whether or 
not to undergo this procedure. Parental notification and consent laws 
exist for a reason. While most such laws provide for possible judicial 
bypass, they by nature intend to protect the rights and integrity of 
the family. More than 20 states have recognized the need to protect 
both the minor and the integrity of the family and have parental 
involvement laws in effect. My legislation adds no new provisions to 
state-enacted parental involvement laws. It does not impose parental 
involvement requirements on states that have not passed such laws. The 
Child Custody Protection Act simply prevents the undermining of 
parental involvement laws in states that have them.
  I hope my colleagues will support me in working to quickly pass this 
common sense legislation. I ask unanimous consent that the text of the 
bill and section by section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 661

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Child Custody Protection 
     Act''.

     SEC. 2. TRANSPORTATION OF MINORS IN CIRCUMVENTION OF CERTAIN 
                   LAWS RELATING TO ABORTION.

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 117 the following:

[[Page S2943]]

 ``CHAPTER 117A--TRANSPORTATION OF MINORS IN CIRCUMVENTION OF CERTAIN 
                       LAWS RELATING TO ABORTION

``Sec.
``2431. Transportation of minors in circumvention of certain laws 
              relating to abortion.

     ``Sec. 2431. Transportation of minors in circumvention of 
       certain laws relating to abortion

       ``(a) Offense.--
       ``(1) Generally.--Except as provided in subsection (b), 
     whoever knowingly transports an individual who has not 
     attained the age of 18 years across a State line, with the 
     intent that such individual obtain an abortion, and thereby 
     in fact abridges the right of a parent under a law requiring 
     parental involvement in a minor's abortion decision, in force 
     in the State where the individual resides, shall be fined 
     under this title or imprisoned not more than one year, or 
     both.
       ``(2) Definition.--For the purposes of this subsection, an 
     abridgement of the right of a parent occurs if an abortion is 
     performed on the individual, in a State other than the State 
     where the individual resides, without the parental consent or 
     notification, or the judicial authorization, that would have 
     been required by that law had the abortion been performed in 
     the State where the individual resides.
       ``(b) Exceptions.--(1) The prohibition of subsection (a) 
     does not apply if the abortion was necessary to save the life 
     of the minor because her life was endangered by a physical 
     disorder, physical injury, or physical illness, including a 
     life endangering physical condition caused by or arising from 
     the pregnancy itself.
       ``(2) An individual transported in violation of this 
     section, and any parent of that individual, may not be 
     prosecuted or sued for a violation of this section, a 
     conspiracy to violate this section, or an offense under 
     section 2 or 3 based on a violation of this section.
       ``(c) Affirmative Defense.--It is an affirmative defense to 
     a prosecution for an offense, or to a civil action, based on 
     a violation of this section that the defendant reasonably 
     believed, based on information the defendant obtained 
     directly from a parent of the individual or other compelling 
     facts, that before the individual obtained the abortion, the 
     parental consent or notification, or judicial authorization 
     took place that would have been required by the law requiring 
     parental involvement in a minor's abortion decision, had the 
     abortion been performed in the State where the individual 
     resides.
       ``(d) Civil Action.--Any parent who suffers legal harm from 
     a violation of subsection (a) may obtain appropriate relief 
     in a civil action.
       ``(e) Definitions.--For the purposes of this section--
       ``(1) a law requiring parental involvement in a minor's 
     abortion decision is a law--
       ``(A) requiring, before an abortion is performed on a 
     minor, either--
       ``(i) the notification to, or consent of, a parent of that 
     minor; or
       ``(ii) proceedings in a State court; and
       ``(B) that does not provide as an alternative to the 
     requirements described in subparagraph (A) notification to or 
     consent of any person or entity who is not described in that 
     subparagraph;
       ``(2) the term `parent' means--
       ``(A) a parent or guardian;
       ``(B) a legal custodian; or
       ``(C) a person standing in loco parentis who has care and 
     control of the minor, and with whom the minor regularly 
     resides;

     who is designated by the law requiring parental involvement 
     in the minor's abortion decision as a person to whom 
     notification, or from whom consent, is required;
       ``(3) the term `minor' means an individual who is not older 
     than the maximum age requiring parental notification or 
     consent, or proceedings in a State court, under the law 
     requiring parental involvement in a minor's abortion 
     decision; and
       ``(4) the term `State' includes the District of Columbia 
     and any commonwealth, possession, or other territory of the 
     United States.''.
       (b) Clerical Amendment.--The table of chapters for part I 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 117 the following new 
     item:`Q02
``117A. Transportation of minors in circumvention of certain laws 
  relating to abortion.........................................2431.''.
         .....................................................

     The Child Custody Protection Act--Section-by-Section Analysis

     Section 1. Short title
       This section states that the short title of this bill is 
     the ``Child Custody Protection Act.''
     Section 2. Transportation of minors to avoid certain laws 
         relating to abortion
       Section 2(a) amends title 18 of the United States Code by 
     inserting after chapter 117 a proposed new chapter 117A 
     titled ``Transportation of minors to avoid certain laws 
     relating to abortion,'' within which would be included a new 
     section 2431 on this subject.
       Subsection (a) of proposed section 2431 outlaws the knowing 
     transportation across a State line of a person under 18 years 
     of age with the intent that she obtain an abortion, in 
     abridgement of a parent's right of involvement according to 
     State law. This subsection requires only knowledge by the 
     defendant that he or she was transporting the person across 
     State lines with the intent that she obtain an abortion. It 
     does not require that the transporter know the requirement of 
     the home State law, know that they have not been complied 
     with, or indeed know anything about the existence of the 
     State law. By the same token, it does not require that the 
     defendant know that his or her actions violate Federal law, 
     or indeed know anything about the Federal law. A reasonable 
     belief that parental notice or consent, or judicial 
     authorization, has been given, is an affirmative defense 
     whose terms are set out in subsection (c).
       Subsection (a), paragraph (1), imposes a maximum of 1 year 
     imprisonment or a fine, or both.
       Subsection (a), paragraph (2), specifies the criteria for a 
     violation of the parental right under this statute as 
     follows: an abortion must be performed on a minor in a State 
     other than the minor's residence and without the parental 
     consent or notification, or the judicial authorization, that 
     would have been required had the abortion been performed in 
     the minor's State or residence.
       Subsection (b), paragraph (1) specifies that subsection (a) 
     does not apply if the abortion is necessary to save the life 
     of the minor. This subsection is not intended to preempt any 
     other exceptions that a State parental involvement law that 
     meets the definitions set out in subsection (e)(1) and (e)(2) 
     may recognize.
       Subsection (b), paragraph (2), clarifies that neither the 
     minor being transported nor her parents may be prosecuted or 
     sued for a violation of this bill.
       Subsection (c) provides an affirmative defense to 
     prosecution or civil action based on violation of the act 
     where the defendant reasonably believed, based on information 
     obtained directly from the girl's parent or other compelling 
     factors, that the requirements of the girl's State of 
     residence regarding parental involvement or judicial 
     authorization in abortions had been satisfied. A minor's own 
     assertion to a defendant that her parents knew or had 
     consented would not, by itself, constitute sufficient basis 
     to make out this affirmative defense.
       Subsection (d) establishes a civil cause of action for a 
     parent who suffers legal harm from a violation of subsection 
     (a).
       Subsection (e) sets forth definitions of certain terms in 
     this bill.
       Subsection (e)(1)(A) defines ``a law requiring parental 
     involvement in a minor's abortion decision'' to be a law 
     requiring either ``the notification to, or consent of, a 
     parent of that minor or proceedings in a State court.''
       Subsection (e)(1)(B) stipulates that a law conforming to 
     the definition in (e)(1)(A) cannot provide notification to or 
     consent of any person or entity other than a ``parent'' as 
     defined in the subsequent section.
       Subsection (e)(2) defines ``parent'' to mean a parent or 
     guardian, or a legal custodian, or a person standing in loco 
     parentis (if that person has ``care and control'' of the 
     minor and is a person with whom the minor ``regularly 
     resides'') and who is designated by the applicable State 
     parental involvement law as the person to whom notification, 
     or from whom consent, is required. In this context, a person 
     in loco parentis has the meaning it has at common law: a 
     person who effectively functions as a child's guardian, but 
     without the legal formalities of guardianship having been 
     met. It would not include individuals who are not truly 
     exercising the responsibilities of parents, such as an adult 
     boyfriend with whom the minor may be living.
       Subsection (e)(3) defines ``minor'' to mean a person not 
     older than the maximum age requiring parental notification or 
     consent, or proceedings in a State court, under the parental 
     involvement law of the State, where the minor resides.
       Subsection (E)(4) defines ``State'' to include the District 
     of Columbia ``and any commonwealth, possession, or other 
     territory of the United States.''
       Section 2(b) is a clerical amendment to insert the new 
     chapter in the table of chapters for part I of title 18.
                                 ______