[House Report 105-605]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-605
_______________________________________________________________________


 
                      CHILD CUSTODY PROTECTION ACT

                                _______
                                

 June 25, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3682]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3682) to amend title 18, United States Code, to prohibit 
taking minors across State lines to avoid laws requiring the 
involvement of parents in abortion decisions, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Hearings.........................................................    18
Committee Consideration..........................................    18
Vote of the Committee............................................    18
Committee Oversight Findings.....................................    24
Committee on Government Reform and Oversight Findings............    24
New Budget Authority and Tax Expenditures........................    24
Congressional Budget Office Estimate.............................    25
Constitutional Authority Statement...............................    26
Section-by-Section Analysis and Discussion.......................    26
Changes in Existing Law Made by the Bill, as Reported............    27
Dissenting Views.................................................    30

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

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

SEC. 2. TRANSPORTATION OF MINORS TO AVOID CERTAIN LAWS RELATING TO 
                    ABORTION.

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

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

``Sec.
``2401. Transportation of minors to avoid certain laws relating to 
abortion.

``Sec. 2401. Transportation of minors to avoid 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, of 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 parent is 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:

``117A. Transportation of minors to avoid certain laws         2401.''.
relating to abortion.

                          Purpose and Summary

    H.R. 3682, the Child Custody Protection Act, has two 
primary purposes. The first is to protect the rights of parents 
to be involved in the medical decisions of their minor 
daughters. The second is to protect the health and safety of 
children by preventing valid and constitutional state parental 
involvement laws from being circumvented.
    To achieve these purposes, H.R. 3682 makes it a federal 
offense to knowingly transport a minor across a state line with 
the intent that she obtain an abortion, in circumvention of a 
state's parental consent or parental notification law. 
Violation of the Act is a Class One misdemeanor, carrying a 
fine of up to $100,000 and incarceration of up to one year.
    H.R. 3682, introduced by Congresswoman Ileana Ros-Lehtinen, 
will strengthen the effectiveness of state laws designed to 
protect children from health and safety risks. In many cases, 
only a girl's parents know of her prior psychological and 
medical history, including allergies to medication. Also, 
parents are usually the only people who can provide 
authorization for post-abortion medical procedures or the 
release of pertinent data from family physicians. When a 
pregnant girl is taken to have an abortion without her 
parents'' knowledge, none of these precautions can be taken. 
Thus, when parents are not involved, the risks to the minor 
girl's health significantly increase. H.R. 3682 is designed to 
protect state laws which safeguard minor girls' physical and 
emotional health by ensuring parental involvement in their 
abortion decision.
    H.R. 3682 does not supercede, override, or in any way alter 
existing state laws regarding minors' abortions. Nor does the 
Act impose any parental notice or consent requirement on any 
state. H.R. 3682 addresses interstate transportation of minors 
in order to circumvent valid, existing state laws, and uses 
Congress' authority to regulate interstate activity to protect 
those laws from evasion.

                Background and Need for the Legislation

    H.R. 3682, the Child Custody Protection Act, is designed to 
address the problem of people transporting minor girls across 
state lines in defiance of parental consent and notification 
laws. Many states have laws that require the consent or 
notification of at least one parent, or court authorization, 
before a minor can obtain an abortion. Yet despite court 
approval of and overwhelming public support for these laws,\1\ 
vulnerable children are taken from their families to out-of-
state abortion clinics in flagrant disregard for the legal 
protections that many states have enacted. In 1995, Kathryn 
Kolbert, an attorney with the pro-abortion Center for 
Reproductive Law and Policy, stated, ``There are thousands of 
minors who cross state lines for an abortion every year and who 
need the assistance of adults to do that.'' \2\
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    \1\ A 1996 CNN/USA Today survey conducted by the Gallup 
Organization revealed that 74 percent of Americans support parental 
consent before an abortion is performed on a girl under the age of 18. 
Parental notification laws receive even greater support. A 1992 
national poll by the Wirthlin Group found that 80 percent of Americans 
support requiring parental notification before an abortion is performed 
on a girl under the age of 18.
    \2\ See ``Labor of Love is Deemed Criminal,'' The Nat'l L.J., Nov. 
11, 1996.
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    According to Professor Teresa Collett of the South Texas 
College of Law, who testified before the Subcommittee on the 
Constitution:

          Differing regulations allow opportunistic behavior by 
        those who seek to avoid parental involvement, not out 
        of concern for the well-being of the pregnant girl, but 
        out of a desire to evade responsibility or avoid 
        discovery of criminal acts. By transporting the 
        pregnant girl from a state that requires parental 
        involvement to one that has no such requirements, it is 
        presently possible to obtain abortion services with no 
        knowledge on the part of the girl's parents. This 
        evasion is troubling on two counts: First, it 
        forecloses any attempts by the parents to assist their 
        daughter in her decision; \3\ and second, it deprives 
        the girl of the protection afforded by a judicial 
        assessment of the motivations of those urging her to 
        obtain an abortion.\4\ It is these harms that the Child 
        Custody Protection Act attempts to remedy.\5\
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    \3\ In her testimony, infra, Professor Collett cited the following:

        ``These cases demonstrate a willingness to protect from 
      unjustified state interference the parental right to 
      structure the education and religious beliefs of one's 
      children. Likewise, in this case we encounter a state 
      intrusion on this parental right. Coercing a minor to 
      obtain an abortion or to assist in procuring an abortion 
      and to refrain from discussing the matter with the parents 
      unduly interferes with parental authority in the household 
      and with the parental responsibility to direct the rearing 
      of their child. This deprives the parents of the 
      opportunity to counter influences on the child the parents 
      find inimical to their religious beliefs or the values they 
      wish instilled in their children.'' Arnold v. Board of 
      Educ. of Escambia County Ala., 880 F.2d 305 at 312-14 (11th 
      Cir. 1989). See also Planned Parenthood Assn. of Atlanta 
      Area, Inc. v. Miller, 934 F.2d 1462 (11th Cir. 1991) (state 
      interest in family integrity and protecting adolescents); 
      Planned Parenthood League v. Bellotti, 868 F.2d 459 (1st 
---------------------------------------------------------------------------
      Cir. 1989).

    \4\ In her testimony, infra, Professor Collett cited: In re Jane 
Doe, 566 N.E. 2d 1181 (Ohio 1990) (refusing to adopt specific factors 
for determining maturity).
    \5\ Hearing on H.R. 3682, the Child Custody Protection Act, before 
the Subcommittee on the Constitution of the House Committee on the 
Judiciary, 105th Cong., 2d Sess. (May 21, 1998) (statement of Professor 
Teresa Stanton Collett, South Texas College of Law) [hereinafter 
Collett Testimony].
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                              the problem

    Many states have decided that involvement of a parent in 
his daughter's decision to abort her child is crucial. Among 
other important considerations, parental involvement increases 
the probability that, if a girl suffers complications after an 
abortion, she will receive prompt and appropriate medical 
attention. Indeed, a perforated uterus has been considered a 
``normal risk'' of the abortion procedure.\6\ Untreated, a 
perforated uterus may result in an infection, complicated by 
fever, endometritis, and parametritis.\7\ The New England 
Journal of Medicine describes the risk of such infection this 
way:
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    \6\ Reynier v. Delta Women's Clinic, 359 So.2d 733 (La. Ct. App. 
1978).
    \7\ Phillip G. Stubblefield and David A. Grimes, ``Current 
Concepts: Septic Abortions,'' New England J. Med. 310 (Aug. 4, 1994).

          The risk of death from postabortion sepsis 
        [infection] is highest for young women, those who are 
        unmarried, and those who undergo procedures that do not 
        directly evacuate the contents of the uterus. * * * A 
        delay in treatment allows the infection to progress to 
        bacteremia, pelvic abscess, septic pelvic 
        thrombophlebitis, disseminated intravascular 
        coagulophy, septic shock, renal failure, and death.\8\
---------------------------------------------------------------------------
    \8\ Id.

Without the knowledge that their daughter has had an abortion, 
parents are incapable of providing an adequate medical history 
to physicians called upon to treat any complications the girl 
might experience. This may delay proper diagnosis and further 
imperil the girl's health.

Testimony from parents

    The Subcommittee on the Constitution heard testimony from 
two mothers whose daughters were secretly taken for abortions, 
with devastating consequences.
    Joyce Farley, the mother of a minor girl, reported how her 
12-year-old daughter was provided alcohol, raped, and then 
taken out of state by the rapist's mother for an abortion.\9\ 
In the words of Joyce Farley, the abortion was arranged to 
destroy evidence--evidence that her 12-year-old daughter had 
been raped.\10\ On August 31, 1995, her daughter, who had just 
turned 13, underwent a dangerous medical procedure without 
anyone present who knew her past medical history (as shown by 
the false medical history that was given to the 
abortionist).\11\ Following the abortion, the mother of the 
rapist dropped off the child in another town 30 miles from the 
child's home.\12\ The child returned to her home with severe 
pain and bleeding which revealed complications from an 
incomplete abortion.\13\ When Joyce Farley contacted the 
original clinic that performed the abortion, the clinic told 
her that the bleeding was normal and to increase her daughter's 
Naprosyn, a medication given to her for pain, every hour if 
needed.\14\ Fortunately, being a nurse, Ms. Farley knew this 
advice was wrong and could be harmful, but her daughter would 
not have known this.\15\ Ms. Farley's daughter, because of her 
mother's intervention, ultimately received further medical care 
and a second procedure to complete the abortion.\16\
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    \9\ Hearing on H.R. 3682, the Child Custody Protection Act, before 
the Subcommittee on the Constitution of the House Committee on the 
Judiciary, 105th Cong., 2d Sess. (May 21, 1998) (statement of Joyce 
Farley).
    \10\ Id.
    \11\ Id.
    \12\ Id.
    \13\ Id.
    \14\ Id.
    \15\ Id.
    \16\ Id.
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    Eileen Roberts' 13-year-old daughter was encouraged, by a 
boyfriend and his adult friend, to obtain a secret 
abortion.\17\ The adult friend drove Ms. Roberts' daughter to 
the abortion clinic 45 miles away from her home and even paid 
for their daughter to receive the abortion.\18\ After two weeks 
of observing their daughter's depression, Ms. Roberts and her 
husband discovered that their child had an abortion from a 
questionnaire they found under her pillow, which their daughter 
had failed to return to the abortion clinic.\19\ As a result of 
their daughter's depression, their daughter was 
hospitalized.\20\ Upon a physical examination, doctors found 
that the abortion had been incompletely performed and required 
surgery to repair the damage done by the abortionist.\21\ The 
hospital called Ms. Roberts and told her that they could not do 
reparative surgery without a signed consent form.\22\ The 
following year, Ms. Roberts' daughter developed an infection 
and was diagnosed with having pelvic inflammatory disease, 
which again required a two-day hospitalization for IV 
antibiotic therapy and requiring a signed consent form.\23\ Ms. 
Roberts and her family were responsible for over $27,000 in 
medical costs all of which resulted from this one secret 
abortion.\24\
---------------------------------------------------------------------------
    \17\ Hearing on H.R. 3682, the Child Custody Protection Act, before 
the Subcommittee on the Constitution of the House Committee on the 
Judiciary, 105th Cong., 2d Sess. (May 21, 1998) (statement of Eileen 
Roberts).
    \18\ Id. While Ms. Roberts' daughter was not taken to another 
state, her story is illustrative of the harms involved when a child is 
secretly taken away from her parents for an abortion. After this 
experience, Ms. Roberts formed an organization called Mothers Against 
Minor Abortions (MAMA). Ms. Roberts testified: ``I speak today for 
those parents I know around the country, whose daughters have been 
taken out of state for their abortions.'' Id.
    \19\ Id.
    \20\ Id.
    \21\ Id.
    \22\ Id.
    \23\ Id.
    \24\ Id.
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Widespread circumvention of State laws

    States with parental involvement laws are becoming 
increasingly aware of those laws being circumvented. Abortion 
clinics often blatantly encourage the evasion of state parental 
consent laws. Abortion clinics regularly advertise their ``no 
parental consent'' status in the ``yellow pages'' thereby 
encouraging and profiting from such interstate activities. The 
following is a survey of several states and their experience 
with evasion of parental involvement laws.
            Pennsylvania
    Pennsylvania passed a parental consent law in 1994. News 
reports have repeatedly maintained that Pennsylvania teenagers 
are going out of state to New Jersey and New York for 
abortions. In fact, in 1995 The New York Times reported, 
``Planned Parenthood in Philadelphia has a list of clinics, 
from New York to Baltimore, to which they will refer teenagers, 
according to the organization's executive director, Joann 
Coombs.'' Moreover, the Times gave accounts of clinics which 
had seen an increase in patients from Pennsylvania. One clinic, 
in Cherry Hill, New Jersey reported seeing a threefold increase 
in Pennsylvania teenagers coming for abortions, to a rate of 
approximately six girls per week. Likewise, a clinic in Queens, 
New York reported that it was not unusual to see Pennsylvania 
teenagers as patients in 1995, though earlier it had been 
rare.\25\
---------------------------------------------------------------------------
    \25\ ``Teenagers Cross State Lines in Abortion Exodus,'' The New 
York Times, Dec. 18, 1995.
---------------------------------------------------------------------------
    In the period just prior to the Pennsylvania laws taking 
effect, efforts were underway to make it easier for teenagers 
to go out of state for abortions. For instance, Newsday 
reported that ``[c]ounselors and activists are meeting to plot 
strategy and printing maps with directions to clinics in New 
York, New Jersey, Delaware and Washington, D.C., where 
teenagers can still get abortions without parental consent. * * 
* `We will definitely be encouraging teenagers to go out of 
state,' said Shawn Towey, director of the Greater Philadelphia 
Woman's Medical Fund, a nonprofit organization that gives money 
to women who can't afford to pay for their abortions.'' \26\
---------------------------------------------------------------------------
    \26\ Charles V. Zehren, ``As Pennsylvania Limits Access, Fight 
Rages On,'' Newsday, Feb. 22, 1994, at 13.
---------------------------------------------------------------------------
    Moreover, some abortion clinics in nearby states, such as 
New Jersey and Maryland, use the lack of parental involvement 
requirements in their own states as a ``selling point'' in 
advertising directed at minors in Pennsylvania. One ad that 
appeared in the 1996 Yellow Pages for Scranton, Pennsylvania 
was purchased by Metropolitan Medical Associates, an abortion 
clinic in Englewood, New Jersey. Unlike Pennsylvania, which has 
a parental consent law, in New Jersey, as the ad proclaims, 
``No Parental Consent Required.'' \27\ Another ad appeared in 
the 1997-98 Yellow Pages for Harrisburg, Pennsylvania. The 
purchaser of the ad, Hillcrest Women's Medical Center, 
maintains a clinic in Harrisburg, but the ad also promotes the 
option of going to a sister clinic in Rockville, Maryland 
(about 100 miles away) where, the ad notes, there is ``No 
Waiting Period'' and ``No Parental Consent'' requirement.
---------------------------------------------------------------------------
    \27\ It is noteworthy that in September, 1996, a reporter for The 
Record newspaper published in nearby Hackensack, New Jersey, was told 
by two staff abortionists at the Metropolitan Medical clinic that at 
least 1,500 partial-birth abortions are performed in the clinic 
annually. ``Most are teenagers,'' one doctor told the newspaper. See 
Ruth Padawer, ``The Facts on Partial-Birth Abortion,'' The Record, 
Sept. 15, 1996, at RO4.
---------------------------------------------------------------------------
            Missouri
    In 1997, a study in the American Journal of Public Health 
reported that a main abortion provider in Missouri refers 
minors out of state for abortions if the girl does not want to 
involve her parents. Reproductive Health Services, which 
performs over half of the abortions performed in Missouri, 
refers minors to the Hope Clinic for Women in Granite City, 
Illinois. Research has found that based on the available data, 
the frequency of a minor traveling out of state for an abortion 
increased by over 50 percent when Missouri's parental consent 
law went into effect. Furthermore, it was found that compared 
to older women, underage girls were significantly more likely 
to travel out of state to have their abortions.\28\
---------------------------------------------------------------------------
    \28\ Charlotte Ellertson, ``Mandatory Parental Involvement in 
Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and 
Indiana,'' Am. J. Pub. Health, August 1997.
---------------------------------------------------------------------------
            Massachusetts
    Massachusetts has also seen an increase in out-of-state 
abortions performed on its teenage residents since the state's 
parental consent law went into effect in April of 1981, 
according to a published study and anecdotal information. A 
1986 study published in the American Journal of Public Health 
found that in the four months prior to implementation of the 
parental consent law, an average of 29 Massachusetts minors 
obtained out-of-state abortions each month (in Rhode Island, 
New Hampshire, Connecticut, and New York--data for Maine was 
not available). After the parental consent law was implemented, 
however, the average jumped to between 90 and 95 out-of-state 
abortions per month (using data from the five states of Rhode 
Island, New Hampshire, Connecticut, New York, and Maine)--
representing one-third of the abortions obtained by 
Massachusetts' minors.\29\
---------------------------------------------------------------------------
    \29\ Virginia G. Cartoof and Lorraine V. Klerman, ``Parental 
Consent for Abortion: Impact of the Massachusetts Law,'' Am. J. Pub. 
Health, April 1986, at 398.
---------------------------------------------------------------------------
    The study noted that due to what the authors described as 
``astute marketing,'' one abortion clinic in New Hampshire was 
able to nearly double the monthly average of abortions 
performed on Massachusetts minors (from 14 in 1981 to 27 in 
1982). The abortionist ``began advertising in the 1982 Yellow 
Pages of metropolitan areas along the northern Massachusetts 
border, stating `consent for minors not required.' '' \30\
---------------------------------------------------------------------------
    \30\ Id.
---------------------------------------------------------------------------
    In April of 1991, the Planned Parenthood League of 
Massachusetts estimated that approximately 1,200 Massachusetts 
minor girls travel out of state for abortions each year, the 
majority of them to New Hampshire. Planned Parenthood said that 
surveys of New Hampshire clinics revealed an average of 100 
appointments per month by Massachusetts minors.\31\
---------------------------------------------------------------------------
    \31\ ``Mass. Abortion Laws Push Teens Over Border,'' Boston Herald, 
April 7, 1991.
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            Mississippi
    A 1995 study of the effect of Mississippi's parental 
consent law revealed that Mississippi has also experienced an 
increase in the number of minors traveling out of state for 
abortion. The study, published in Family Planning Perspectives, 
compared data for the five months before the parental consent 
law took effect in June of 1993, with data for the six months 
after it took effect, and found that ``[a]mong Mississippi 
residents having an abortion in the state, the ratio of minors 
to older women decreased by 13% * * * [h]owever, this decline 
was largely offset by a 32% increase in the ratio of minors to 
older women among Mississippi residents traveling to other 
states for abortion services.'' \32\
---------------------------------------------------------------------------
    \32\ Stanley K. Henshaw, ``The Impact of Requirements for Parental 
Consent on Minors' Abortions in Mississippi,'' Fam. Planning 
Perspectives, June 1995.
---------------------------------------------------------------------------
    Based on the available data, the study suggests that the 
Mississippi parental consent law appeared to have ``little or 
no effect on the abortion rate among minors but a large 
increase in the proportion of minors who travel to other states 
to have abortions, along with a decrease in minors coming from 
other states to Mississippi.'' \33\
---------------------------------------------------------------------------
    \33\ Id.
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            Virginia
    Grace S. Sparks, executive director of the Virginia League 
of Planned Parenthood, predicted in February of 1997 that if 
Virginia were to pass a parental notification law, teenagers 
would travel out of state for abortions. ``In every state where 
they've passed parental notification, *  *  * there's been an 
increase in out-of-state abortions,'' she said, adding, ``I 
suspect that that's what will happen in Virginia, that teen-
agers who cannot tell their parents *  *  * will go out of 
state and have abortions *  *  *.'' \34\
---------------------------------------------------------------------------
    \34\ Lisa A. Singh, ``Those Are the People Who Are Being Hurt,'' 
Style Weekly, Feb. 11, 1997.
---------------------------------------------------------------------------
    Virginia's parental notification law took effect on July 1, 
1997. According to a recent article in The Washington Post, 
initial reports indicate that abortions performed on Virginia 
minors have dropped 20 percent during the first five months 
that the law has been in effect (from 903 abortions during the 
same time period in 1996 to approximately 700 abortions in 
1997). The article suggests, however, that Virginia teenagers 
are traveling to the District of Columbia in order to obtain an 
abortion without involving their parent. In fact, the National 
Abortion Federation (NAF), which runs a toll-free national 
abortion hotline, said that calls from Virginia teenagers 
seeking information on how to obtain an abortion out-of-state 
were the largest source of teenage callers seeking out-of-state 
abortions, at seven to 10 calls per day. NAF hotline operator 
Amy Schriefer has gone so far as to talk a Richmond area 
teenage girl through the route (involving a Greyhound bus and 
the Metro's Red Line) to obtain an abortion in the District of 
Columbia.\35\
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    \35\ ``Fewer Teens Receiving Abortions In Virginia,'' The 
Washington Post, March 3, 1998.
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Adult male predators and evasion of parental involvement laws

    Importantly, evasion of a state's parental involvement law 
can sometimes be part of an effort to cover up commission of a 
crime.
    The majority of teenage girls who become pregnant are 
impregnated by adult men, according to the California Center 
for Health Statistics.\36\ One study of 46,500 school-age 
mothers in California found that two-thirds of the girls were 
impregnated by adult, postschool fathers, with the median age 
of the father being 22 years.\37\ Further, one study reports 
that 58 percent of the time it is the girl's boyfriend who 
accompanies a girl for an abortion when her parents have not 
been told about the pregnancy.\38\ Obviously, many of these 
males are vulnerable to statutory rape charges, thus providing 
a strong incentive to pressure the much younger girl to agree 
to an abortion without revealing the pregnancy to the parents. 
Currently, such a male often can evade parental consent 
requirements by driving his victim across state lines.
---------------------------------------------------------------------------
    \36\ See Collett Testimony (citing Mike A. Males, ``Adult 
Involvement in Teenage Childbearing and STD,'' Lancet, vol. 346 (July 
1995)).
    \37\ See Mike A. Males and Kenneth S.Y. Chew, ``The Ages of Fathers 
in California Adolescent Births, 1993,'' Am. J. Pub. Health (April 
1996).
    \38\ See Stanley Henshaw and Kathryn Post, ``Parental Involvement 
in Minors' Abortion Decisions,'' Fam. Planning Perspectives, vol. 24, 
no. 5 (September/October 1992).
---------------------------------------------------------------------------
    According to Professor Collett, it is becoming increasingly 
clear that most underage pregnancies are the result of a lack 
of sexual restraint by adult men.\39\ In a study of over 46,000 
pregnancies by school-age girls in California, researchers 
found that ``71%, or over 33,000, were fathered by adult post-
high-school men whose mean age was 22.6 years, an average of 5 
years older than the mothers. *  *  * Even among junior high 
school mothers aged 15 or younger, most births are fathered by 
adult men 6-7 years their senior. Men aged 25 or older father 
more births among California school-age girls than do boys 
under age 18.'' \40\ Other studies have found that most teenage 
pregnancies are the result of predatory practices by men who 
are substantially older.\41\
---------------------------------------------------------------------------
    \39\ See Collett Testimony.
    \40\ Mike A. Males, ``Adult Involvement in Teenage Childbearing and 
STD,'' Lancet, vol. 64, (July 8, 1995)(emphasis added).
    \41\ See Collett Testimony.
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               effect of the child custody protection act

    H.R. 3682 builds upon two of the few points of agreement in 
the national debate over abortion: the desirability of parental 
involvement in a minor's abortion decision and the need to 
protect a pregnant minor's physical health.
    The Act does not establish a national requirement of 
parental consent or notification prior to the performance of an 
abortion on young girls who lack sufficient maturity to 
determine whether abortions are in their best interest. Nor 
does it attempt to regulate any purely intrastate activities 
related to the procurement of abortion services, or reverse or 
modify any existing case law defining the ability of non-
custodians to encourage, counsel, or assist young girls in 
obtaining secret abortions. H.R. 3682 will simply help to 
ensure the effectiveness of state laws designed to provide a 
layer of protection against these dangers to children's health 
and safety.
    H.R. 3682 would also help to foreclose one proven strategy 
of escaping penalty by sexual predators and their accomplices. 
Men who engage in acts that states classify as statutory rape 
would no longer be able to pressure their young victims into 
crossing state lines to obtain abortions without the knowledge 
or consent of the girl's parents, or judicial approval, when 
that knowledge or consent or approval is required by the state 
where the girl resides.
    A common but misguided criticism of this legislation is 
that it will isolate pregnant teenagers, forcing them to face 
their decision alone. The Act, however, does not forbid 
assisting a minor in her decision about whether to have an 
abortion, but merely requires that the person assisting a young 
pregnant girl abide by the state law of the girl's residence. 
``Instead of secreting the girl across state lines to obtain an 
abortion, then returning her to the very home that abortion 
rights activists would have us imagine as abusive and violent, 
the friend could either help the girl inform her parents of her 
condition in order to comply with the state notification or 
consent law, or help the girl obtain judicial approval to 
consent to the abortion.'' \42\
---------------------------------------------------------------------------
    \42\ Collett Testimony.
---------------------------------------------------------------------------

                        constitutional analysis

Constitutional authority for the child custody protection act

    H.R. 3682 is a regulation of commerce among the several 
states. Commerce, as that term is used in the Constitution, 
includes travel whether or not that travel is for reasons of 
business.\43\ To transport another person across state lines is 
to engage in commerce among the states. There is thus no need 
to address the scope of Congress' power to regulate activity 
that is not, but that affects, commerce among the States.\44\ 
Under current Supreme Court jurisprudence, Congress can adopt 
rules concerning interstate commerce, such as this one, for 
reasons related primarily to local activity rather than 
commerce itself.\45\
---------------------------------------------------------------------------
    \43\ See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
    \44\ See A.L.A. Schechier Poultry Corp. v. United States, 295 U.S. 
495 (1935); Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. 
McClung, 379 U.S. 294 (1964); United States v. Lopez, 514 U.S. 549 
(1995).
    \45\ United States v. Darby, 312 U.S. 100 (1941). Therefore, even 
if H.R. 3682 reflected a substantive congressional policy concerning 
abortion and domestic relations it would be a valid exercise of the 
commerce power because it is a regulation of interstate commerce.
---------------------------------------------------------------------------
    The interstate transportation of minors for the purposes of 
securing an abortion is, therefore, clearly a form of 
interstate commerce which the Constitution expressly empowers 
Congress to regulate.\46\ H.R. 3682 only regulates conduct 
which involves interstate movement, and only the national 
government is expressly authorized by the Constitution to 
address this activity. Even under the more limited view of the 
commerce power that has prevailed in the past, H.R. 3682 would 
be within Congress' power. H.R. 3682 does not rest primarily on 
a congressional policy independent of that of the state that 
has primary jurisdiction to regulate the subject matter 
involved. Rather, in H.R. 3682 Congress is seeking to ensure 
compliance with the laws of the state primarily concerned, 
which is the state in which the minor resides. Congress, 
therefore, is dealing with a problem that arises from the 
federal union, not making its own decisions concerning local 
matters. H.R. 3682 is a federal law that regulates interstate 
commerce as a means of protecting children's health and safety, 
providing a federal penalty for its violation. The Supreme 
Court described the power granted Congress by the Commerce 
Clause as a ``positive power,'' a power ``to govern affairs 
which the individual states, with their limited territorial 
jurisdictions, are not fully capable of governing.'' \47\ 
Congress has a long history of passing legislation to help 
states solve problems that are beyond local solutions.\48\ H.R. 
3682 is a federal act that will help states meaningfully 
enforce their parental consent and involvement laws.
---------------------------------------------------------------------------
    \46\ U.S. Constitution, Article I, Section 8, clause 3.
    \47\ See United States v. South-Eastern Underwriters Ass'n, 322 
U.S. 533 (1944).
    \48\ See, e.g., Perez v. United States, 402 U.S. 146 (1971) 
(legislative history of the Consumer Credit Protection Act, 18 U.S.C. 
891 et seq., indicating that loansharking `` `simply cannot be solved 
by the states alone' ``); United States v. Sheridan, 329 U.S. 379 
(1946) (in adopting the National Stolen Property Act, 18 U.S.C. 2314, 
Congress ``contemplated coming to the aid of the states in detecting 
and punishing criminals'' who ``make a successful get away and thus 
make the state's detecting and punitive processes impotent''); United 
States v. Bishop, 66 F.3d 569 (3rd Cir.) (Congress found in considering 
the Anti Car Theft Act of 1992, 18 U.S.C. 2119, that ``significant 
barriers to [state and local] enforcement'' had resulted in car thieves 
escaping punishment), cert. denied, 133 L. Ed. 2d 529, 116 S.Ct. 681 
(1995).
---------------------------------------------------------------------------

Roe v. Wade and the Child Custody Protection Act

    In Roe v. Wade, \49\ a majority of the Supreme Court found 
that the Fourteenth Amendment's ``due process'' clause, which 
provides that no state shall deprive any person of ``life, 
liberty, or property'' without due process of law, includes 
within it a ``substantive'' component, which should be 
understood to bar a state from prohibiting abortions under some 
circumstances. This ``substantive'' component of the Fourteenth 
Amendment's ``due process'' clause, also described in that case 
as including a ``right to privacy,'' has been held to forbid 
virtually all state prohibitions on abortion during the first 
trimester of pregnancy. \50\ Although Roe v. Wade has never 
been overruled, its ``trimester'' method of regulation, and its 
holding that the right to an abortion was a ``fundamental 
freedom'' which a state could override only for a compelling 
purpose have been all but repudiated. \51\ In Planned 
Parenthood v. Casey, \52\ while the central holding of Roe was 
expressly preserved, the scope of permissible state regulation 
of abortion and the standards to be applied in evaluating the 
constitutionality of the regulation were significantly changed. 
Instead of declaring that the right to seek an abortion was a 
``fundamental right'' calling for a ``compelling state 
interest'' to regulate, the new holding was that state 
regulation of abortion was permissible so long as such 
regulation did not place an ``undue burden'' on a woman's 
exercise of her constitutional rights with regard to abortion. 
\53\
---------------------------------------------------------------------------
    \49\ 410 U.S. 113 (1973).
    \50\ Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia, J., 
Dissenting).
    \51\ Hearing on H.R. 3682, the Child Custody Protection Act, before 
the Subcommittee on the Constitution of the House Committee on the 
Judiciary, 105th Cong., 2d Sess. (May 21, 1998) (statement of Professor 
Stephen B. Presser, Raoul Berger Professor of Legal History, 
Northwestern University School of Law) [hereinafter Presser Testimony].
    \52\ 505 U.S. 833 (1992).
    \53\ For the articulation of the ``undue burden'' standard in 
Casey, see id. at 874-880. While the ``undue burden'' standard as 
expressed in Casey appeared only to be the views of the three-person 
plurality, Justice Scalia predicted that ``undue burden'' would 
henceforward be the relevant standard, Id., at 984-995 (Scalia, J. 
Dissenting), and it now appears that the lower federal courts 
understand that the ``undue burden'' standard is the correct one to be 
applied in abortion cases. See, e.g., Manning v. Hunt, 119 F.3d 254, 
260 (4th Cir. 1997) (``The trend does appear to be a move away from the 
strict scrutiny standard toward the so-called ``undue burden'' standard 
of review'').
---------------------------------------------------------------------------
    H.R. 3682 does not raise any questions concerning the 
permissible regulation of abortion that are independent of the 
state laws that it is designed to effectuate. To the extent 
that a state rule is inconsistent with the Court's doctrine, 
that rule is ineffective and H.R. 3682 would not make it 
effective. Therefore, it is unnecessary to ask whether the 
``life exception'' in Subsection (b) of H.R. 3682 is an 
adequate exception to a rule regulating abortion or whether the 
inability to circumvent a state law is an ``undue burden.'' 
Because constitutional limits on the States'' regulatory 
authority are in effect incorporated into Subsection (a) of the 
Act, Subsection (b) is in addition to any exceptions required 
by the Court's doctrine.

Constitutionality of parental involvement laws

    Following the Court's decision in Roe v. Wade, \54\ many 
states enacted parental consent or notification statutes 
requiring minors to notify or seek the consent of their parents 
before undergoing an abortion. A parental consent law is 
generally a law that requires one or both parents to give 
actual consent to the minor's decision to have an abortion. A 
parental notification law generally requires the physician, or 
in some statutes another health care provider, to notify one or 
both of the parents of the minor female at some time prior to 
the abortion.
---------------------------------------------------------------------------
    \54\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
    The Court first considered parental involvement in a minor 
daughter's abortion in Planned Parenthood of Central Missouri 
v. Danforth. \55\ The Missouri statute gave a minor girl's 
parent an absolute veto over her decision to have an abortion. 
The majority, led by Justice Blackmun, found that the veto 
power was unconstitutional. \56\ The majority, however, also 
noted in this case that the state had greater authority to 
regulate abortion procedures for minor girls than for adult 
females. \57\
---------------------------------------------------------------------------
    \55\ 428 U.S. 52 (1976).
    \56\ Id.
    \57\ Id. at 74-75.
---------------------------------------------------------------------------
    In Bellotti v. Baird, the Court remanded a parental consent 
statute that was unclear as to whether the parents had 
authority to veto the abortion and as to the availability of a 
judicial bypass procedure. \58\ The statute returned to the 
Supreme Court in Bellotti v. Baird (Bellotti II). \59\ The 
statute in Bellotti II required a minor to receive the consent 
of her parents or a judicial bypass proceeding that did not 
take into account whether the minor was sufficiently mature to 
make an informed decision regarding the abortion. The Supreme 
Court invalidated the statute without a majority opinion.
---------------------------------------------------------------------------
    \58\ 428 U.S. 132 (1976).
    \59\ 443 U.S. 622 (1979).
---------------------------------------------------------------------------
    Justice Powell's plurality opinion held that a state could 
limit the ability of a minor girl to obtain an abortion by 
requiring notification or consent of a parent if, but only if, 
the state established a procedure where the minor girl could 
bypass the consent or notification requirement. \60\ This has 
become the de facto constitutional standard for parental 
consent and notification laws. In upholding parental 
involvement laws, the plurality found three reasons why the 
constitutional rights of minors were not equal to the 
constitutional rights of adults: ``The peculiar vulnerability 
of children; their inability to make decisions in an informed, 
mature manner; and the importance of the parental role in child 
rearing.'' \61\ Thus, the plurality tried to design guidelines 
for a judicial bypass proceeding that allowed states to address 
these interests.
---------------------------------------------------------------------------
    \60\ Id. at 651.
    \61\ Id. at 634.
---------------------------------------------------------------------------
    In H.L. v. Matheson, \62\ a minor girl challenged the 
constitutional validity of a state statute that required a 
physician to give notice to the parents of a minor girl 
whenever possible before performing an abortion on her. By a 
vote of six to three, the statute was found to be 
constitutional. Chief Justice Burger's majority opinion found 
that a state could require notification to the parents of a 
minor girl because the notification ``furthers a 
constitutionally permissible end by encouraging an unmarried 
pregnant minor to seek the help and advice of her parents in 
making the very important decision whether or not to bear a 
child.'' \63\
---------------------------------------------------------------------------
    \62\ 450 U.S. 398 (1981).
    \63\ Id. at 409.
---------------------------------------------------------------------------
    In Planned Parenthood Association of Kansas City, Missouri, 
Inc. v. Ashcroft, \64\ the Court found a state law to be 
constitutional which required a minor to receive the consent of 
one of her parents for an abortion or, in the alternative, to 
obtain the consent of a juvenile court judge. While there was 
no majority opinion, this case marked the first time the Court 
directly upheld a parental consent requirement.
---------------------------------------------------------------------------
    \64\ 462 U.S. 476 (1983).
---------------------------------------------------------------------------
    In Ohio v. Akron Center for Reproductive Health, \65\ the 
Supreme Court upheld a statute that required a physician to 
give notice to one of the minor's parents or, under some 
circumstances, another relative, before performing an abortion 
on the minor. The statute permitted the physician and the minor 
to avoid the requirement by a judicial bypass. Justice Kennedy, 
writing for the majority, held that the bypass proceeding did 
not unconstitutionally impair a minor's rights by the creation 
of unnecessary delay. \66\ The Court established in this case 
that it will not invalidate state procedures so long as they 
seem to be reasonably designed to provide the minor with an 
expedited process.
---------------------------------------------------------------------------
    \65\ 497 U.S. 502 (1990).
    \66\ Id. at 514-515.
---------------------------------------------------------------------------
    In Hodgson v. Minnesota, \67\ the Court invalidated a state 
statute that required notification of both parents prior to a 
minor girl's abortion without the option of a judicial bypass. 
The Court, however, upheld statutory requirements that both 
parents be notified of the abortion and a 48 hour waiting 
period between notification and the performance of the 
abortion, if such requirements were accompanied by a judicial 
bypass procedure that met constitutional standards.
---------------------------------------------------------------------------
    \67\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
    This line of cases makes clear that a state may require the 
consent of, or notification to, one or both of a minor's 
parents if the state provides for a constitutionally sound 
judicial bypass procedure. The Child Custody Protection Act is 
designed to preserve the application of suchstate laws, 
supplemented by a penalty section to provide a uniform penalty for 
those individuals circumventing laws by crossing state lines. Because 
the Act derives its substantive content entirely from state law, the 
Act will only be enforceable when a prosecutor can show that a 
constitutionally enforceable state parental consent or notification law 
exists. Thus, the Act itself will never implicate any constitutional 
issues associated with parental notification or consent mandates.

Judicial bypass procedures

    Some critics of H.R. 3682 charge that it will remove the 
only viable option to minors who feel they cannot tell their 
parents, but this ignores the available judicial bypass 
procedures which all valid parental involvement statutes 
contain. Alternatively, opponents of H.R. 3682 acknowledge the 
judicial bypass alternative but dismiss it as too complicated 
and intrusive to be an effective option for most young girls. 
Yet, in actuality, the proceedings are simple.\68\ According to 
Professor Collett:
---------------------------------------------------------------------------
    \68\ See Orr v. Knowles, 337 N.W.2d 699 at 706 (Neb. 1983). 
Notwithstanding empirical evidence to the contrary, abortion rights 
activists also characterize the courts as ``vehemently anti-choice,'' 
refusing minors' request to bypass parental involvement in an arbitrary 
and capricious manner. ``Some young women who manage to arrange a 
hearing face judges who are vehemently anti-choice and who routinely 
deny petitions, despite rulings by the U.S. Supreme Court that a minor 
must be granted a bypass if she is mature or if an abortion is in her 
best interest. As a result, minors in states with parental involvement 
laws frequently go to a neighboring state to obtain an abortion instead 
of trying to obtain a judicial bypass.'' NARAL Publications--
``Factsheet: S. 1645 is a Threat to Young Women's Health'' (1998). Yet 
a survey of Massachusetts cases filed between 1981 and 1983 found that 
every minor that sought judicial authorization to bypass parental 
consent received it. Robert H. Mnookin, Bellotti v. Baird, A Hard Case 
in In the Interest of Children: Advocacy, Law Reform, and Public Policy 
149 at 239 (Robert H. Mnookin ed., 1985). A subsequent study found that 
orders were refused to only 1 of 477 girls seeking judicial 
authorization from Massachusetts courts between December 1981 and June 
1985. Susanne Yates & Anita J. Pliner, ``Judging Maturity in the 
Courts: the Massachusetts Consent Statute,'' 78 Am. J. Pub. Health 646, 
647 (1988). The average hearing lasted only 12.12 minutes, and ``more 
than 92 percent of the hearings [were] less than or equal to 20 
minutes.'' Id. At 648. Based upon a review of bypass petitions filed in 
Minnesota from August 1, 1981, to March 1, 1986, a federal trial court 
determined that of the 3,573 bypass petitions filed, six were 
withdrawn, nine were denied, and 3,558 were granted. See Hodgson v. 
State of Minnesota, 648 F. Supp. 756 at 765 (D. Minn. 1986). Similar 
ease in obtaining judicial approval as an alternative to parental 
involvement is suggested by a recent report on the newly enacted 
Virginia statute requiring parental notification. Out of 18 requests 
for judicial bypass, ``all but one of the requests were granted 
eventually.'' In Virginia, since the law took effect, 18 teenagers have 
gone to a judge, who determines whether the girl is mature enough to 
make her own decision about abortion. All but one of the requests were 
granted eventually.'' Ellen Nakashima, ``Fewer Teens Receiving Abortion 
in Virginia: Notification Law to Get Court Test,'' Washington Post 
(March 3, 1998).

        In those few cases where the girl's parents are unable 
        or unwilling to guide and support her during her time 
        of decision, judicial bypass proceedings provide a 
        quick, effective way to insure that those who would 
        cast themselves as guardians of the girl's reproductive 
        freedom are not in reality perpetrators of yet another 
        type of violence against their young victims.\42\
---------------------------------------------------------------------------
    \42\ Collett Testimony.

    H.R. 3682 does not alter the judicial bypass proceeding 
available to minor girls in their respective state courts. A 
judicial bypass provides a mechanism for minor girls to get 
permission from an adjudicatory tribunal \43\ to receive an 
abortion without parental involvement. The standard for 
judicial bypass proceedings follows the general test set forth 
in Bellotti v. Baird (Bellotti II).\44\ A valid bypass 
procedure must:
---------------------------------------------------------------------------
    \43\ The tribunal can consist of a judge of a general jurisdiction 
trial court, a juvenile court judge, or an administrative panel 
delegated authority by state law to make decisions concerning abortions 
for minor girls. See Constitutional Law, Hornbook Series, 5th Edition, 
(John R. Nowak and Ronald D. Rotunda, eds.)., 1995.
    \44\ 443 U.S. 622 (1979) (Bellotti II).
---------------------------------------------------------------------------
          1. Allow the minor to show that she possesses 
        maturity and information to make the decision, in 
        consultation with her physician, without regard to her 
        parents' wishes;
          2. Allow the minor to show that, even if she cannot 
        make the decision by herself, that the ``desired 
        abortion would be in her best interests'';
          3. Be confidential (such that her identity is not 
        divulged to her parents or others); and
          4. Be conducted ``with expedition to allow the minor 
        an effective opportunity to obtain the abortion.''
The maturity and best interest tests have been upheld as 
constitutional in several Supreme Court cases.\45\ Evidence 
concerning maturity may include work and personal experience, 
appreciation of the gravity of the procedure, and displays of 
personal judgment.\46\ Generally, if the minor is found mature 
enough to make the abortion decision, the minor may obtain the 
abortion.
---------------------------------------------------------------------------
    \45\ See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 
(1990) (mature and best interests); Planned Parenthood v. Casey, 112 
S.Ct. 2791 (1992) (sufficiently mature and in the minor's best 
interest); and Hodgson v. Minnesota, 497 U.S. 417 (1990) (mature and 
capable of giving informed consent or that abortion without notice to 
both parents would be in her best interest).
    \46\ See Hodgson, 497 U.S. 417 (1990).
---------------------------------------------------------------------------
    If a judge finds that the minor is not sufficiently mature, 
the judge may also consider whether an abortion would be in the 
minor's best interest. This consideration may include medical 
risks which depend on the time, place or type of procedure to 
be performed.\47\ Concerns about the minor's general health 
risks are also encompassed in the ``best interests'' prong. For 
example, one court found that it was in the best interests of a 
minor it deemed immature to obtain an abortion due to a heart 
condition.\48\ Because she was unable to discontinue heart 
medication that caused fetal birth defects without risk of 
grave physical harm to herself, the judge concluded it was in 
her best interests to obtain an abortion. Judges may also 
consider evidence or history of physical, sexual, or emotional 
abuse by parents or guardians under the ``best interest'' 
umbrella.\49\
---------------------------------------------------------------------------
    \47\ See generally 1 Am. Jur. 2d ABORTION AND BIRTH CONTROL 66.
    \48\ See In Re Moe, 26 Mass App 915 (1988).
    \49\ 1 Am. Jur. 2d ABORTION AND BIRTH CONTROL 66. Also, the court 
may consider alternatives to abortion such as marriage, adoption, and 
whether assuming the responsibilities of motherhood would be best in 
such situations.
---------------------------------------------------------------------------

Constitutionality of lack of proof of specific intent as to violation 
        of State law

    Ignorance or mistake of fact is not a defense in crimes 
where it is necessary for the protection of the public to 
require citizens to determine the facts of the situation at 
their peril, such as in the case of statutory rape.\50\ This 
proposition can be defended on the ground that there is a 
measure of wrong in the act, even as the defendant understood 
it.\51\ H.R. 3682 operates on a similar principle. A stranger 
that secretly takes a minor girl across state lines for a 
dangerous medical procedure without ascertaining her parents'' 
consent has certainly acted, in some measure, wrongly. H.R. 
3682, by requiring that the transporter ``in fact'' abridge a 
parental right, puts the transporter under a strict duty to 
ascertain parental permission before action is taken in order 
to guard against a possible violation. Importantly, the Act 
provides an affirmative defense where the defendant reasonably 
believed, based on information the defendant obtained directly 
from a parent of the minor or other compelling facts, that the 
state parental involvement law where the minor girl resides had 
been complied with. Some critics of H.R. 3682 question the 
constitutionality of providing an affirmative defense in a 
criminal law. Yet, examples of criminal laws with affirmative 
defenses are numerous.\52\
---------------------------------------------------------------------------
    \50\ See generally Washington v. Abbott, 726 P.2d 988 (1986) 
(holding that the element of ``knowledge'' need not be an implied 
element of statutory rape).
    \51\ See generally State v. Audette, 8 Vt. 400 (1908).
    \52\ See generally 33 U.S.C. 1319 (Enforcement standards for water 
pollution prevention); 18 U.S.C. 3146 (Penalty for failure to appear); 
18 U.S.C. 2252A (Certain activities relating to material constituting 
or containing child pornography); 18 U.S.C. 1512 (Tampering with a 
witness); 18 U.S.C. 373 (Solicitation to commit a crime of violence); 
18 U.S.C. 1204 (International parental kidnaping); 18 U.S.C. 845 
(Exceptions and relief from disabilities concerning explosive 
materials); 18 U.S.C. 177 (Injunctions for biological weapons); 18 
U.S.C. 17 (Insanity defense); 10 U.S.C. 850a (Defense of lack of mental 
responsibility); 10 U.S.C. 920 (Rape and carnal knowledge).
---------------------------------------------------------------------------

Federalism and the Child Custody Protection Act

    The United States Constitution created a federal government 
with limited and enumerated powers, and the employed means for 
ensuring that the federal government would not overwhelm the 
state and local governments. According to Professor Presser:

          The system of checks and balances, whereby the three 
        branches of the federal government restrained each 
        other, was an important aspect of this plan, but 
        equally important was the basic notion that the federal 
        government was not to intrude on the domestic matters 
        which had traditionally been the prerogative of state 
        and local governments. Because of fears that the 
        federal government might still overwhelm that of the 
        states, some states qualified their ratification of the 
        new Constitution with the insistence that it needed to 
        be amended by a Bill of Rights, which would further 
        insure that the federal government would be limited in 
        scope.\53\
---------------------------------------------------------------------------
    \53\ Presser Testimony (internal citations omitted).

As stated in Section I of this report, this Act does not 
attempt to regulate or impose policy on the individual states. 
Rather, it is predicated on the validity of state law and 
derives its substantive application from state law. H.R. 3682 
merely seeks to implement state policies that are being 
transgressed or evaded.
    H.R. 3682 is drafted in order to further the goal of 
preserving the discretion of each state to address an important 
aspect of the controversial abortion issue. According to 
Professor Presser: ``By imposing penalties on anyone who seeks 
to deny a minor or her family the protections of a state's 
parental consent/judicial bypass provisions with regard to 
abortion, as H.R. 3682 would do, the Congress would simply be 
reinforcing our Federalism scheme, and ensuring that each 
state's policy aims regarding this controversial issue are not 
frustrated.'' \54\
---------------------------------------------------------------------------
    \54\ Presser Testimony.
---------------------------------------------------------------------------
    H.R. 3682 does not supersede, override, or alter existing 
state laws regarding minors' abortions. Rather, H.R. 3682 uses 
Congress' authority to regulate interstate activity to protect 
state laws from evasion. Professor Presser testified:

          As Justice Scalia and others have recognized, the 
        political process of each state exists to resolve these 
        difficult questions through the exercise of popular 
        sovereignty, the bedrock of our entire Constitutional 
        system. Not for nothing are the first three words of 
        the Constitution ``We the people,'' and unless the 
        Constitution itself expressly denies the people any 
        discretion over a particular area it is their right, 
        indeed, it is their duty to govern themselves regarding 
        that issue through the legislative process. This is the 
        most important right in the Constitution, the right of 
        self government, for which our system of dual 
        sovereignty exists. This Bill is an important step in 
        reinforcing Federalism and in reinforcing self-
        government. It deserves to be enacted.\55\
---------------------------------------------------------------------------
    \55\ Presser Testimony.

In short, H.R. 3682 does not encroach on state powers, but 
rather reinforces state powers.
    H.R. 3682 is not unlike the Mann Act \56\ which prohibits 
the knowing transportation of women in interstate commerce for 
purposes of prostitution. The Mann Act does not exempt 
transportation into states in which prostitution might be 
legal. In U.S. v. Pelton,\57\ the Eighth Circuit upheld the 
Mann Act against a challenge of unconstitutionality in its 
application to transporting a person into Nevada where 
prostitution was legal. The Mann Act is an example of valid and 
constitutional federal law that, in certain applications, 
criminalizes the transportation of persons into a state for a 
purpose which may be legal under the laws of that state.
---------------------------------------------------------------------------
    \56\ 18 U.S.C. 2421.
    \57\ 578 F.2d 701 (1978) (cert. denied).
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 3682, the ``Child Custody Protection Act'' on 
May 21, 1998. Testimony was received from the following 
witnesses: Representative Ileana Ros-Lehtinen; Representative 
James L. Oberstar; Representative Nita Lowey; Representative 
Lincoln Diaz-Balart; Representative Sheila Jackson-Lee; 
Representative Christopher H. Smith; Ms. Joyce Farley of 
Dushore, Pennsylvania; Ms. Eileen Roberts, Mothers Against 
Minors' Abortion; Reverend Katherine Hancock Ragsdale, 
Episcopalian Priest; Professor Teresa Collett, Professor of 
Law, South Texas College of Law; Professor Stephen Presser, 
Raoul Berger Professor of Legal History, Northwestern 
University School of Law; and Mr. Robert Graci, Office of the 
Attorney General of Pennsylvania.

                        Committee Consideration

    On June 11, 1998, the Subcommittee on the Constitution met 
in open session and ordered reported the bill H.R. 3682, as 
amended, by a vote of 7 to 2, a reporting quorum being present. 
On June 17, and June 23, 1998, the Committee met in open 
session and ordered reported favorably the bill, H.R. 3682 with 
an amendment in the nature of a substitute, by a recorded vote 
of 17 to 10, a quorum being present.

                         Vote of the Committee

    1. Mr. Canady offered an amendment to clarify that neither 
the minor girl who is being taken out of state for an abortion, 
nor her parents, may be subject to prosecution or civil action 
and to add an affirmative defense where the defendant 
reasonably believed, based on information the defendant 
obtained directly from a parent of the individual or other 
compelling facts, that thestate parental involvement law where 
the minor girl resides had been complied with. The amendment was agreed 
to by a voice vote.
    2. An amendment was offered by Mr. Nadler to Mr. Canady's 
amendment to delete the word ``affirmative'' from the 
affirmative defense. The amendment was defeated by a 9-15 roll 
call vote.

                          Rollcall vote No. 1

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Gekas
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Mr. Wexler                          Mr. Goodlatte
Mr. Rothman                         Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    3. An amendment was offered by Mr. Nadler to Mr. Canady's 
amendment to delete from the affirmative defense the provision 
that the defendant's reasonable belief about compliance with 
the state law where the minor resides must be ``based on 
information the defendant obtained directly from a parent of 
the individual or other compelling facts.'' The amendment was 
defeated by a 8-15 roll call vote.

                          Rollcall vote No. 2

        AYES                          NAYS
Mr. Frank                           Mr. Hyde
Mr. Nadler                          Mr. Sensenbrenner
Mr. Scott                           Mr. Gekas
Mr. Watt                            Mr. Coble
Ms. Lofgren                         Mr. Canady
Ms. Jackson-Lee                     Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
Mr. Rothman                         Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    4. An amendment was offered by Mr. Canady to clarify that 
circumventing a state's parental involvement law is an 
abridgement of a parent's right and to ensure that either 
parental notice or consent or a judicial bypass is obtained 
before the out-of-state abortion, according to what would have 
been required by the first state's law. The amendment was 
agreed to by a voice vote.
    5. An amendment was offered by Mr. Barr to add the phrase 
``in fact'' to Mr. Canady's amendment to clarify that, under 
the new language as amended, knowledge of violation of the 
state law is not an element requiring specific proof. The 
amendment was agreed to by a voice vote.
    6. An amendment was offered by Mr. Scott to exempt the 
sibling of a minor from the penalty provision of this Act. The 
amendment was defeated by a 6-15 roll call vote.

                          Rollcall vote No. 3

        AYES                          NAYS
Mr. Frank                           Mr. Hyde
Mr. Scott                           Mr. Gekas
Mr. Watt                            Mr. Coble
Ms. Lofgren                         Mr. Smith (TX)
Ms. Jackson-Lee                     Mr. Gallegly
Mr. Rothman                         Mr. Canady
                                    Mr. Inglis
                                    Mr. Goodlatte
                                    Mr. Buyer
                                    Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Ms. Bono

    7. An amendment was offered by Ms. Jackson-Lee that would 
exempt ministers, rabbis, pastors, priests, or other religious 
leaders from the penalty provisions of the Act. The amendment 
was defeated by a 5-17 roll call vote.

                          Rollcall vote No. 4

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Scott                           Mr. Gekas
Mr. Watt                            Mr. Coble
Ms. Jackson-Lee                     Mr. Smith (TX)
Mr. Rothman                         Mr. Gallegly
                                    Mr. Canady
                                    Mr. Inglis
                                    Mr. Goodlatte
                                    Mr. Buyer
                                    Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Frank

    8. An amendment was offered by Ms. Jackson-Lee to require 
that one year after the enactment of this bill, GAO submit a 
study on the impact on the number of illegal and unsafe 
abortions and increased parental abuse, and report to Congress 
the results of that study. The amendment was defeated by a 8-14 
roll call vote.

                          Rollcall vote No. 5

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
Mr. Rothman                         Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    9. An amendment was offered by Mr. Conyers to create an 
exception to the prohibitions of this bill to the extent such 
prohibitions would increase ``hazards'' to the minor or place 
an undue burden on a minor seeking an abortion. The amendment 
was defeated by a 8-14 roll call vote.

                          Rollcall vote No. 6

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
Mr. Rothman                         Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    10. An amendment was offered by Mr. Scott to create an 
exception where a minor has participated in a judicial bypass 
proceeding in any state court. The amendment was defeated by a 
9-16 roll call vote.

                          Rollcall vote No. 7

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Gekas
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Waters                          Mr. Canady
Mr. Delahunt                        Mr. Inglis
Mr. Wexler                          Mr. Goodlatte
Mr. Rothman                         Mr. Buyer
                                    Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    11. An amendment was offered by Mr. Watt to create an 
exception where the abortion is necessary to prevent serious 
physical illness or a serious health condition. The amendment 
was defeated by a 11-16 roll call vote.

                          Rollcall vote No. 8

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Gekas
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Delahunt                        Mr. Buyer
Mr. Wexler                          Mr. Bryant
Mr. Rothman                         Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    12. An amendment was offered by Mr. Scott to remove the 
ability of parents to file a civil action for violation of 
their rights under this bill. The amendment was defeated by a 
voice vote.
    13. An amendment was offered by Mr. Scott to exempt from 
any criminal or civil liability abortion clinics and providers. 
The amendment was defeated by a voice vote.
    14. An amendment was offered by Mr. Scott to create a 
health exception. The amendment was defeated by a voice vote.
    15. An amendment was offered by Mr. Watt to require proof 
of specific intent to evade a state's parental involvement law. 
The amendment was defeated by a voice vote.
    16. Two amendments were offered en bloc by Mr. Scott to 
remove the applicability of sections 2 and 3 of title 18 
dealing with accessory after the fact and aiding and abetting 
principals under the bill. The en bloc amendment was defeated 
by a voice vote.
    17. An amendment was offered by Mr. Frank to insert a non-
severability clause. The amendment was defeated by a 5-15 roll 
call vote.

                          Rollcall vote No. 9

        AYES                          NAYS
Mr. Frank                           Mr. Hyde
Mr. Scott                           Mr. Sensenbrenner
Mr. Watt                            Mr. Gekas
Ms. Lofgren                         Mr. Coble
Ms. Jackson-Lee                     Mr. Smith (TX)
                                    Mr. Canady
                                    Mr. Inglis
                                    Mr. Buyer
                                    Mr. Bryant
                                    Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Rogan
                                    Ms. Bono

    18. An amendment was offered by Mr. Scott to require a 
finding of significant federal interest and insufficiency of 
state laws before prosecution pursuant to this bill. The 
amendment was defeated by a voice vote.
    19. An amendment was offered by Ms. Jackson-Lee to exclude 
grandparents from the prohibitions of this bill. The amendment 
was defeated by an 8-16 rollcall vote.

                         Roll call vote No. 10

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Lofgren                         Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Wexler                          Mr. Buyer
                                    Mr. Bryant
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    20. Two amendments were offered en bloc by Ms. Jackson-Lee 
to exclude aunts, uncles, and first cousins from the 
prohibitions of this bill. The en bloc amendment was defeated 
by a 9-16 rollcall vote.

                          Rollcall vote No. 11

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Lofgren                         Mr. Canady
Ms. Jackson-Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Meehan                          Mr. Buyer
Mr. Wexler                          Mr. Bryant
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Rogan
                                    Mr. Graham
                                    Ms. Bono

    21. Final Passage. Mr. Hyde moved to report the bill, H.R. 
3682, favorably as amended by the amendment in the nature of a 
substitute to the whole House. The motion was agreed to by a 
rollcall vote of 17-10.

                          Rollcall vote No. 12

        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Gekas                           Mr. Frank
Mr. Coble                           Mr. Nadler
Mr. Smith (TX)                      Mr. Scott
Mr. Gallegly                        Mr. Watt
Mr. Canady                          Ms. Lofgren
Mr. Inglis                          Ms. Jackson-Lee
Mr. Goodlatte                       Ms. Waters
Mr. Buyer                           Mr. Meehan
Mr. Bryant                          Mr. Wexler
Mr. Chabot
Mr. Jenkins
Mr. Hutchinson
Mr. Pease
Mr. Rogan
Mr. Graham
Ms. Bono

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does notprovide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 3682, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 25, 1998.
Hon. Henry J. Hyde,
Chair, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3682, the Child 
Custody Protection Act.
    If you wish further details on this estimate we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 3682--Child Custody Protection Act

    CBO estimates that implementing H.R. 3682 would not result 
in any significant cost to the federal government. Because 
enactment of H.R. 3682 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill. 
However, CBO estimates that any impact on direct spending and 
receipts would not be significant. H.R. 3682 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no cost on state, 
local, or tribal governments.
    H.R. 3682 would make it a federal crime to transport a 
minor across state lines, under certain circumstances, to 
obtain an abortion. Violators would be subject to imprisonment 
and fines. As a result, the federal government would be able to 
pursue cases that it otherwise would not be able to prosecute. 
CBO expects that the government probably would not pursue many 
such cases, however, so we estimate that any increase in 
federal cost for law enforcement, court proceedings, or prison 
operations would not be significant. Any such additional costs 
would be subject to the availability of appropriate funds.
    Because those prosecuted and convicted under H.R. 3682 
could be subject to criminal fines, the federal government 
might collect additional fines if the bill is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and spent in the following year. CBO expects 
that any additional collections from enacting H.R. 3682 would 
be negligible, however, because of the small number of cases 
likely to be involved. Because any increase in direct spending 
would equal the fines collected with a one-year lag, the 
additional direct spending also would be negligible.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article 1, section 8, clause 3 of the 
Constitution.

                      Section-by-Section Analysis

    H.R. 3682 amends title 18 of the United States Code by 
adding sec. 2401 to criminalize the transportation of minors to 
avoid certain laws relating to abortion.

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 the following:

 Chapter 117A--Transportation of minors to avoid certain laws relating 
                              to abortion

    Subsection (a) of this section makes 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, a violation of this statute and a chargeable 
offense.
    Subsection (a), paragraph (1), imposes a maximum of one 
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 of residence.
    Subsection (b), paragraph (1) specifies that subsection (a) 
does not apply if the abortion is necessary to save the life of 
the minor.
    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 bill 
where the defendant reasonably believed, based on information 
obtained directly from the girl's parent or other compelling 
facts, that the requirements of the girl's state of residence 
regarding parental involvement or judicial authorization in 
abortions had been satisfied.
    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.
    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.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

                             PART I--CRIMES

Chap.                                                               Sec.
1. General provisions.........................................         1
     * * * * * * *
117A. Transportation of minors to avoid certain laws relating 
    to abortion...............................................      2401
     * * * * * * *

 CHAPTER 117A--TRANSPORTATION OF MINORS TO AVOID CERTAIN LAWS RELATING 
                              TO ABORTION

Sec.
2401. Transportation of minors to avoid certain laws relating to 
          abortion.

Sec. 2401. Transportation of minors to avoid 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, of 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.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We strongly dissent from H.R. 3682. As the bill is written, 
it is opposed by the Administration and invites a veto by the 
President.\1\ The legislation is opposed by a wide variety of 
groups who are concerned about reducing teen age pregnancy and 
protecting a women's right to choose, such as Planned 
Parenthood Federation of America, the National Abortion and 
Reproductive Rights Action League, and the Center for 
Reproductive Law and Policy.
---------------------------------------------------------------------------
    \1\ See Letter from Erskine B. Bowles, Chief of Staff to the 
President, to Representative Conyers, Ranking Member, Committee on the 
Judiciary (June 17, 1998); Letter from L. Anthony Sukin, Acting 
Assistant Attorney General, to Rep. Henry J. Hyde, Chairman, Committee 
on the Judiciary (June 24, 1998) (hereinafter Justice Department 
Letter).
---------------------------------------------------------------------------
    Instead of increasing parental involvement in a minor's 
decision to terminate a pregnancy, H.R. 3682 will dramatically 
increase the dangers young women will face in decisions to 
obtain an abortion. Since the bill contains no prohibition 
whatsoever against women traveling across state lines to avoid 
a consent requirement, it will merely lead to more women 
traveling alone to obtain abortions or seeking illegal ``back 
alley'' abortions locally, hardly a desirable policy result. 
And to the extent young women continue to seek the involvement 
of close family members when they cannot confide in their 
parents--for example where a parent has committed incest or 
there is a history of child abuse--the bill will result in the 
criminal prosecution of a young woman's grandparents, siblings, 
and other close relatives.
    The legislation is also dangerously over broad. Because of 
the criminal law's broad definition of conspiracy and the 
bill's strict liability, it would apply to all sorts of 
unsuspecting persons having any peripheral involvement in a 
minor's abortion--even if they had no knowledge of the bill's 
legal prohibitions or the fact that a minor was crossing state 
lines to seek an abortion. As a result, the law could apply to 
clinic employees, bus drivers, and emergency medical personnel. 
Further because the bill imposes significant new burdens on a 
women's right to choose.
    Legislative proponents may claim that H.R. 3682 merely 
empowers the states to more vigorously enforce their laws. 
However, we have seen no effort by the Majority to empower 
states to enforce their gun, gambling, or tax, laws against 
residents who cross state lines to take advantage of the laws 
of other states. Instead we face another shortsighted effort to 
politicize a tragic family dilemma, which does nothing to 
respond to the underlying problem of teen pregnancies or 
dysfunctional families. For these and the other reasons set 
forth herein, we dissent from H.R. 3682.

    i. h.r. 3682 will increase the dangers attendant on young women

    Under the legislation teenagers who are unable to satisfy a 
state parental involvement law--either because they cannot tell 
one parent (or in some states, both parents) about their 
pregnancy or because they have no fair chance of obtaining a 
judicial bypass--will be forced to travel alone across state 
lines to obtain an abortion. Although abortion is very safe, it 
is still far preferable to permit a trusted friend or family 
member to drive a woman home from this surgical procedure.\2\
---------------------------------------------------------------------------
    \2\ The likelihood and length of the travel should not be 
understated. Many teenagers seeking an abortion must travel out of 
state to obtain the procedure, either because the closest facility is 
located in a neighboring state or because there is no in-state provider 
available. In fact, currently 84% of counties lack an abortion 
provider. Others seek to ensure confidentiality by going out of state. 
See Stanley K Henshaw and Jennifer Van Vort, ``Abortion Services in the 
United States, 1991 and 1992,'' Family Planning Perspectives, Vol. 26, 
No. 3, (May/June 1994): 103.
---------------------------------------------------------------------------
    As much as we would prefer the active and supporting 
involvement of parents in their children's major decisions, it 
is not always realistic to expect children to seek parental 
involvement in the sensitive area of abortion. And when a child 
is unwilling or unable to seek parental consent, the results 
can be tragic. The statement of Bill and Mary Bell submitted to 
the Constitution Subcommittee is telling in this regard.\3\ The 
Bells were the parents of a daughter who died following an 
illegal abortion that she obtained because she did not want her 
parents to know about her pregnancy. A Planned Parenthood 
counselor in Indiana informed Becky that she would have to 
either notify her parents or petition a judge in order to get 
an abortion. Becky responded that she did not want to tell her 
parents because she did not want to hurt them. She also replied 
that if she could not tell her parents with whom she was very 
close, she would not feel comfortable asking a judge that she 
did not even know. Instead of traveling 110 miles to Kentucky, 
Becky opted to undergo an illegal abortion close to her home. 
Unfortunately, Becky developed serious complications from her 
illegal abortion that resulted in her death.
---------------------------------------------------------------------------
    \3\ Hearing on H.R. 3682 ``The Child Custody Protection Act'' 
before the Subcommittee on the Constitution of the House Committee on 
the Judiciary (May 21, 1998) (Statement of Bill and Mary Bell, 
submitted for the record). See also Position Paper from The National 
Abortion Federation, ``The True Victims of S. 1645/H.R. 3682 The Teen 
Endangerment Act'' (June 1998) (describing the case of Keishawn, an 
eleven year old from Maryland, who was impregnated by her step-father, 
and sought an abortion with the assistance of her aunt, Vicky Simpson, 
who was awaiting an order granting her custody of Keishawn. Upon 
learning of the pregnancy, Keishawn's doctors in Maryland recommended 
that Keishawn have anesthesia during the abortion procedure, but, none 
of hospitals in Maryland would allow the abortion to be provided at 
their facility. As a result, Keishawn's aunt sought the attention of a 
specialist practicing in a neighboring state, who agreed to provide the 
abortion. Under H.R. 3682, Vicki could have been federally prosecuted 
for helping her young niece cope with this pregnancy resulting from 
incest).
---------------------------------------------------------------------------
    Moreover, many young women justifiably fear that they would 
be physically or emotionally abused if forced to disclose their 
pregnancy to their parents. Nearly one-third of minors who 
choose not to consult with their parents have experienced 
violence in their family or feared violence or being forced to 
leave home.\4\ Furthermore, studies show that family violence 
is at its worst during a family member's pregnancy.\5\ So we 
shouldn't be surprised if enactment of this legislation only 
exacerbates the dangerous cycle of violence in dysfunctional 
families.\6\ This is the lesson of Spring Adams, an Idaho 
teenager who was shot to death by her father after he learned 
she was planning to terminate a pregnancy caused by his acts of 
incest.\7\
---------------------------------------------------------------------------
    \4\ Stanley K. Henshaw and Kathryn Kost, ``Parental Involvement in 
Minors'' Abortion Decisions,'' Vol. 24, No. 5, Family Planning 
Perspectives (Sept./Oct. 1992): 196.
    \5\ Ching-Tung Wang and Deborah Daro, Current Trends in Child Abuse 
Reporting and Fatalities: The Results of the 1996 Annual Fifty State 
Survey (Chicago: National Committee for Prevention of Child Abuse, 
1997); H. Amaro, et al., ``Violence During Pregnancy and Substance 
Abuse,'' American Journal of Public Health, vol. 80 (1990): 575-579.
    \6\ In 1996, there were a full 3.1 million cases of child abuse 
reported. Id.
    \7\ Margie Boule, ``An American Tragedy,'' Sunday Oregonian, Aug. 
27, 1989.
---------------------------------------------------------------------------
    We are well aware that the proponents' response to the many 
safety risks posed by H.R. 3682 is to point to the state 
judicial bypass procedure. While bypass may have some 
theoretical value, in practice it is often difficult if not 
impossible for troubled young women to obtain. In many cases, 
teenagers live in regions where the local judges consistently 
refuse to grant bypasses, regardless of the facts involved. For 
example, a 1983 study found that a number of judges in 
Massachusetts refuse to handle abortion petitions or focus 
inappropriately on the morality of abortion and are insulting 
and rude to minors and their attorneys.\8\ The Supreme Court 
found that in Minnesota, many judges refuse even to hear bypass 
proceedings.\9\ Other teenagers may live in small communities 
where the judge may be a friend of the young woman's parents, a 
family member, or even the parent of a friend. Still others may 
live in regions where the relevant courts are not open in the 
evenings or on weekends, when minors could seek a bypass 
without missing school or arousing suspicion.\10\
---------------------------------------------------------------------------
    \8\ Patricia Donovan, ``Judging Teenagers: How Minors Fare When 
They Seek Court-Authorized Abortions,'' vol. 15, no. 6, Family Planning 
Perspectives (Nov./Dec. 1983): 259.
    \9\ Hodgson v. Minnesota, 497 U.S. 417, 475 (1990). In Florida, 
after denying a bypass petition to a teenage Florida girl who was in 
high school, participated in extracurricular activities, worked 20 
hours a week, and baby-sat regularly for her mother, the judge 
suggested that he, himself, as a representative of the court, had 
standing to represent the state's interest when the minor appealed the 
denial. In re T.W., 551 So. 2d 1186, 1190 (Fla. 1989).
    \10\ The courts in Massachusetts, Minnesota and Rhode Island are 
not open in the evenings or on weekends. See Donovan, supra note 8, at 
259.
---------------------------------------------------------------------------
    Finally, many minors fear that the judicial bypass 
procedure lacks the necessary confidentiality. The American 
Medical Association has noted that ``because the need for 
privacy may be compelling, minors may be driven to desperate 
measures to maintain the confidentiality of their pregnancies * 
* *. The desire to maintain secrecy has been one of the leading 
reasons for illegal abortion deaths since * * * 1973.\11\ Many 
young women, faced with the prospect of embarrassment and 
social stigma, would rather resort to drastic measures rather 
than undergo the humiliation of revealing intimate details of 
their lives to a series of strangers in a formal legal process.
---------------------------------------------------------------------------
    \11\ American Medical Association, Council on Ethical and Judicial 
Affairs, AMA, ``Mandatory Parental Consent to Abortion,'' Journal of 
the American Medical Association (JAMA) vol. 269, no. 1 (Jan. 6, 1993): 
83.
---------------------------------------------------------------------------

                      ii. h.r. 3682 is anti-family

    H.R. 3682 is hostile to the well being of families. Despite 
proponents' claims that H.R. 3682 would enforce a parent's 
right to counsel their daughters, the reality is that it is 
impossible to legislate complex family relationships. The 
studies reveal that more than half of all young women who do 
not involve a parent in a decision to terminate a pregnancy 
choose to involve another trusted adult, very often a 
relative.\12\ Although the bill was amended to exempt parents 
from criminal and civil liability, no amendments were accepted 
that would have excepted other important family members--such 
as a grandparent, step-parent, an aunt, or a sibling.\13\ The 
net result will be the exact opposite of the drafter's intent--
weakening family communications and creating suspicion and 
mistrust among close family members.
---------------------------------------------------------------------------
    \12\ Henshaw and Kost, supra note 4 at 207.
    \13\ Rep. Scott and Rep. Jackson-Lee offered amendments to exempt 
these family members at full committee markup and each failed by roll-
call vote.
---------------------------------------------------------------------------
    Even non-parent adults who are in fact raising a child will 
be swept in by the bill's prohibitions. This is because the 
legislation includes an excessively narrow definition of 
``parent,'' referring only to a parent or guardian; a legal 
custodian; or a person standing in loco parentis who has care 
and control of the minor, and with whom the minor regularly 
resides and who is designated by a state's parental involvement 
law as a person to whom notification, or from whom consent, is 
required.\14\ There is no provision to afford protection to 
grandparents, aunts or uncles who are in fact raising a minor 
but have not been formally designated as the child's guardian. 
This is the case even where the child's parents cannot be 
located.\15\
---------------------------------------------------------------------------
    \14\ H.R. 3682, proposed Sec. 2401(e)(2).
    \15\ Of the 39 states with parental involvement laws, only Illinois 
and South Carolina openly allow consent or notice to a grandparent. 
Ohio allows notice to a grandparent, step-parent or adult sibling under 
certain circumstances. National Abortion Rights Action League, ``Who 
Decides? A State-By-State Review of Abortion and Reproductive Rights,'' 
pp. 154-55.
---------------------------------------------------------------------------
    The bill also illogically allows for civil actions between 
family members by authorizing lawsuits to be brought by parents 
suffering ``legal harm'' against any person assisting a minor 
in obtaining an abortion across state lines. The legislation is 
so broad that even a parent who committed rape or incest 
towards their own daughter is permitted to bring a lawsuit 
seeking compensation under H.R. 3682.

               iii. h.r. 3682 is dangerously overly broad

    Supporters of this bill claim to be targeting predatory 
individuals that force and coerce a minor into obtaining an 
abortion. However, the net cast by this bill is far broader and 
far more problematic.
    The legislation includes a criminal penalty against all 
persons who ``knowingly transport 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 
abridges the right of a parent under a law, requiring parental 
involvement in a minor's abortion decision, of the State where 
the individual resides.''\16\ There is no requirement that the 
individual be aware of this legal prohibition or have knowledge 
of the young woman's intent to evade her resident state's 
parental involvement laws.\17\ Anyone simply transporting a 
minor could be jailed for up to one year or fined or both. Any 
bus driver, taxi driver, family member or friend transporting a 
young woman to obtain an abortion, but unaware that the young 
woman has not engaged a formal parental involvement process 
could conceivably be sent to jail under this prohibition. The 
same applies to emergency medical personnel who may be aware 
they are taking a minor across state lines to obtain an 
abortion, but would have no choice if a medical emergency were 
occurring.
---------------------------------------------------------------------------
    \16\ H.R. 3682, proposed Sec. 2401(a).
    \17\ An amendment offered at full committee markup of H.R. 3682 by 
Rep. Melvin Watt (D- NC) to add an intent requirement was defeated on a 
party line vote.
---------------------------------------------------------------------------
    These concerns were highlighted in the Justice Department's 
views on H.R. 3682 which observed:

          Congress has [in the past] opted for willfulness 
        where there is a high likelihood of defendants 
        reasonably believing that they are acting lawfully. * * 
        * Many of the people a minor will likely turn to for 
        help--people such as her grandmother, her aunt, her 
        sibling (who also may be a minor), her religious 
        counselor, her teenaged best friend--will often be 
        people with little or no experience with abortion or 
        knowledge of the relevant law, let alone its finer 
        points. Seeking to aid her, they might well engage in 
        conduct they reasonably believe to be lawful--a minor 
        who is a granddaughter, a niece, a parishioner, or a 
        friend across state lines to a place where she can 
        legally have an abortion. In such circumstances, they 
        would completely unwittingly violate a federal criminal 
        law and expose themselves to criminal and civil 
        sanction.\18\
---------------------------------------------------------------------------
    \18\ Justice Department Letter, supra note 1, at 8 (citations 
omitted)

    The supporters of this bill inaccurately compare it to the 
Mann Act, which prohibits the transport of ``any individual 
under the age of 18 years in interstate or foreign commerce, or 
in any Territory or Possession of the U.S., with intent that 
such individual engage in prostitution, or in a sexual activity 
for which any person can be charged with a criminal offense * * 
*.'' \19\ The Mann Act, like most other criminal laws, requires 
that individuals have specific knowledge of the facts which 
make their actions illegal. Moreover, prostitution is illegal 
in 49 of the 50 states, whereas abortion is legal, and indeed, 
constitutionally protected. A person convicted of possessing 
stolen property, for example, must know or have reason to know 
that the property they possess is, in deed, stolen property. 
H.R. 3682 has no such intent requirement and, therefore, 
creates a strict criminal liability for anyone in violation. 
Such extreme measures in a bill that likely inflicts undue 
burdens on young women is indicative of the underlying purpose 
of the legislation: to make it much harder and much more 
dangerous for young women to exercise their constitutional 
right to obtain a safe and legal abortion.
---------------------------------------------------------------------------
    \19\ 18 U.S.C. Sec. 2421.
---------------------------------------------------------------------------
    The problems inherent in the enforcement of a strict 
liability crime are further exacerbated by existing criminal 
laws relating to accessories, accessories after the fact, and 
conspiracies.\20\ A nurse at a clinic providing directions to a 
minor or her driver could be convicted as an accessory under 
this legislation. A doctor who procures a ride home for a minor 
and the person accompanying her because of car troubles coupled 
with the minor's expressed fear of calling her parents for 
assistance could be convicted as an accessory after the fact. A 
sibling of the minor that merely agrees to transport a minor 
across state lines without any knowledge of intent to evade the 
resident state's parental consent or notification laws could be 
thrown in jail and convicted of a conspiracy to violate this 
statute.
---------------------------------------------------------------------------
    \20\ 18 U.S.C.Sec. 2 (accessories); Sec. 3 (accessories after the 
fact); and Sec. 371 (conspiracies). During full committee markup of 
H.R. 3682, Rep. Bobby Scott (D-VA) offered an amendment which would 
prohibit prosecutions based on accessory or accessory after the fact 
culpability. The amendment was defeated by voice vote.
---------------------------------------------------------------------------
    The civil liability provisions of this bill which create a 
blanket federal cause of action for a parent that suffers 
``legal harm'' as a result of their child being transported 
across state lines would further chill family and doctor/
patient relations. Agency law principles would enable an 
``aggrieved'' parent to sue medical facilities, doctors, 
nurses, taxi drivers, relatives, ministers, and anyone else 
providing assistance to a minor transported across state lines 
to obtain an abortion. This is why in a letter to Ranking 
Member Conyers, White House Chief of Staff Erskine Bowles 
stated that the civil liability provisions of H.R. 3682 ``would 
provide an unintended basis for vexatious litigation against 
individuals and organizations.'' \21\
---------------------------------------------------------------------------
    \21\ Letter from Erskine B. Bowles, supra note 1.
---------------------------------------------------------------------------
    Not only would the civil liability provision subject 
virtually everyone assisting a minor to lawsuits, it would 
subject everyone else the minor comes in contact with to the 
rules of discovery. Nothing would stop a lawyer from deposing 
other women who have visited the defendant clinic. Nothing 
would prevent parents and family members from being forced to 
give testimony concerning some of their most private 
conversations with the minor obtaining the abortion. And, 
nothing would protect friends of the minor from being dragged 
into depositions to discuss what they know about a subject that 
should be confidential.
    The legislation also raises troubling questions concerning 
the impact of civil liability provisions on Federal Rule of 
Civil Procedure 26 protective orders when the entire scheme of 
this new federal cause of action is based on material that is 
invasive. In addition, it is unclear what types of changes 
family planning clinics may be required to make in order to 
protect themselves against legal actions. They may be required 
to interrogate anyone looking under the age of 25, require 
birth certificates, and encourage persons to drive alone in 
order to protect themselves from liability. It is not too 
difficult to conceive of anti-choice groups using this 
legislation to harass family planning clinics out of existence.
    Finally, H.R. 3682 will present a number of complex, if not 
intractable, law enforcement problems. The Department of 
Justice has written:

          Enforcement of [the legislation] would present a 
        myriad of serious enforcement problems. Compared with 
        violations of other federal criminal statutes, 
        violations of proposed [the proposed law] would be 
        notably difficult to investigate and to prosecute, and 
        would involve significant, and largely unnecessary, 
        outlays of federal resources.\22\
---------------------------------------------------------------------------
    \22\ See also Justice Department Letter, supra, note 1 at 9, The 
Department of Justice noted at least 6 significant enforcement 
problems: (1) there is no specific intent requirement; (2) 
investigations and prosecutions will impose a particular burden on 
federal authorities because it would criminalize travel for the purpose 
of facilitating behavior that is lawful in the state where it is 
undertaken; (3) the principal targets are likely to be adult and 
teenage relatives and friends of young women seeking abortions; (4) the 
proof of the critical elements in these cases generally will have to 
come through either the defendant or the minor, both of whom would be 
extraordinarily problematic witnesses; (5) state privacy laws 
concerning medical records and the existence of certain state 
privileges will slow the investigation of these crimes; and (6) the 
bill would entail the substantial outlay of substantial federal 
resources.
---------------------------------------------------------------------------

                IV. H.R. 3682 Is Likely Unconstitutional

    By imposing substantial new obstacles and dangers in the 
path of a minor seeking an abortion, H.R. 3682 also raises a 
number of serious, if not fatal, constitutional concerns. 
Planned Parenthood v. Danforth,\23\ held that pregnant minors 
have a constitutional right to choose whether to terminate a 
pregnancy. Although this constitutional right is not 
unlimited--for example, under certain circumstances a state may 
require parental notification or consent, so long as an 
appropriate judicial bypass provision is provided \24\--it 
appears that the right is abrogated under H.R. 3682.
---------------------------------------------------------------------------
    \23\ Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S.52, 74 
(1976).
    \24\ See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 450 (1990) 
(holding that a two-parent notice requirement without a judicial bypass 
was unconstitutional where it ``disserv[ed] the state interest in 
protecting * * * the minor'' because it ``proved positively harmful to 
the minor and her family.''); Belotti v. Baird, 443 U.S. 622, 643 
(1979) (holding that if the State decides to require a pregnant minor 
to obtain one or both parents' consent to an abortion, it also must 
provide an alternative procedure whereby authorization for the abortion 
can be obtained); Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) 
(a state may require a minor seeking an abortion to obtain the consent 
of a parent or guardian, provided that there is adequate judicial 
bypass procedure).
---------------------------------------------------------------------------
    One of the principal problems is that in states which don't 
allow minors to obtain abortions even where parental consent is 
obtained, or which provide for no judicial bypass,\25\ the 
proposed legislation could operate to completely shut off a 
minor's constitutional right to obtain an abortion. This is 
inconsistent with the Supreme Court's decision in Hodgson v. 
Minnesota,\26\ which held that a two-parent notification 
requirement without a bypass mechanism would fail to serve 
``any state interest with respect to functioning families.'' 
The Justice Department has written:
---------------------------------------------------------------------------
    \25\ For example, Colorado's statute allowed for no judicial 
bypass. See Foe. v. Vanderhoof, 389 F.Supp. 947 (D.Colo. 1975).
    \26\ 497 U.S. 417, 450 (1990).

          [The proposed legislation] would appear to be 
        unconstitutional as applied to a minor seeking an out-
        of-state abortion, where the law of the state in which 
        the minor resides lacks a constitutionally sufficient 
        mechanism for satisfying that state's notice or consent 
        requirements when an abortion is to be performed out of 
        state. In such cases the provision would have the 
        effect of deterring or preventing minors (particularly 
        those who cannot drive) from obtaining out-of-state 
        abortions even when, for example, a minor's parents in 
        the ``parental consent'' state would have provided 
        consent, or the minor would have been able to obtain a 
        judicial bypass, had mechanisms for manifesting such 
        consent or obtaining such a bypass for an out-of-state 
        abortion been available.\27\
---------------------------------------------------------------------------
    \27\ Justice Department Letter, supra note 1, at 5-6.

    In addition, the legislation would appear to operate 
unconstitutionally by requiring a double consent requirement in 
cases where both the minor's state of residence and the state 
in which the minor seeks to have the abortion performed have 
parental notice laws. Here again, this appears to serve no 
governmental interest and therefore appears to violate Hodgson. 
---------------------------------------------------------------------------
The Department of Justice has further written:

          [If the proposed legislation] were construed to 
        require satisfaction of the parental involvement 
        requirements of the minor's state or residence as well, 
        then in many cases the federal statute would, in 
        effect, require a minor who would need or want 
        assistance in crossing state lines to satisfy parallel 
        parental consent or notification laws in both the state 
        of residence and the state in which she seeks the 
        abortion. Such duplication would seem to serve little 
        or no legitimate governmental interest, just as the 
        requirement of the second parent's notification without 
        an opportunity for bypass failed to do so in 
        Hodgson.\28\
---------------------------------------------------------------------------
    \28\ Justice Department Letter, supra note 1, at 7.

Unfortunately, when Mr. Scott offered an amendment which would 
have eliminated the possibility of a two-state consent 
requirement, the Majority voted it down on a party line vote.
    Finally, we would note that in addition to these clear cut 
constitutional problems, others have observed that the bill may 
well violate other constitutional requirements. For example, 
the ACLU has written that the bill conflicts with federalism 
principles and the constitution's privileges and immunities 
clause,\29\ and that the bill also contains an inadequate life 
exception and lacks any health exception, in possible 
abrogation of Roe v. Wade and its progeny.\30\ (When Rep. Watt 
offered an amendment to add a health requirement, it was 
defeated by the Majority.) Harvard Law Professor Laurence Tribe 
has also opined that the legislation violates the Constitution 
in at least three ways--``it violates constitutional principles 
of federalism,'' it imposes ``an `undue burden' upon the right 
to choose an abortion'' and ``it lacks a required emergency 
exception for circumstances where the health of the pregnant 
minor would require travel across state lines for an 
abortion.'' \31\
---------------------------------------------------------------------------
    \29\ The ACLU pointed to cases such as In Shapiro v. Thompson, 394 
U.S. 618, 629 (1969), which recognized that ``the nature our Federal 
Union and our constitutional concepts of personal liberty unite to 
require that all citizens be free to travel throughout the length and 
breadth of our land uninhibited by statutes, rules, or regulations 
which unreasonably burden or restrict this movement;'' and Toomer v. 
Witsell, 334 U.S. 385, 395 (1948), which held that the Privileges and 
Immunities Clause ``was designed to insure a citizen of State A who 
ventures into State B the same privileges which the citizens of State B 
enjoy.'' Further, Doe v. Bolton, 410 U.S. 179, 200 (1973), applied 
these principles in the context of restrictive abortion laws, holding 
that the Privileges and Immunities Clause ``protect[s] persons who 
enter [other states] seeking the medical services that are available 
there.'' Statement of American Civil Liberties Union, ``S. 1645/H.R. 
3682 Threatens the Well-Being of Young Women'' (``ACLU Statement''). 
See also, Department of Justice Letter, supra note 1, at 9 (``H.R. 3682 
raises novel and important federalism issues'').
    \30\ Planned Parenthood v. Casey, 505 U.S. at 833, 880 (1992), held 
that all abortion regulations must contain a valid medical emergency 
exception, ``for the essential holding of Roe forbids a State from 
interfering with a woman's choice to undergo an abortion procedure if 
continuing her pregnancy would constitute a threat to her health.'' 
Yet, H.R. 3682 only provides an exception to its penalties when the 
abortion is ``necessary to save the life of a 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 pregnancy itself.'' See ACLU Statement, id.
    \31\ Letter from Laurence H. Tribe to Members of the Senate 
Judiciary Committee at 1 (June 23, 1998).
---------------------------------------------------------------------------

                               Conclusion

    This legislation does nothing to make abortion less 
necessary, only more dangerous. H.R. 3682 will not accomplish 
its policy purposes of encouraging parental involvement and 
takes the wrong approach to the problem of teenage pregnancy. 
It does nothing to increase teen awareness of the dangers of 
premarital sex. The bill does nothing to resolve the problems 
of dysfunctional families where children cannot confide in 
their parents or fear physical harm when they do. The bill does 
nothing to actually stop a teenager from obtaining an out of 
state abortion, other than making the trip more dangerous.
    We are disappointed that the majority has held steadfast in 
its efforts to create an overbroad and confusing criminal and 
civil liability scheme that will lead to family members suing 
family members and throwing grandparents, step-parents and 
doctors in jail for the crime of providing responsible 
assistance to young women in need. Because H.R. 3682 is a 
burdensome attack on the rights and well being of young women, 
we dissent from this legislation.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Chuck Schumer.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson-Lee.
                                   Maxine Waters.
                                   Marty Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Steven R. Rothman.

                                
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