[Senate Report 105-268]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 472
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-268
_______________________________________________________________________


 
                    THE CHILD CUSTODY PROTECTION ACT

                                _______
                                

                 July 27, 1998.--Ordered to be printed

_______________________________________________________________________


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1645]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1645) to amend provisions of 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, reports favorably 
thereon, with an amendment in the nature of a substitute, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................3
 II. Legislative history..............................................3
III. Discussion.......................................................4
 IV. Vote of the Committee...........................................23
  V. Section-by-section analysis.....................................24
 VI. Cost estimate...................................................26
VII. Regulatory impact statement.....................................27
VIII.Minority views of Senators Leahy, Kennedy, Feinstein, Feingold, 
     Durbin, and Torricelli..........................................28
 IX. Changes in existing law.........................................51

    The amendment is as follows:
    Strike all after the enacting clause and insert 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 parentis who has care 
                and control of the minor, and with whom the minor 
                regularly resides;
        who is designated by the law requiring parental involvement in 
        the minor's abortion decision as a person to whom notification, 
        or from whom consent, is required;
          ``(3) the term `minor' means an individual who is not older 
        than the maximum age requiring parental notification or 
        consent, or proceedings in a State court, under the law 
        requiring parental involvement in a minor's abortion decision; 
        and
          ``(4) the term `State' includes the District of Columbia and 
        any commonwealth, possession, or other territory of the United 
        States.''.
    (b) Clerical Amendment.--The table of chapters for part I of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 117 the following new item:

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

                               I. PURPOSE

    S. 1645, the Child Custody Protection Act, has one simple 
purpose: to help prevent circumvention of duly enacted State 
laws that seek to promote parental involvement in a minor 
daughter's decision with respect to abortion. These State laws 
are designed to accomplish two objectives. The first is to 
protect the rights of parents to be involved in the moral and 
medical decisions of their minor daughters. The second is to 
protect the health and safety of children. The Supreme Court 
has upheld these laws as legitimate efforts to protect familial 
relations. Unfortunately, too often they are being circumvented 
by third parties who are taking minors across State lines 
without their parents' knowledge so that the abortion may be 
performed in a State that does not require parental 
involvement.
    S. 1645 addresses this problem by prohibiting the knowing 
transportation of 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 A misdemeanor. The act also allows a parent who 
has been injured by a violation of the act to seek relief 
through a civil action.
    S. 1645 will strengthen the effectiveness of State laws 
designed to protect familial relations and safeguard children 
from health and safety risks in this area. These laws recognize 
that a girl's parents will generally be the best source of 
guidance for her as she is deciding about abortion. Parents 
will also have the most knowledge about their daughter's prior 
psychological and medical history and can therefore provide 
critical information in determining the best medical course for 
their daughter. Finally, parents are usually the only people 
who can provide authorization for postabortion 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, she is denied their advice and 
assistance, and the risks to her health increase significantly.
    S. 1645 does not supersede, override, or in any way alter 
existing State laws regarding minors' abortions. Nor does the 
act impose any Federal parental notice or consent requirement; 
rather, it merely provides assistance to States that have 
elected to adopt such requirements in securing their 
effectuation.

                        II. LEGISLATIVE HISTORY

    This legislation was introduced on February 12, 1998, by 
Senator Abraham, with the cosponsorship of Senator Lott, 
Senator DeWine, Senator Inhofe, Senator Nickles, Senator 
Coverdell, Senator Helms, Senator Coats, Senator Sessions, 
Senator Enzi, Senator Craig, Senator Kyl, Senator Hatch, 
Senator Faircloth, Senator Brownback, Senator Santorum, Senator 
McConnell, Senator Hutchinson, Senator Bond, and Senator 
Grassley. Senator McCain, Senator Grams, Senator Hagel, Senator 
Burns, and Senator Smith of New Hampshire subsequently were 
added as cosponsors. The bill was referred to the Committee on 
the Judiciary, where a hearing was held on May 20. The 
Committee marked up the bill on July 9 and July 16, whereupon 
it reported the bill out with a favorable recommendation by a 
10-to-6 vote.

                            III. DISCUSSION

                      A. Need for the Legislation

    S. 1645, the Child Custody Protection Act, is designed to 
address the problem of people transporting minor girls across 
State lines and thereby circumventing State 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 June 6-8, 1998, telephone poll conducted by Baselice & 
Associates found that 85 percent of those surveyed did not believe that 
an individual should be able to take a minor girl across State lines to 
obtain an abortion without her parents' knowledge. 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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    Many States have decided that involvement of parents in 
their daughter's decision to abort her child is crucial and 
have enacted laws designed to further this involvement. There 
are many good reasons why States enact such laws. First, 
parents are generally presumed to be the best source of 
guidance for their minor children on most important decisions. 
Second, a girl may have a medical condition that makes an 
abortion a particularly risky procedure for her or requires 
special precautions to be taken. For example, she may be 
allergic to certain kinds of anesthetics or have a weakened 
immune system that puts her at high risk of infection. Parental 
involvement will help assure that precautions appropriate to a 
girl's particular circumstances are taken. Third, postoperative 
complications, while not the rule, occur often enough that the 
recommended medical course involves some monitoring of certain 
aspects of the patient's health. Parental involvement increases 
the probability that, if a girl does suffer complications after 
an abortion, she will receive prompt and appropriate medical 
attention. For example, a perforated uterus has been considered 
a ``normal risk'' of the abortion procedure.3 
Untreated, a perforated uterus may result in an infection, 
complicated by fever, endometritis, and 
parametritis.4 The New England Journal of Medicine 
describes the risk of such infection this way:
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    \3\ Reynier v. Delta Women's Clinic, 359 So.2d 733 (La. Ct. App. 
1978).
    \4\ Phillip G. Stubblefield and David A. Grimes, ``Current 
Concepts: Septic Abortions,'' New England J. Med. 310 (Aug. 4, 1994).
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          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. 
        5
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    \5\ Id.

Without the knowledge that their daughter has had an abortion, 
parents may not be able fully to assist 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 Judiciary Committee heard testimony from two mothers 
whose daughters were secretly taken for abortions without their 
parents' knowledge, with potentially devastating consequences. 
In both cases, the minors on whom the abortions were performed 
suffered serious medical complications.
    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.6 In the words of Joyce Farley, the 
abortion was arranged to destroy evidence--evidence that her 
12-year-old daughter had been raped.7 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).8 Following the 
abortion, the mother of the rapist dropped off the child in 
another town 30 miles from the child's home.9 The 
child returned to her home with severe pain and bleeding that 
revealed complications from an incomplete 
abortion.10 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.11 Fortunately, being a nurse, Ms. Farley 
knew this advice was wrong and could be harmful, but her 
daughter would not have known this.12 Ms. Farley's 
daughter, because of her mother's intervention, ultimately 
received further medical care and a second procedure to 
complete the abortion.13
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    \6\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (statement of Joyce Farley).
    \7\ Id.
    \8\ Id.
    \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ Id.
    \13\ 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.14 The adult friend drove Ms. Roberts' 
daughter to the abortion clinic 45 miles away from her home and 
even paid for the abortion.15 After 2 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.16 Their 
daughter's depression eventually led to her being 
hospitalized.17 Upon a physical examination, doctors 
found that the abortion had been incompletely performed and 
required surgery to repair the damage done by the 
abortionist.18 The hospital called Ms. Roberts and 
told her that they could not do reparative surgery without a 
signed consent form.19 The following year, Ms. 
Roberts' daughter developed an infection and was diagnosed with 
pelvic inflammatory disease, which again required a 2-day 
hospitalization for IV antibiotic therapy and requiring a 
signed consent form.20 Ms. Roberts and her family 
were responsible for over $27,000 in medical costs all of which 
resulted from this one secret abortion.21
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     \14\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (statement of Eileen Roberts).
     \15\ 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.
    \16\ Id.
    \17\ Id.
    \18\ Id.
    \19\ Id.
    \20\ Id.
    \21\ Id.
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                 Widespread circumvention of state laws

    States with parental involvement laws are becoming 
increasingly aware that these laws are being circumvented. Many 
abortion clinics encourage the evasion of State parental 
consentlaws. 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 that had 
seen an increase in patients from Pennsylvania. One clinic, in 
Cherry Hill, NJ, 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, 
NY, reported that it was not unusual to see Pennsylvania 
teenagers as patients in 1995, though earlier it had been 
rare.22
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    \22\ ``Teen-Agers Cross State Line in Abortion Exodus,'' The New 
York Times, Dec. 18, 1995.
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    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, DC, 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.'' 
23
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    \23\ 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, PA, was 
purchased by Metropolitan Medical Associates, an abortion 
clinic in Englewood, NJ. Unlike Pennsylvania, which has a 
parental consent law, in New Jersey, as the ad proclaims, ``No 
Parental Consent Required.'' 24 Another ad appeared 
in the 1997-98 Yellow Pages for Harrisburg, PA. 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, MD (about 100 miles away) where, 
the ad notes, there is ``No Waiting Period'' and ``No Parental 
Consent'' requirement.
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    \24\ It is noteworthy that in September 1996, a reporter for The 
Record newspaper published in nearby Hackensack, NJ, 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 R04.
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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, IL. 
Research has found that based on the available data, the 
frequency with which minors traveled 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.25
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    \25\ Charlotte Ellertson, ``Mandatory Parental Involvement in 
Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and 
Indiana,'' Am. J. Pub. Health, Aug. 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 1981, according 
to a published study and anecdotal information. A 1986 study 
published in the American Journal of Public Health found that 
in the 4 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.26
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    \26\ Virginia G. Cartoof and Lorraine V. Klerman, ``Parental 
Consent for Abortion: Impact of the Massachusetts Law,'' Am. J. Pub. 
Health, Apr. 1986, at 398.
---------------------------------------------------------------------------
    The study noted that due to what the authors described as 
``astute marketing,'' one abortion clinic in New Hampshire 
almost doubled 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.' '' 27
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    \27\ Id.
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    In April 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.28
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    \28\ ``Mass. Abortion Laws Push Teens Over Border,'' Boston Herald, 
Apr. 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 5 months before the parental consent law 
took effect in June 1993 with data for the 6 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 percent * * * [h]owever, this decline was 
largely offset by a 32-percent increase in the ratio of minors 
to older women among Mississippi residents traveling to other 
States for abortion services.'' \29\
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    \29\ 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.'' 30
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    \30\ Id.
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Virginia

    Grace S. Sparks, executive director of the Virginia League 
of Planned Parenthood, predicted in February 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 * * *.'' \31\
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    \31\ Lisa A. Singh, ``Those Are the People Who Are Being Hurt,'' 
Style Weekly, Feb. 11, 1997.
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    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 5 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 7 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.32
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    \32\ ``Fewer Teens Receiving Abortions in Virginia,'' The 
Washington Post, Mar. 3, 1998.
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     Adult Male Predators and Evasion of Parental Involvement Laws

    One significant reason behind evasion of a State's parental 
involvement law can be an effort to cover up statutory rape law 
violations.
    There are several indications that a majority of teenage 
girls who become pregnant are impregnated by adult men.
    In a study of over 46,000 pregnancies by school-age girls 
in California, researchers found that ``71 percent, 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 to 7 years 
their senior. Men aged 25 or older father more births among 
California school-age girls than do boys under age 18.'' \33\ 
Another 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. 
34 35 Obviously, many of these men are 
vulnerable to statutory rape charges, which vulnerability 
provides a strong incentive to pressure the much younger girl 
to agree to an abortion without revealing the pregnancy to the 
parents. Currently, a man seeking to do so can evade parental 
consent requirements by driving his victim across State lines.
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    \33\ Mike A. Males, ``Adult Involvement in Teenage Childbearing and 
STD,'' Lancet, vol. 64, (July 8, 1995) (emphasis added). See also, Mike 
A. Males and Kenneth S.Y. Chew, ``The Ages of Fathers in California 
Adolescent Births, 1993,'' Am. J. Pub. Health (Apr. 1996).
    \34\ See Stanley Henshaw and Kathryn Post, ``Parental Involvement 
in Minors' Abortion Decisions,'' Fam. Planning Perspectives, vol. 24, 
no. 5 (Sept./Oct. 1992).
    \35\ Footnote has been omitted.
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                  B. The Child Custody Protection Act

    S. 1645 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 a minor under 18. Nor does it attempt to regulate 
any purely intrastate activities related to the procurement of 
abortion services. S. 1645 simply helps effectuate the policies 
of States that have decided to provide a layer of protection 
for their own residents against these dangers to children's 
health and safety by requiring parental involvement in the 
abortion decision.

                         Constitutional Issues

        1. Constitutional Authority for the Enactment of S. 1645

    S. 1645 is plainly within Congress' power to regulate 
commerce among the several States.36 Commerce, as 
that term is used in the Constitution, includes travel whether 
or not that travel is for reasons of business.37 To 
transport another person across State lines is to engage in 
commerce among the States. Thus, as Professor Harrison 
explained in testimony before the Committee on this 
bill,38 this legislation does not require 
consideration of the more difficult questions in this area, 
which concern the scope of Congress' power to regulate activity 
that is not, but that affects, commerce among the 
States.39 Whatever the case may be with respect to 
legislation of the former type, it has long been held to be a 
proper use of the interstate commerce for Congress, in the 
pursuit of noncommercial objectives, to forbid the use of the 
instrumentalities of interstate commerce.40
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    \36\ See art. I. sec. 8, cl. 3.
    \37\ See e.g., Caminetti v. United States, 242 U.S. 470 (1917).
    \38\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., sess. (May 20, 
1998) (statement of John Harrison).
    \39\ 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).
    \40\ See e.g., Caminetti v. United States, 242 U.S. 470 (1917).
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    In fact, S. 1645 presents, if anything, an easier case than 
Caminetti, the leading case for this proposition, because the 
bill 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, as Professor 
Harrison testified, ``in S. 1645 Congress is seeking to ensure 
that the laws of the State primarily concerned, the State in 
which the minor resides, are complied with. In doing so 
Congress is dealing with a problem that arises from the federal 
union, not making its own decisions concerning local matters 
such as domestic relations or abortion.'' 41 This 
makes it a quintessential example of legislation to address a 
circumstance where Federal power is needed ``to govern affairs 
which the individual states, with their limited territorial 
jurisdictions, are not fully capable of governing.'' 
42
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    \41\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (statement of John Harrison).
    \42\ See United States v. South-Eastern Underwriters Ass'n, 322 
U.S. 533 (1944).
---------------------------------------------------------------------------

                     2. Federalism/Right to Travel

    It has been suggested that because this legislation limits 
the ability of the State to which a minor is transported to 
obtain an abortion to apply its own policies to conduct that 
occurs within its own borders S. 1645 is problematic under 
principles of federalism. But when two States have different 
policies, even in the absence of Federal legislation, choice of 
law principles will frequently dictate the application of the 
law of a State different from the one where the conduct 
occurred.43 That is especially the case under modern 
``interest analysis'' conflict principles.44 All S. 
1645 does is give preference to the minor's home State's policy 
concerning the degree of parental involvement required before 
an abortion may be performed on a minor. A person's residence 
is a well-established basis for a State to have a sufficient 
interest to warrant considering applying that State's law even 
where there are States with competing claims.45 
Indeed, ``the law of a person's domicile typically governs 
family law matters.'' 46 Consistent with this rule, 
the Uniform Child Custody Jurisdiction and Enforcement Act, 
recently approved by the National Conference of Commissioners 
on Uniform State laws, gives exclusive jurisdiction to make 
custody determinations to the court in the jurisdiction where 
the child has lived for the 6 months preceding the commencement 
of a child custody proceeding.47 Thus, even in the 
absence of any Federal legislation, the home State of the minor 
would have a strong argument for extraterritorial application 
of its parental involvement statutes.
---------------------------------------------------------------------------
    \43\ See Restatement of Law Second, Conflict of Laws 2d, sec. 6 
(1971);
    \44\ See B. Currie ``Selected Essays on the Conflict of Laws'' 
(1963).
    \45\ See Brilmayer, ``Interstate Preemption: the Right to Travel, 
the Right to Life, and the Right to Die,'' 91 Mich. L. Rev. 873, 877-78 
(1993).
    \46\ Id. at 887 citing R. Weintraub,'' Commentary on the Conflict 
of Laws'' 228-30, 240-45, 256 (traditional rule was that only State of 
child's domicile could determine custody) (2d ed. 1980).
    \47\ Internet site, www.law.upenn.edu/library/ulc/uccjea/
chldcus2.htm; see also Trindle v. State, 602 A.2d 1232 (Md. 1992) 
(upholding Maryland conviction for child kidnapping by father and 
stepmother where mother from whose custody child was taken resided in 
Maryland and child formerly resided there, even though the kidnapping 
took place entirely in Delaware and abroad); Rios v. State, 733 P.2d 
242 (Wyo. 1987) (sustaining Wyoming conviction for child kidnapping 
because custodial mother had moved there while father had temporary 
custody because mother now resided there and child was expected to 
reside there as well); see generally, Bradford, ``What Happens if Roe 
is Overruled? Extraterritorial Regulation of Abortion by the States,'' 
35 Ariz. L. Rev. 87, 100-103 (1993), discussing these and other cases.
---------------------------------------------------------------------------
    Especially in the absence of Federal legislation, however, 
extraterritorial assertions of jurisdiction would undoubtedly 
be questioned under various lines of cases limiting the States' 
powers to regulate interstate conduct.48 Indeed, 
even Pennsylvania's efforts to punish the intrastate portion of 
conduct of the man and his mother who took Joyce Farley out of 
her parents' custody was challenged on this 
ground.49 In addition, there are serious practical 
problems for States trying to pursue anyone for interstate 
conduct: limits on their agents' investigatory powers, possible 
extradition issues, and the like. All of these issues in 
combination present serious obstacles to a State relying 
exclusively on its own powers to prevent circumvention of its 
parental involvement laws by third parties taking minors out of 
State.
---------------------------------------------------------------------------
    \48\ See Letter of Acting Assistant Attorney General Sutin to 
Senator Leahy, July 8, 1998, n. 3 and materials cited therein.
    \49\ See Commonwealth v. Hartford, No. 0008PHL97, Brief for 
Defendant-Appellant (Penn. Superior Ct., filed ______). That this 
challenge did not succeed in Pennsylvania does not guarantee that it 
would not succeed elsewhere.
---------------------------------------------------------------------------
    Thus, this conduct presents a fairly classic case in 
prudential as well as constitutional terms for the Federal 
Government to intervene to assist States in preventing this 
from happening. As noted in the prior section of this report, 
whatever arguments there may be against a State's efforts to 
limit this kind of behavior, there are no similar lines of 
cases limiting Congress' power to prohibit the use of the 
channels of interstate commerce for a particular kind of 
conduct. Enactment of legislation of this type will also help a 
State defend against legal challenges to its own authority to 
seek to enforce its parental involvement statute 
extraterritorially should it choose to do so.50 
Finally, the Federal Government's agents also will not 
encounter the same kinds of potential practical challenges to 
their authority to operate outside the home State that the home 
State's agents might experience.
---------------------------------------------------------------------------
    \50\ See, e.g., In re Rahrer, 140 U.S. 545 (1891), where the 
Supreme Court upheld a conviction under State law prohibiting the sale 
of liquor shipped from out-of-State after Congress had passed the 
Wilson Act subjecting liquor from out-of-State to such laws, even 
though the previous years, the Court had held in Leisy v. Hardin, 135 
U.S. 100 (1890), before enactment of the Wilson Act, that such laws 
violated the dormant commerce clause and could not be enforced; see 
also Clark Distilling Co. v. Western Maryland Railway, 242 U.S. 311 
(1917), where the Court similarly sustained the Webb-Kenyon Act of 
1913, which imposed a federal prohibition on the shipment of alcoholic 
beverages into a State where their possession or use was unlawful; see 
generally P. Brest and S. Levinson, ``Processes of Constitutional 
Decisionmaking,'' 2d ed. (Little Brown & Co, 1983), at 40-48, 
discussing these and other cases.
---------------------------------------------------------------------------
    A very recent exercise of Congress' power to regulate 
interstate commerce in order to prevent the avoidance of a duty 
imposed by a person's home State law was Congress' enactment of 
the Deadbeat Parents Punishment Act of 1998.51 That 
law made it a felony for anyone to travel in interstate or 
foreign commerce with the intent to evade a support obligation, 
if the obligation has remained unpaid for a period longer than 
1 year, or is greater than $5,000.52
---------------------------------------------------------------------------
    \51\ Public Law 105-187.
    \52\ Id.
---------------------------------------------------------------------------
    Other longstanding Federal laws have gone significantly 
further. 18 U.S.C. 922(a)(5) forbids anybody who is not a 
licensed importer, manufacturer, dealer, or collector to 
transfer any firearm to any person other than a licensed 
importer, manufacturer, dealer, or collector, who the 
transferor knows or has reasonable cause to believe does not 
reside in the State where the transferor resides. The 
counterpart provision on the buyer's side, 18 U.S.C. 922(a)(9), 
forbids any person who is not a licensed importer, 
manufacturer, dealer, or collector to receive any firearm in a 
State where he does not reside unless the receipt is for lawful 
sporting purposes. It is plain that the purpose behind both of 
these provisions is the same as the purpose behind the Child 
Custody Protection Act: to protect the policies of the State of 
residence of the person seeking to buy the firearm, even though 
the sale/purchase is legal under the laws of the State where 
the firearm is being sold.53 But the firearms 
provisions go further than S. 1645 in at least three respects. 
First, they do not simply forbid interstate travel to obtain a 
firearm, they forbid the sale to or purchase by the 
nonresident. Second, they impose this prohibition even if the 
sale or purchase would in fact be perfectly legal in the 
resident's home State. This prophylactic step thus potentially 
interferes with the policies of the State where the gun would 
otherwise be sold and the one where the purchaser resides in 
order to make sure that the policies of States with more 
restrictive gun laws than either are not circumvented. If this 
were all that the firearms provisions did, the analogous law 
would be a Federal law forbidding the performance of an 
abortion on a minor who resides out-of-State. Third, however, 
the firearms provisions also burden the ability of the State 
where the provisions prevent guns from being sold to carry out 
a policy in favor of greater access to guns by people in that 
State, for example by allowing the carrying of a concealed 
weapon (which a State may believe helps prevent crime). Thus, 
these firearms provisions go much further in imposing Federal 
restrictions that effectively prevent a State from carrying out 
its own policy within its own borders in order to protect the 
authority of other States to enact firearms restrictions than 
S. 1645 goes in order to protect the authority of States to 
require parental involvement in the decision whether an 
abortion shall be performed on a minor.54
---------------------------------------------------------------------------
    \53\ In the Congressional findings and declarations portion of the 
act June 19, 1968, Public Law 90-351, Congress indicated that this was 
one of its central purposes:

      ``(a) The Congress hereby finds and declares--
        ``(1) that there is a widespread traffic in firearms 
      moving in or otherwise affecting interstate or foreign 
      commerce, and that the existing Federal controls over such 
      traffic do not adequately enable the States to control this 
      traffic within their own borders through the exercise of 
      their police powers.''

    \54\ These firearm restrictions are accompanied by slightly 
relaxed, but still quite stringent restrictions on the ability of 
licensed importers, manufacturers, dealers, or collectors to sell to 
anyone who the licensee knows or has reasonable cause to believe does 
not reside in the State where the licensee's business is located, see 
18 U.S.C. 922(b)(3) (which generally forbids such transactions but 
allows them in the case of the loan or rental of a firearm for 
temporary lawful sporting use, and in the case of rifles or shotguns 
provided that the legal requirements for their transfer in both the 
licensee's and purchaser's home State have been complied with, while 
presuming that the licensee has actual knowledge of the State laws of 
both States); and by similar restrictions on the ability of anyone to 
have a firearm delivered from out-of-State unless the acquisition is by 
bequest and lawful in the State where it was acquired, see 18 U.S.C. 
922(c)(3).
---------------------------------------------------------------------------
    Finally, S. 1645 is not unlike the Mann Act,55 
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, and in U.S. v. 
Pelton,56 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.
---------------------------------------------------------------------------
    \55\ 18 U.S.C. 2421.
    \56\ 578 F.2d 701 (1978) (cert. denied).
---------------------------------------------------------------------------
    Whatever the outer prudential or constitutional limits on 
legislation of this type may be in our Federal system, the 
Child Custody Protection Act does not come close to them. Our 
Federal system does not leave Congress powerless to take action 
to prevent third parties from takingchildren out of their home 
State in order to interfere with that State's efforts to protect 
children by assuring that parents are involved in the serious decision 
whether their daughter will have an abortion performed on her.

  3. Roe v. Wade, Planned Parenthood v. Casey, and the Child Custody 
                             Protection Act

a. the supreme court's general test for the constitutionality of state 
                        laws regulating abortion

    In Roe v. Wade,57 a majority of the Supreme 
Court found that the 14th 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 14th 
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.58 Although Roe v. Wade's 
holding that the Constitution provides some special protection 
for the right to have an abortion remains a part of the Court's 
jurisprudence, the ``trimester'' method of regulation it 
devised 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. In Planned 
Parenthood v. Casey,59 the Court changed its 
approach to analyzing the scope of permissible State regulation 
of abortion and the standards to be applied in evaluating the 
constitutionality of the regulation. 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.60
---------------------------------------------------------------------------
    \57\ 410 U.S. 113 (1973).
    \58\ Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia, J., 
dissenting).
    \59\ 505 U.S. 833 (1992).
    \60\ 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'').
---------------------------------------------------------------------------

         b. state parental involvement laws under roe and casey

    Following the Court's decision in Roe v. Wade,61 
many States enacted parental consent or notification statutes 
for abortions performed on minors. A parental consent law is 
generally a law that requires one or both parents to give 
actual consent before their minor daughter undergoes an 
abortion. A parental notification law requires that one or both 
of the parents of the minor be notified at some time prior to 
the abortion.
---------------------------------------------------------------------------
    \61\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
    The Court first considered a law requiring parental 
involvement in a minor daughter's abortion in Planned 
Parenthood of Central Missouri v. Danforth.62 The 
Missouri statute gave a minor girl's parent an absolute veto 
over her decision to have an abortion. While noting that States 
have greater authority to regulate abortion procedures for 
minors than those for adults, the majority, led by Justice 
Blackmun, found that a complete parental veto was 
unconstitutional.63
---------------------------------------------------------------------------
    \62\ 428 U.S. 52 (1976).
    \63\ Id.
---------------------------------------------------------------------------
    In Bellotti v. Baird,64 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. The statute 
returned to the Supreme Court in Bellotti v. Baird (Bellotti 
II).65 The statute in Bellotti II required a minor 
to receive the consent of her parents or a judicial bypass 
proceeding, but the bypass proceeding did not allow the court 
to authorize the abortion on the grounds that the minor was 
sufficiently mature to make an informed decision regarding the 
abortion. The Supreme Court invalidated the statute without a 
majority opinion.
---------------------------------------------------------------------------
    \64\ 428 U.S. 132 (1976).
    \65\ 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.66 
This has become the de facto constitutional standard for 
parental consent and notification laws. In upholding the 
principle of 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.'' 67 Thus, the plurality 
tried to design guidelines for a judicial bypass proceeding 
that allowed States to address these interests.
---------------------------------------------------------------------------
    \66\ Id. at 651.
    \67\ Id. at 634.
---------------------------------------------------------------------------
    In H.L. v. Matheson,68 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 6 to 3, 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.'' 
69
---------------------------------------------------------------------------
    \68\ 450 U.S. 398 (1981).
    \69\ Id. at 409.
---------------------------------------------------------------------------
    In Planned Parenthood Association of Kansas City, Missouri, 
Inc. v. Ashcroft,70 the Court found a State law to 
be constitutional that 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.
---------------------------------------------------------------------------
    \70\ 462 U.S. 476 (1983).
---------------------------------------------------------------------------
    In Ohio v. Akron Center for Reproductive Health,\71\ 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.72 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.
---------------------------------------------------------------------------
    \71\ 497 U.S. 502 (1990).
    \72\ Id. at 514-515.
---------------------------------------------------------------------------
    In Hodgson v. Minnesota,\73\ 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, made clear that the requirement that both 
parents be notified of the abortion and the 48-hour waiting 
period the law required between notification and the 
performance of the abortion would be constitutional if these 
requirements were accompanied by a judicial bypass procedure 
that met constitutional standards.
---------------------------------------------------------------------------
    \73\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
    Finally, in Planned Parenthood v. Casey,\74\ the three 
Justice plurality opinion reaffirmed the continuing validity of 
this line of cases and pursuant to it, upheld Pennsylvania's 
requirement for informed one-parent consent coupled with a 
judicial bypass.
---------------------------------------------------------------------------
    \74\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------

c. judicial bypass under the supreme court's parental involvement cases

    Before leaving this discussion of the case law on abortion 
and State parental involvement statutes, it seems useful to 
summarize the Supreme Court's views on the kinds of judicial 
bypass proceedings that, if included in a State parental 
involvement law, will make the law constitutional in the 
Court's eyes.
    In a State with a parental involvement law, a judicial 
bypass provides a mechanism for a minor to get an order from an 
adjudicatory tribunal 75 that she may have an 
abortion without the parental involvement that would otherwise 
be required. The standard for judicial bypass proceedings 
follows the general test set forth in Bellotti v. Baird 
(Bellotti II).\76\ Under Bellotti II, the bypass procedure must 
provide for an abortion to be approved:
---------------------------------------------------------------------------
    \75\ 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.)
    \76\ 443 U.S. 622 (1979) (Bellotti II.)
---------------------------------------------------------------------------
          (1) if the minor shows that she is mature and well-
        informed enough to make her own decision, in 
        consultation with her physician, without regard to her 
        parents'' wishes; or
           (2) that even if she is not mature enough to make 
        the decision by herself, performance of the abortion 
        without parental notice would be in her best interests.
    The procedure must also be confidential (such that her 
identity is not divulged to her parents or others) and be 
conducted with expedition to allow the minor an effective 
opportunity to obtain the abortion.77
---------------------------------------------------------------------------
    \77\ 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 bet 
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).
---------------------------------------------------------------------------
    Evidence concerning maturity may include work and personal 
experience, appreciation of the gravity of the procedure, and 
displays of personal judgment.78 Evidence that the 
abortion is in the minor's best interests may include medical 
risks which depend on the time, place or type of procedure to 
be performed.79 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.80 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.81
---------------------------------------------------------------------------
    \78\ See Hodgson, 497 U.S. 417 (1990).
    \79\ See generally 1 Am. Jur. 2d ``Abortion and Birth Control'' 66.
    \80\ See In Re Moe, 26 Mass App. 915 (1988).
    \81\ 1 Am. Jur. 2d ``Abortion and Birth Control'' 66. Also, the 
court may consider alternatives to abortion, and whether assuming the 
responsibilities of motherhood would be best in such situations.
---------------------------------------------------------------------------

                           e. recapitulation

    Thus, a few clear principles emerge under the Supreme 
Court's cases regarding abortion and State parental involvement 
laws. As a general matter, a State may require the consent of, 
or notification to, one or both of a minor's parents before an 
abortion may be performed on their daughter, so long as the 
State also provides for a constitutionally adequate judicial 
bypass procedure, a mature minor or a minor with regard to whom 
a court has found that parental involvement is not in her best 
interests pursuant to which can bypass parental involvement 
requirements and obtain the abortion on the strength of a court 
order.

 f. the child custody protection act and the supreme court's abortion/
                       parental involvement cases

    The core operative provision of the Child Custody 
Protection Act, set out in proposed subsection 2401(a)(1) of 
title 18 in the Committee-reported substitute, outlaws the 
abridgment of parental rights by anyone who knowingly 
transports a minor across State lines with the intent that the 
minor obtain an abortion. Proposed subsection 2401(a)(2) 
defines an abridgment of parental rights as the out-of-State 
performance of an abortion on the minor without the parental 
consent or notification, or judicial authorization, ``that 
would have been required by [the home State's parental 
involvement] law had the abortion been performed'' in the 
minor's home State. Thus, the kind of parental involvement the 
act requires is defined entirely by the requirements of the 
home State's law. If a State parental involvement law 
unconstitutionally burdens a minor's right to an abortion, then 
that State law imposes no parental involvement requirements, 
because any requirements it might seek to impose are superseded 
by the Constitution.82 In this circumstance S. 1645 
will not impose any parental involvement requirement either. 
Thus, in the main, as Professor Harrison explained in his 
testimony before the Committee, ``S. 1645 does not raise any 
questions concerning the permissible regulation of abortion 
that are independent of the state laws that it is designed to 
effectuate.'' 83 Rather, ``to the extent that a 
state rule is inconsistent with the Court's doctrine, that rule 
is ineffective and this bill would not make it effective.'' 
84
---------------------------------------------------------------------------
    \82\ Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 176-80 (1803) 
(unconstitutional Federal law cannot bind courts or other departments 
of the Federal Government).
    \83\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (statement of Prof. John Harrison).
    \84\ Id.
---------------------------------------------------------------------------
    Accordingly, some constitutional criticisms of S. 1645 made 
by opponents of this legislation of necessity miss their mark. 
For example, the contention that a State law parental notice or 
consent requirement is unduly burdensome because some minors 
will find it too difficult to tell their parents about their 
pregnancy, and that judicial bypass does not sufficiently 
mitigate this burden because court processes are inherently too 
difficult and too intimidating for minors to be able to use, 
finds its answer in the Supreme Court cases upholding State 
laws structured in exactly this fashion.85
---------------------------------------------------------------------------
    \85\ See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 899-900.
---------------------------------------------------------------------------
    For similar reasons, the suggestion in Professor Tribe's 
letter to the members of the Judiciary Committee that 
subsection (b)(1) of proposed section 2401 of title 18 preempts 
any State-law-based health exceptions and is constitutionally 
inadequate 86 is similarly wrong on two scores. 
First, a careful reading of the Committee-adopted substitute's 
language (which may not have been available to Professor Tribe 
when he wrote his letter) makes clear that his view that 
subsection (b)(1) preempts the home State's health exceptions 
is mistaken. Rather, subsection (b)(1)'s exception is intended 
to supplement any health exceptions recognized by the home 
State. This is because subsection (a)(2) defines an abridgment 
of parental rights as the performance of an out-of-State 
abortion without the parental involvement that would have been 
required under the home State's laws. Any exceptions contained 
in that State's laws must therefore be incorporated by 
reference. This is because if a home State law has an 
applicable exception, the home State would not have required 
parental involvement in the circumstances covered by the 
exception, and hence performance of the abortion without 
parental involvement would not be an abridgment of parental 
rights under subsection (a)(1). Second, as explained above, in 
circumstances where the home State's health exception is not 
constitutionally adequate, the home State will impose no 
requirements because any requirements it sought to impose will 
be trumped by the U.S. Constitution. Thus, no matter what the 
scope of subsection (b)(1)'s exception, it cannot create 
constitutional difficulties for S. 1645. Rather, as Professor 
Harrison explained in his testimony before the Committee, 
``[b]ecause constitutional limits on the States' regulatory 
authority are in effect incorporated into subsection (a) of 
proposed Section 2401, subsection (b) is in addition to any 
exceptions required by the Court's doctrine.'' 87
---------------------------------------------------------------------------
    \86\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (letter of Prof. Larry Tribe).
    \87\ Hearing on S. 1645, the Child Custody Protection Act, before 
the Senate Committee on the Judiciary, 105th Cong., 2d sess. (May 20, 
1998) (statement of Prof. John Harrison).
---------------------------------------------------------------------------
    The remaining question is whether the barrier S. 1645 
erects against evasion of parental involvement laws that 
themselves satisfy the Constitution might nevertheless be found 
unconstitutional under the Supreme Court's abortion and 
parental involvement cases. In the Committee's view, such a 
result would be quite peculiar.
    Nothing in the Court's opinions on any of the State 
parental involvement laws on whose constitutionality it has 
passed suggests that the laws' constitutionality turns in any 
way on the option that a minor could have of avoiding 
application of these laws by seeking an abortion out of State. 
To the contrary, as the Court has analyzed these laws, it has 
consistently assumed that the minor's options are to involve 
the parent as the law requires, or, if the law permits, to seek 
a judicial bypass. It has consistently held that giving a minor 
these options, and only these options, is constitutionally 
permissible. Thus it would be quite surprising if the Court 
were suddenly to hold that even the complete withdrawal of an 
option whose availability the Court did not even consider--the 
obtaining of an out-of-State abortion--was nevertheless an 
unconstitutional abridgment of a minor's right to an abortion.
    S. 1645, however, stops very far short of withdrawing that 
option. First, it places no limit on the minor herself crossing 
State lines to obtain the abortion,88 nor does it 
place any limit on the out-of-State abortion provider's 
performance of the abortion. Second, it places no penalties on 
anyone for the minor's obtaining the abortion out-of-State, 
provided that she does so with parental involvement or judicial 
authorization sufficient to satisfy her home State's law. 
Finally, it places no penalties on any person who reasonably 
believed, based on information obtained from the minor's 
parents or other compelling facts, that parental involvement or 
judicial authorization sufficient to satisfy the minor's home 
State law had occurred.
---------------------------------------------------------------------------
    \88\ See S. 1645, sec, 2(a), proposed 18 U.S.C. 2401(b)(2).
---------------------------------------------------------------------------
    In its letter to Senator Leahy, the Department of Justice 
identified two instances where the effect of S. 1645 may be to 
make an out-of-State abortion sufficiently difficult for a 
minor to obtain that, if going out of State were the only way 
for her to obtain an abortion, the burden S. 1645 imposes on 
the out-of-State option might be subject to constitutional 
question under the Court's case law. First, DOJ argues that 
there may be instances where, because the State's parental 
consent or notice requirement applies only to doctors licensed 
to practice in-State, and because the State's judicial bypass 
proceeding requires application for a waiver of the requirement 
(which would not apply in the first place to an out-of-State 
abortion provider), a judicial bypass might not be available 
for an out-of-State abortion.89
---------------------------------------------------------------------------
    \89\ Letter of Acting Assistant Attorney General Sutin to Senator 
Leahy, July 8, 1998, pp. 6-7 and n. 7.
---------------------------------------------------------------------------
    The particular example DOJ cites of a statute that presents 
these kinds of difficulties is Montana's parental notice 
requirement, which, at least at present, would not be the basis 
for any action under the Child Custody Protection Act, because 
it is under preliminary injunction and hence imposes no 
parental involvement requirements of any kind.90 
Assuming that there are other parental involvement laws that 
are not under injunction, are constitutional, and therefore 
would be the basis for action under the Child Custody 
Protection Act and that present the same difficulty, however, 
it is still impossible to see how they would raise questions 
about S. 1645's constitutionality. Since the State law must 
itself be constitutional in order for S. 1645 to attach any 
consequences to it, by hypothesis the minor would be able to 
obtain the abortion in her home State without unconstitutional 
restrictions on her right to do so--which is all the Supreme 
Court has ever said is required.
---------------------------------------------------------------------------
    \90\ Wicklund v. State, No. ADV 97-671 (Mont. 1st Jud. Dist. Feb. 
13, 1998). The preliminary injunction rests on State constitutional 
grounds, the U.S. Supreme Court having previously upheld the statute 
against Federal Constitutional challenge See Lambert v. Wicklund, 520 
U.S. 242 (1997).
---------------------------------------------------------------------------
    Second, DOJ argues that S. 1645 may be constitutionally 
problematic where the home State's requirements run only 
against physicians performing abortions within the State who 
are charged with giving the requisite notice or securing the 
requisite consent. In such an instance, DOJ argues, ``it would 
not be at all clear how a minor seeking an out-of-State 
abortion could satisfy the consent portion of such a home-State 
law.'' 91 The example DOJ gives is South Carolina's 
parental involvement law, which requires the patient to provide 
proof of consent to one of these physicians. This argument, 
however, does not take sufficient account of the language of 
the substitute, which was changed to address precisely these 
kinds of problems.92 Unlike the bill as originally 
introduced, the Committee-approved substitute does not require 
the State law requirements themselves to have been met before 
the abortion may be performed. Rather, it requires only 
``parental consent or notification, or judicial authorization * 
* * that would have been required'' by the home State 
law.93 Hence, no violation of S. 1645 would occur if 
the minor provides the same proof of consent that she would 
have been required to give a South Carolina physician to an 
out-of-State abortion provider.94 The Committee-
approved substitute also includes an affirmative defense 
excusing a defendant who can show that he or she ``reasonably 
believed, based on information obtained directly from a parent 
of [the minor] or other compelling facts,'' the requisite 
consent, notification, or judicial authorization was given, 
which provides an additional margin of safety protecting the 
defendant from liability in the case of any purely technical 
defects in the form of the consent or notice given.
---------------------------------------------------------------------------
    \91\ Letter of Acting Assistant Attorney General Sutin to Senator 
Leahy, July 8, 1998, pp. 6-7 and n.7.
    \92\ DOJ does obliquely acknowledge that the language in the 
substitute may have cured this problem. DOJ's letter to Chairman Hyde 
concerning the House bill as it had been reported by the Subcommittee 
on the Constitution, which did not contain the language changes made by 
the substitute, noted that ``It therefore would not be at all clear how 
a minor seeking an out-of-state abortion could satisfy even the consent 
portion of such a home-state law in a manner that would permit a 
`transporter' of that minor to avoid criminal liability under proposed 
Sec. 2401(a).'' Letter of Acting Assistant Attorney General Sutin to 
The Honorable Henry Hyde (June 24, 1998). DOJ's letter to Senator Leahy 
qualifies this statement, including the same sentence, but leading off 
with the clause ``Thus, to the extent that proposed Sec. 2401(a) is 
intended to require literal compliance with the home state's law, it 
would not be at all clear etc.'' Letter of Acting Assistant Attorney 
General Sutin to The Honorable Patrick Leahy (July 8, 1998). (Emphasis 
added.)
    \93\ S. 1645, sec. 2, proposed 18 U.S.C. 2401(a)(2).
    \94\ In fact, because South Carolina allows consent to be given by 
persons other than those defined as parents under S. 1645, in its 
current form its law would not be a ``law requiring parental 
involvement'' as that term is used in S. 1645, see proposed 18 U.S.C. 
2401(e) (e) and (2), and hence could not form the basis for action 
under S. 1645. Nevertheless, there may be other State laws that do meet 
S. 1645's definition of a ``law requiring parental involvement'' that 
present similar issues, so the point seems worth addressing.
    Even if a State law could be found that was picked up by S. 1645 
and where, because of some peculiarity in its operation, the consent or 
notice it would have required if the abortion were performed in-State 
could not be given if the abortion were performed out-of-State, and for 
some reason no form of consent, notice, or judicial authorization could 
be given sufficient to satisfy the affirmative defense, the same 
counterargument as the one made in the preceding paragraph would apply 
in this instance as well: The minor would still have the 
constitutionally sufficient option of having the abortion performed in-
State.
---------------------------------------------------------------------------
    Finally, DOJ hypothesizes that if a minor went out-of-State 
for an abortion and the State she went to also had a parental 
involvement law, S. 1645 might create strong pressures to 
satisfy two such laws, which, it argues, would be an undue 
burden. This result, however, could obtain even without S. 
1645, depending on what view the home State had of the 
extraterritorial application of its statute. Moreover, once 
again, so long as the option of having the abortion in her home 
State was constitutionally adequate, as it would have to be in 
order for S. 1645 to make failure to comply with that home 
State's requirements the basis for Federal action, 
noconstitutional problem would appear to be presented.

                    4. S. 1645's Intent Requirement

    Finally, a few brief words are in order about S. 1645's 
intent requirement. In order to violate S. 1645, a person must 
knowingly transport the minor across State lines with the 
intent that she obtain an abortion. The Department of Justice 
and others have suggested that more should be required, because 
people cannot reasonably be expected to know the fine points of 
State parental involvement laws, and therefore may violate S. 
1645 by inadvertence. In fact, however, somebody who is not a 
child's parent and takes her across State lines in order for 
her to get an abortion without her parents' knowledge is not 
doing something so plainly consistent with ordinary standards 
of morality that he or she should expect the law to have 
nothing to say about it. To the contrary, he or she is doing 
something that most people would think is wrong. Therefore, 
outlawing this, like outlawing other conduct inconsistent with 
ordinary moral standards, does not warrant inclusion of a 
special mens rea requirement of the type that Congress uses 
where it is dealing with a highly technical regulatory scheme 
that an ordinary citizen cannot be expected to 
know.95 Rather, this is the ordinary case in which 
Congress may legitimately rely on ``the background presumption 
that every citizen knows the law.'' 96
---------------------------------------------------------------------------
    \95\ Cf. Bryan v. United States, 118 S.Ct. 1139, 1998 U.S. Lexis 
4011, 20 n.18, quoting Cheek v. United States, 498 U.S. 192, 199-200 
(1991):

        The proliferation of statutes and regulations has 
      sometimes made it difficult for the average citizen to know 
      and comprehend the extent of the duties and obligations 
      imposed by the tax laws. Congress has accordingly softened 
      the impact of the common-law presumption by making specific 
      intent to violate the law an element of certain Federal 
      criminal tax offenses. Thus, The Court almost 60 years ago 
      interpreted the statutory term ``willfully'' as used in the 
      Federal criminal tax statutes as carving out an exception 
      to the traditional rule [that every person is presumed to 
      know the law]. This special treatment of criminal tax 
---------------------------------------------------------------------------
      offenses is largely due to the complexity of the tax laws.

    \96\ See Bryan v. United States, 1998 U.S. Lexis 4011, 17.
---------------------------------------------------------------------------
    The Committee-adopted substitute version of S. 1645 does 
account for the possibility of reasonable good faith violations 
of State laws by providing for an affirmative defense if the 
person taking the minor across State lines reasonably believed, 
based on information he or she obtained directly from the 
minor's parent or other compelling facts, that consent, notice, 
or judicial authorization sufficient that it would have 
satisfied the State law, had been given. This provision strikes 
a reasonable balance by preventing anyone from being in 
jeopardy for technical defects in the consent, notice, or 
judicial authorization, without allowing the person to avoid 
liability simply by claiming that he or she was relying on the 
minor's assurance that the parental involvement requirement had 
been satisfied.97
---------------------------------------------------------------------------
     \97\ The rationale for rejecting reliance on the minor's assertion 
is similar to the longstanding general rejection, albeit with 
exceptions in some jurisdictions, of the defense to statutory rape 
based on a reasonable mistake as to the age of the complainant. See. 
e.g., State v. Ruhl, 8 Iowa 447 (1859); Beckham v. Nacke, 56 Mo. 546 
(1874); State v. Newton, 44 Iowa 45 (1876); Lawrence v. Commonwealth, 
30 Gratt. 845 (1878); State v. Griffith, 67 mo. 287 (1878); Heath v. 
State, 173 Ind. 296, 90 N.E. 310 (1910), State v. Wade, 224 N.C. 760, 
32 S.E.2d 314 (1944); Commonwealth v. Sarricks, 161 Pa. Super 577, 56 
A.2d 323 (1948); State v. Superior Court of Pima County, 104 Arz. 440, 
454 P.2d 982 (1969); Nelson v. Moriarty, 484 F.2d 1034 (1st cir. 1973); 
People v. Cash, 419 Mich. 230, 351 N.W.2d 822 (1984); State v. 
Stiffler, 117 Idaho 405, 788 P.2d 220 (1988), contra, see, e.g., People 
v. Hernandez, 61 Cal. 2d 519, 393 P.2d 673, 39 Cal. Rptr. 361 (1964).
---------------------------------------------------------------------------

                             Policy issues

    Apart from the constitutional concerns they raise, critics 
of S. 1645 make two interrelated policy objections. First, this 
legislation places close family members trying to help minors 
who can't tell their parents at risk of prosecution. Second, 
critics argue, the effect will be to further isolate these 
minors, who, rather than turning to these other family members, 
will either seek an illegal abortion or pursue one across State 
lines, but entirely on their own.
    These arguments, however, ignore three realities. First, as 
explained in the opening portion of this report, the vast 
majority of nonparents who accompany minors to get abortions 
are not relatives. Rather, they tend to be the person who 
impregnated the minor and people associated with that person. 
Second, many minors who resist telling their parents about 
their pregnancy do so not because they face serious risks of 
abuse as a consequence of telling or because the pregnancy was 
a result of incest or for other reasons of this sort. Rather, 
as Dr. Bruce Lucero, a pro-choice physician who performed 
45,000 abortions in Alabama explained in a column in the New 
York Times, ``In almost all cases, the only reason that a teen-
age girl doesn't want to tell her parents about her pregnancy 
is that she feels ashamed and doesn't want to let her parents 
down.'' 98 In these kinds of cases, the best help 
adults close to the teen-age girl, be they relatives or others, 
can give is not to go along with the teenager's desire for 
concealment by bringing her across State lines, but rather to 
encourage her to talk to her parents. As Dr. Lucero continued,
---------------------------------------------------------------------------
    \98\ Dr. Bruce Lucero, ``Parental Guidance, Needed,'' N.Y. Times, 
sec. 4, p. 17 (July 12, 1998).

        [P]arents are usually the ones who can best help their 
        teen-ager consider her options. And whatever the girl's 
        decision, parents can provide the necessary emotional 
        support and financial assistance. Even in a 
        conservative state like Alabama, I found that parents 
        were almost always supportive.
          If a teen-ager seeks an abortion out of state, 
        however, things become infinitely more complicated. 
        Instead of telling her parents, she may delay her 
        abortion and try to scrape together enough money--
        usually $150 to $300--herself. As a result, she often 
        waits too long and then has to turn to her parents for 
        help to pay for a more expensive and riskier second-
        trimester abortion.
          Also, patients who receive abortions at out-of-state 
        clinics frequently do not return for follow-up care, 
        which can lead to dangerous complications. And a teen-
        ager who has an abortion across state lines without her 
        parents' knowledge is even more unlikely to tell them 
        that she is having complications.99
---------------------------------------------------------------------------
    \99\ Id.

    Finally, where there is a real problem with parental 
involvement, as Dr. Lucero also pointed out ``[i]n cases where 
teen-agers can't tell their parents--because of abuse, for 
instance--parental notification laws allow teen-agers to 
petition a judge for a waiver.'' 100 The best help a 
loving adult relative can give a minor in such a case is to 
assist her in obtaining such a waiver.
---------------------------------------------------------------------------
    \100\ Id.
---------------------------------------------------------------------------
    Critics of parental involvement statutes argue that 
judicial bypasses are too complex and subject to the whim of 
individual judges' views on abortion. ``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.'' 101 
The reality, however, is that these proceedings are 
simple,102 and that the only empirical studies that 
have been done suggest that applications for bypass are 
overwhelmingly granted.
---------------------------------------------------------------------------
    \101\ NARAL Publications--``Factsheet: S. 1645 is a Threat to Young 
Women's Health,'' (1998).
    \102\ See Orr v. Knowles, 337 N.W.2d 699 at 706 (Neb. 1983).
---------------------------------------------------------------------------
    A survey of Massachusetts cases filed between 1981 and 1983 
found that every minor who sought judicial authorization to 
bypass parental consent received it.103 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 1985.104 The average 
hearing lasted only 12.12 minutes, and ``more than 92 percent 
of the hearings [were] less than or equal to 20 
minutes.''105 Similar results obtained in Minnesota, 
where, based upon a review of bypass petitions filed from 
August 1, 1981, to March 1, 1986, a Federal trial court 
determined that of the 3,573 bypass petitions filed, 6 were 
withdrawn, 9 were denied, and 3,558 were granted.106 
Likewise, early returns suggest similar ease in obtaining 
judicial approval in Virginia, according to a recent report on 
the newly enacted Virginia parental notification 
statute.107 Out of 18 requests for judicial bypass, 
``all but one of the requests were granted eventually.'' 
108
---------------------------------------------------------------------------
    \103\ 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).
    \104\ Susanne Yates and Anita J. Pliner, ``Judging Maturity in the 
Courts: The Massachusetts Consent Statute,'' 78 Am. J. Pub. Health 646, 
647 (1998).
    \105\ Id. at 648.
    \106\ Hodgson v. Minnesota, 648 F. Supp. 756 at 765 (D. Minn. 
1986).
    \107\ Ellen Nakashima, ``Fewer Teens Receiving Abortion in 
Virginia: Notification Law to Get Court Test,'' Washington Post (Mar. 
3, 1998).
    \108\ Id.
---------------------------------------------------------------------------
    Finally, it is worth noting that the only instances where 
close relatives will be in any serious danger of being pursued 
by Federal authorities under S. 1645 will be those in which at 
least the parents are encouraging the Federal authorities to 
act. No prosecutor would expect a jury to convict a relative in 
the face of testimony by parents seeking to exonerate the 
relative, and therefore no prosecution would be brought under 
these circumstances. 

                       IV. VOTE OF THE COMMITTEE

    The Senate Judiciary Committee, with a quorum present, met 
on Thursday, July 9, at 9 a.m. and on Thursday, July 16, 1998, 
at 9:30 a.m. to mark up S. 1645. The following votes occurred 
on the bill and amendments proposed thereto:
    (1) Senator Abraham offered a substitute amendment, which 
was agreed to by a unanimous voice vote.
    (2) Senator Kennedy offered an amendment to require the 
Attorney General to certify as a precondition of Federal 
prosecution that (A) the appropriate State court did not have 
jurisdiction or refused to assume jurisdiction with respect to 
the conduct sought to be prosecuted and (B) Federal prosecution 
was necessary and in the public interest. The amendment was not 
agreed to by a rollcall vote of 7 yeas and 9 nays:
        YEAS                          NAYS
Leahy                               Thurmond (by proxy)
Kennedy                             Grassley
Kohl (by proxy)                     Thompson
Feinstein                           Kyl
Feingold (by proxy)                 DeWine
Durbin                              Ashcroft
Torricelli (by proxy)               Abraham
                                    Sessions
                                    Hatch

    (3) Senator Feinstein offered an amendment to exempt any 
adult family member of the minor from the prohibitions of the 
act. The amendment was not agreed to by a rollcall vote of 7 
yeas and 9 nays:
        YEAS                          NAYS
Leahy                               Thurmond (by proxy)
Kennedy (by proxy)                  Grassley (by proxy)
Kohl (by proxy)                     Thompson
Feinstein                           Kyl
Feingold                            DeWine
Durbin                              Ashcroft (by proxy)
Torricelli (by proxy)               Abraham
                                    Sessions
                                    Hatch

    (4) The Committee then voted on final passage to report the 
bill, as amended, favorably by a rollcall vote of 10 yeas to 6 
nays:
        YEAS                          NAYS
Thurmond (by proxy)                 Leahy
Grassley (by proxy)                 Kennedy (by proxy)
Thompson                            Feinstein
Kyl                                 Feingold
DeWine                              Durbin
Ashcroft (by proxy)                 Torricelli
Abraham
Sessions
Kohl (by proxy)
Hatch

                     V. SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

    This section states that the short title of this bill is 
the ``Child Custody Protection Act''.

Section 2. Transportation of minors to avoid certain laws relating to 
        abortion

    Section 2(a) amends title 18 of the United States Code by 
inserting after chapter 117 a proposed new chapter 117A 
entitled--``Transportation of minors to avoid certain laws 
relating to abortion,'' within which would be included a new 
section 2401 on this subject.
    Subsection (a) of proposed section 2401 outlaws the knowing 
transportation across a State line of a person under 18 years 
of age with the intent that she obtain an abortion, in 
abridgment of a parent's right of involvement according to 
State law. This subsection requires only knowledge by the 
defendant that he or she was transporting the person across 
State lines with the intent that she obtain an abortion. It 
does not require that the transporter know the requirements of 
the home State law, know that they have not been complied with, 
or indeed know anything about the existence of the State law. 
By the same token, it does not require that the defendant know 
that his or her actions violate Federal law, or indeed know 
anything about the Federal law. A reasonable belief that 
parental notice or consent, or judicial authorization, has been 
given, is an affirmative defense whose terms are set out in 
subsection (c).
    Subsection (a), paragraph (1), imposes a maximum of 1 year 
imprisonment or a fine, or both.
    Subsection (a), paragraph (2) specifies the criteria for a 
violation of the parental right under this statute as follows: 
an abortion must be performed on a minor in a State other than 
the minor's residence and without the parental consent or 
notification, or the judicial authorization, that would have 
been required had the abortion been performed in the minor's 
State 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. This subsection is not intended to preempt any other 
exceptions that a State parental involvement law that meets the 
definitions set out in subsection (e)(1) and (e)(2) may 
recognize.
    Subsection (b), paragraph (2) clarifies that neither the 
minor being transported nor her parents may be prosecuted or 
sued for a violation of this bill.
    Subsection (c) provides an affirmative defense to 
prosecution or civil action based on violation of the act where 
the defendant reasonably believed, based on information 
obtained directly from the girl's parent or other compelling 
facts, that the requirements of the girl's State of residence 
regarding parental involvement or judicial authorization in 
abortions had been satisfied. A minor's own assertion to a 
defendant that her parents knew or had consented would not, by 
itself, constitute sufficient basis to make out this 
affirmative defense.
    Subsection (d) establishes a civil cause of action for a 
parent who suffers legal harm from a violation of subsection 
(a).
    Subsection (e) sets forth definitions of certain terms in 
this bill.
    Subsection (e)(1)(A) defines ``a law requiring parental 
involvement in a minor's abortion decision'' to be a law 
requiring either ``the notification to, or consent of, a parent 
of that minor or proceedings in a State court.''
    Subsection (e)(1)(B) stipulates that a law conforming to 
the definition in (e)(1)(A) cannot provide notification to or 
consent of any person or entity other than a ``parent'' as 
defined in the subsequent section.
    Subsection (e)(2) defines ``parent'' to mean a parent or 
guardian, or a legal custodian, or a person standing in loco 
parentis (if that person has ``care and control'' of the minor 
and is a person with whom the minor ``regularly resides'') and 
who is designated by the applicable State parental involvement 
law as the person to whom notification, or from whom consent, 
is required. In this context, a person in loco parentis has the 
meaning it has at common law: a person who effectively 
functions as a child's guardian, but without the legal 
formalities of guardianship having been met. It would not 
include individuals who are not truly exercising the 
responsibilities of parents, such as an adult boyfriend with 
whom the minor may be living.
    Subsection (e)(3) defines ``minor'' to mean a person not 
older than the maximum age requiring parental notification or 
consent, or proceedings in a State court, under the parental 
involvement law of the State, where the minor resides.
    Subsection (e)(4) defines ``State'' to include the District 
of Columbia ``and any commonwealth, possession, or other 
territory of the United States.''
    Section 2(b) is a clerical amendment to insert the new 
chapter in the table of chapters for part I of title 18.

                           VI. COST ESTIMATE

               congressional budget office cost estimate

S. 1645--Child Custody Protection Act

    CBO estimates that implementing S. 1645 would not result in 
any significant cost to the federal government. Because 
enactment of S. 1645 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. S. 1645 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments.
    S. 1645 would make it a federal crime to transport a minor 
across state lines, under certain circumstances, to obtain an 
abortion without parental notification. 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 any increase 
in federal costs for law enforcement, court proceedings, or 
prison operations would not be significant, however, because of 
the small number of cases likely to be involved. Any such 
additional costs would be subject to the availability of 
appropriated funds.
    Because those prosecuted and convicted under S. 1645 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 
receipts and direct spending would be negligible.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                    VII. REGULATORY IMPACT STATEMENT

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, it is hereby stated that the 
Committee finds that the bill will have no additional direct 
regulatory impact.

                          VIII. MINORITY VIEWS

                            i. introduction

    Proponents of the so-called Child Custody Protection Act 
argue that this bill would help ``protect familial relations 
and safeguard children from health and safety risks.'' They are 
wrong.
    Far from promoting healthy family relationships, this bill 
would drive young women away from their families and greatly 
increase the dangers they face from an unwanted pregnancy. 
Moreover, this bill would undermine important federalism 
principles and violate the Constitution on multiple grounds. 
Finally, the bill poses significant enforcement problems that 
the sponsors fail to acknowledge, let alone address in any 
substantive fashion.
    This bill would add a new provision to the Federal criminal 
code making it a misdemeanor offense for any person to 
transport a minor across State lines with the intent to obtain 
an abortion and thereby, in fact, ``abridges the right of a 
parent'' under a parental notification or consent law of the 
State in which the minor resides. The bill contains no 
prohibition whatsoever against pregnant minors traveling across 
State lines to have an abortion, even if their purpose is to 
avoid telling their parents, as required by their home State 
law.
    While proponents indicate in the majority report that the 
bill's ``simple purpose'' is to provide ``assistance to States 
that have elected to adopt such requirements,'' only the most 
restrictive State parental consent or notification laws would 
garner such assistance. The bill carefully restricts the 
parental involvement laws that would enjoy the new Federal 
``assistance'' offered by the bill to those that require the 
consent of or notification to only parents or guardians of a 
pregnant minor. States that have chosen not to enact any 
parental involvement law or with such a law that allows for the 
involvement of any other family member, such as a grandparent, 
aunt or adult sibling, in the decision of a minor to obtain an 
abortion, are not entitled to any Federal ``assistance.''
    As discussed more fully below, the effect of this Federal 
preference for the parental involvement laws of a minority of 
States would be to extend their reach into the majority of the 
States, even though many have rejected such restrictive 
parental involvement laws. In short, this bill rejects sound 
federalism principles in favor of the parental involvement laws 
adopted and enforced in only 20 States.
    The proponents antipathy to involvement by anyone other 
than a parent in a minor's abortion decision is further 
demonstrated by the overbroad scope of the criminal and civil 
liability provisions. While the young woman herself and her 
parents are exempt from any liability, any grandmother, aunt, 
uncle, sibling, or other family member, family friend or 
counselor who helps a pregnant minor travel across State lines, 
or accompanies her, to get an abortion would be subject to 
Federal criminal prosecution and civil suit, if the minor has 
not complied with her home State parental involvement law.
    The consequence of such a law should be obvious: instead of 
increasing parental involvement in a minor's decision to 
terminate a pregnancy, S. 1645 would dramatically increase the 
isolation of young pregnant women and the dangers they face in 
obtaining an abortion. This bill would merely lead to more 
young women traveling alone to obtain abortions or seeking 
illegal ``back alley'' abortions locally, hardly a desirable 
policy result. Young pregnant women who seek the counsel and 
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--would subject those same 
close relatives to the risk of criminal prosecution and civil 
suit, if the young woman subsequently travels across State 
lines for an abortion.
    In addition to close family members, any other person to 
whom a young pregnant woman may turn for help, including her 
minor friends, health care providers, and counselors, could be 
dragged into court on criminal charges or in a civil suit. The 
criminal law's broad definitions of conspiracy, aiding and 
abetting, and accomplice liability, in conjunction with the 
bill's strict liability, could have the result of 
indiscriminately sweeping within the bill's criminal 
prohibition a number of unsuspecting persons having only 
peripheral involvement in a minor's abortion--even if they were 
unaware of the fact that a minor was crossing State lines to 
seek an abortion without complying with her home State's 
parental involvement law. As a result, the law could apply to 
clinic employees, bus drivers, and emergency medical personnel.
    Finally, because the bill imposes significant new burdens 
on a woman's right to choose and impinges on the right to 
travel and the privileges and immunities due under the 
Constitution to every citizen, it has been declared 
unconstitutional by constitutional scholars.
    No law--and certainly not this bill--will force a young 
pregnant woman to involve her parents in her abortion decision 
if she is determined to keep that fact secret from her parents. 
Indeed, according to the American Academy of Pediatrics, the 
percentages of minors who inform parents about their intent to 
have abortions are essentially the same in States with and 
without notification laws.1 Yet, while doing nothing 
to achieve the goal of protecting parental rights to be 
involved in the actions of their minor children, the bill would 
do damage to important federalism and constitutional 
principles, and isolate young pregnant women, force them to run 
away from home or drive them into the hands of strangers at a 
time of crisis.
---------------------------------------------------------------------------
    \1\ American Academy of Pediatrics, ``The Adolescent's Right to 
Confidential Care When Considering Abortion,'' 97 Pediatrics, 746, p. 
748 (May 1998).
---------------------------------------------------------------------------

              ii. the bill violates federalism principles

    States have historically maintained the dominant role in 
developing and implementing policies that affect family 
matters, such as marriage, divorce, child custody and policies 
on parental involvement in minors' abortion decisions. That is 
the nature of our Federal system, in which the States may, 
within the common bounds of our Constitution, resolve issues 
consistent with the particular mores or practices of the 
individual State.
    Only 20 States have adopted parental consent or 
notification laws that are currently enforced and meet the 
bill's definition of a ``law requiring parental involvement in 
a minor's abortion decision.'' 2 Thus, the majority 
of the States either have opted for no such law or are 
enforcing a law that allows for the involvement of adults other 
than a parent or guardian in the minor's abortion 
decision.3
---------------------------------------------------------------------------
    \2\ The 20 States with parental consent laws that are enforced and 
meet the definition in S. 1645 are: Alabama, Arkansas, Georgia, Idaho, 
Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, 
Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Pennsylvania, 
Rhode Island, South Dakota, Utah and Wyoming. National Abortion Rights 
Action League, ``Who Decides? A State-by-State Review of Abortion and 
Reproductive Rights,'' pp. 154-55 (1998) (hereafter ``NARAL Chart'').
    \3\ Ten States (Florida, Hawaii, New Hampshire, New Jersey, New 
York, Oklahoma, Oregon, Texas, Vermont and Washington) and the District 
of Columbia do not require any form of parental consent or notification 
in connection with a minor's abortion decision. NARAL Chart, supra. 
While a total of 40 States have adopted some form of parental consent 
or notification law, these laws in nine States (Alaska, Arizona, 
California, Colorado, Illinois, Montana, Nevada, New Mexico and 
Tennessee) have been declared unenforceable by a court or attorney 
general. Id. Of the remaining 31 States with enforced parental 
involvement laws, the following 11 States allow persons other than 
parents to be involved in a minor's abortion decision: Delaware, 
Illinois, Iowa, Maine, Maryland, North Carolina, Ohio, South Carolina, 
Virginia, West Virginia, and Wisconsin. Id.
---------------------------------------------------------------------------
    Proponents are just plain wrong when they say in the 
majority report that this bill ``does not supersede, override, 
or in any way alter existing State laws regarding minors' 
abortions.'' On the contrary, the direct consequence of this 
billwould be to federalize the reach of parental involvement 
laws in place in the minority of States in ways that override policies 
in place in the majority of the States in this country.
    The fact that the bill establishes no new parental consent 
or notification requirements is a mere figleaf which cannot 
hide its antifederalism effect. The bill would use Federal 
agency resources to enforce the minority of States' parental 
involvement laws wherever minors from those States travel and 
in connection with actions taken in other States. Furthermore, 
it would create a Federal crime as a mechanism for such Federal 
intervention.
    The 20-State parental involvement statutes ``assisted'' by 
S. 1645 were not drafted with this extraterritorial application 
in mind. These statutes do not say that the parental 
involvement provisions hinge on residency but provide 
restrictions on abortions to be performed on minors within the 
State where the law applies. Nevertheless, even if these States 
have not contemplated and neither need nor want Federal 
intervention to enforce their parental involvement laws, this 
bill would federalize the reach of these laws wherever the 
pregnant minors of those States travel within the country.
    Moreover, even if a State does not enforce its own parental 
involvement law, due to a court injunction or determination of 
a State Attorney General, this bill may still make it a Federal 
crime to help a minor cross State lines for an abortion without 
complying with that unenforced or unenforceable State law. 
Despite the clear intention of the sponsors that S. 1645 not 
apply in those circumstances, the language of the bill is not 
clear on that issue.
    Make no mistake, despite the proponents' contention that 
this bill does not ``attempt to regulate any purely intrastate 
activities related to the procurement of abortion services,'' 
the effect of this bill would be to impose the parental consent 
policies in the minority of States on the residents of the 
majority of States. For example, Vermont has no parental 
consent or notification law, though a neighboring State--
Massachusetts--does. In the early 1980's, press reports 
indicated that a 2-percent increase in abortions in Vermont 
were attributable to minors from Massachusetts coming across 
the border to avoid telling their parents under that State's 
parental consent law.
    If this bill becomes law, Vermont health care providers 
could be put in the position of enforcing Massachusetts' 
parental involvement laws before any abortion procedures are 
performed on minors from Massachusetts; otherwise these health 
care providers run the risk of criminal or civil liability. In 
other words, when confronted with a nonresident pregnant minor, 
who may be from Massachusetts, a Vermont health care provider 
would not be able to perform procedures that are legal in 
Vermont and protected by the U.S. Constitution. Instead, that 
Vermont health care provider would be forced to import and 
enforce another State's law.
    Indeed, health care professionals share this concern. As 
Renee Jenkins, M.D., testified:

          I am concerned about the effect on and 
        responsibilities to the health care providers involved: 
        the doctor's responsibility when providing abortion 
        services to women of any age from out-of-state. * * * I 
        am very concerned that Congress may put health care 
        providers in the position where they must violate their 
        state's confidentiality statutes in order to meet the 
        obligations of a neighboring state.4
---------------------------------------------------------------------------
    \4\ See Hearing on S. 1645, ``The Child Custody Protection Act,'' 
before the Senate Committee on the Judiciary, 105th Cong., 2d sess., 
(May 20, 1998) (testimony of Renee Jenkins, M.D.) (hereafter ``S. 1645 
hearing'').

    Since it is not always easy to tell where a minor's 
``home'' State is, health care providers would end up bearing 
the burden, in terms of time, cost, and resources, of checking 
on the residency of every minor who comes to them for abortion 
services. This would be the only way to ensure that there are 
no nonresident minors among them who have not complied with 
their ``home state'' parental involvement laws. This is not the 
policy that the majority of States have chosen for the minors 
within their borders, yet the bill would force the laws and 
policies of the minority of States on them.
    Moreover, the Federal Government would be in the 
unfortunate position of prosecuting people differently, 
depending on the State in which that person has established 
residence. This disparate treatment would result from the non-
uniformity of State parental involvement laws. State statutes 
on parental involvement in a minor's abortion decision vary 
widely and, as noted, a number of States have no such 
requirement at all. Thus, under the bill, whether a person is 
subject to Federal prosecution would depend upon the vagaries 
of State law.
    Just because some in Congress may prefer the policies of 
one State over those in the majority of the States does not 
mean we should give those policies Federal enforcement 
authority across the Nation. Doing so sets a dangerous 
precedent.
    We should think about how this policy might impact 
additional settings. For example, some States, such as Vermont, 
allow the carrying of concealed weapons without a permit, while 
other States bar that practice. Should Congress authorize 
Federal intervention that would allow residents of those States 
to enjoy the privilege of carrying their concealed weapons into 
States with more restrictive concealed weapons laws? It is the 
nature of our Federal system that when residents of a State 
travel to neighboring States and across the Nation, they must 
conform their behavior to the laws of the States they visit. 
When residents of each State are forced to carry with them only 
the laws of their own State, they may be advantaged or 
disadvantaged but one thing is clear: We will have turned our 
Federal system on its ear.
    One constitutional scholar explained:

          The statute appears to be unique, both in prohibiting 
        interstate travel for a lawful purpose, in working a 
        discrimination among citizens in the applicability of 
        local law based only on their state of residence, and 
        in requiring citizens to carry with them the legal 
        restrictions imposed by their State of residence 
        regardless of where they may travel within the 
        nation.5
---------------------------------------------------------------------------
    \5\ S. 1645 hearing, supra note 4, (submitted written testimony of 
Peter J. Rubin, visiting associate professor of law, Georgetown 
University Law Center, academic year 1998-99).

    Contrary to the proponents' bald assertion in the majority 
report that the bill ``presents a fairly classic case * * * for 
the federal government to intervene to assist States,'' the 
approach of this legislation is extraordinary. The examples 
cited by proponents as models for this legislation are wholly 
inapposite.
    First, proponents look to the Deadbeat Parents Punishment 
Act of 1998 as an example of analogous legislation. This new 
law punishes the travel in interstate or foreign commerce with 
the intent to evade a ``support obligation'' that has been set 
``under a court order or an order of an administrative 
process.'' This law authorizes Federal enforcement of a State's 
judicial orders and is fully consistent with the operation of 
the full faith and credit clause of the Constitution. By 
contrast, S. 1645 would authorize Federal intervention not to 
enforce a State judgment or State criminal charge, but to apply 
one State's law to conduct occurring legally within the borders 
of another State.
    The Deadbeat Parents Punishment Act reflects the unre- 
markable proposition that in circumstances where a person 
commits a crime in one State and flees to another, full faith 
and credit will be given to the laws of the original State so 
that the perpetrator may be returned there to face charges or 
punishment. This does not implicate the right of a citizen 
totravel. See Jones v. Helms, 452 U.S. 412, 419 (1981). By contrast, 
persons who would be subject to criminal liability under S. 1645 would 
have committed no crime or offense under any State law. The State 
parental involvement law being federally enforced would not have any 
applicability to an abortion lawfully performed on a minor in another 
State.
    Second, proponents cite choice of law principles that 
``frequently dictate the application of the law of a State 
different from the one where the conduct occurred.'' This is 
pure subterfuge since choice of law principles simply tell 
courts engaged in civil litigation what law to apply and, 
unlike S. 1645, do not purport to impose criminal sanctions on 
conduct that occurs outside a State's territory.6 
Generally, a State's criminal law does not apply 
extraterritorially, unless there are specific extraterritorial 
principles set out in the law, which accord with Federal 
constitutional principles.7
---------------------------------------------------------------------------
    \6\ Model Penal Code Sec. 1.03 note on jurisdiction and application 
of forum law (Official Draft and Explanatory Notes, 1962).
    \7\ See Restatement (Second) Conflict of Laws Sec. 2 (1962). See 
also, Steven Bradford, ``What Happens if Roe is Overruled? 
Extraterritorial Regulation of Abortion by the States.'' 35 Ariz. L. 
Rev. 87, 102 (1993).
---------------------------------------------------------------------------
    In a last gasp effort to show that S. 1645 is not unique, 
proponents cite Federal restrictions limiting transfers, 
purchases and sales of firearms by nonresidents to licensed 
importers, manufacturers, dealers or collectors and barring 
such transactions with unlicensed individuals. 18 U.S.C. 922(a) 
(5) and (9). These restrictions apply whether or not the 
transaction would be perfectly legal in the resident or 
nonresident's home State. Thus, even though the Federal 
firearms law discriminates between residents and nonresidents, 
unlike S. 1645, the home State law of a nonresident does not 
follow him or her into another State. In other words, 
regardless of what the home State law is, for purposes of the 
Federal firearms laws, the only salient matter is whether a 
person is a resident or nonresident. Indeed, the proponents 
admit as much, stating that an analogous law to the firearms 
restrictions ``would be a Federal law forbidding the 
performance of an abortion on a minor who resides out-of-
state.''
    In any event, whatever the scope of Federal power to 
discriminate between residents and nonresidents regarding the 
sale of guns within the context of a comprehensive licensing 
scheme designed to give States control over who may receive 
guns in a particular State, the Supreme Court has made clear 
that Congress and the States may not exercise such 
discrimination in the provision of medical services, including 
abortion services. Doe v. Bolton, 410 U.S. 179, 200 (1973) 
(Supreme Court invalidated provisions of Georgia law that 
required, inter alia, that a woman be a resident of the State 
to obtain an abortion).
    Finally, proponents look to the Mann Act, 18 U.S.C. 2421, 
as the paradigm for S. 1645, but this statute is very 
different. The Mann Act punishes the transportation of an 
individual across State lines ``with the intent that such 
individual engage in prostitution.'' The residency of the 
transported individual is irrelevant under the Mann Act. In 
addition, the Mann Act applies regardless of the particular 
policy on prostitution in that individual's home State or 
destination State. By contrast, S. 1645 is only triggered by 
the restrictive parental involvement law adopted and effective 
in a minority of only 20 States.
    Unfortunately, there is only one historical precedent in 
which the Federal Government applied its resources to enforce 
one State's policy, absent a State judgment or charge, against 
the residents of that State even when the resident found refuge 
in another State: fugitive slave laws dating to before the 
Civil War. No one in Congress would countenance such laws and 
all of us abhor slavery. Thankfully, the 13th amendment to the 
Constitution outlawed slavery and repealed article IV, section 
2, paragraph 3 of the Constitution, which authorized return of 
runaway slaves to their owners. That authority, and 
congressional implementing laws, such as the Fugitive Slave Act 
of 1793, enabled slave owners to reclaim slaves who managed to 
escape to ``free'' States or territories.
    In fact, the notorious Dred Scott 8 decision 
relied on this since-repealed constitutional provision to 
decide that slaves were not citizens of the United States 
entitled to the privileges and immunities granted to the white 
citizens of each State. This is why Dred Scott, born a slave, 
was deemed by the Supreme Court to continue to be a slave, even 
when he traveled to a ``free'' territory that prohibited 
slavery.
---------------------------------------------------------------------------
    \8\ Dred Scott v. Sandford, 60 U.S. 393, pp. 558-59 (1856).
---------------------------------------------------------------------------
    In 1858, Abraham Lincoln, who at the time was running for 
the U.S. Senate, criticized the Dred Scott decision, ``because 
it tends to nationalize slavery.'' Indeed, the dissenting 
opinion in Dred Scott, made plain that ``the principle laid 
down [in the majority opinion] will enable the people of a 
slave State to introduce slavery into a free State * * *; and 
by returning the slave to the State whence he was brought, by 
force or otherwise, the status of slavery attaches, and 
protects the rights of the master, and defies the sovereignty 
of the free State.''
    S. 1645 ``tends to nationalize'' parental involvement laws, 
even in those States that have declined to adopt such policies. 
Fugitive slave laws are no model to emulate with respect to our 
daughters and granddaughters. None of us, neither opponents or 
the proponents of this bill, would repeat the mistake of 
slavery. But beyond the question of slavery is the question of 
the role the Federal Government played before the Civil War in 
enforcing the laws of certain States. We should also not repeat 
that mistake.
    Finally, Harvard University Law School Prof. Laurence H. 
Tribe, after examining this bill in its entirety, has concluded 
unequivocally that ``it violates fundamental constitutional 
principles of federalism by seeking to force individuals who 
cross state lines to carry with them the legal regimes of their 
states of residence, no matter where they travel within the 
United States.'' 9 Specifically, this bill is 
impermissible under both the constitutional right to travel and 
the privileges and immunities clause of article IV, section 2 
of the Constitution. Professor Tribe explains that, ``the 
Constitution protects the right of each citizen of the United 
States to travel freely from state to state for the very 
purpose of taking advantage of the laws in those states that he 
or she prefers.'' 10
---------------------------------------------------------------------------
    \9\ Letter of Harvard Law School Prof. Laurence H. Tribe to members 
of the Senate Committee on the Judiciary, on the ``Constitutionality of 
S. 1645,'' p. 1. (June 23, 1998). (Hereafter ``Tribe Letter'').
    \10\ Id., p. 3.
---------------------------------------------------------------------------
    As a recent editorial critical of this bill stated: ``One 
of the central ideas of this country's structure is that the 
States will try different approaches to problems and people 
will vote with their feet in deciding which laws they like. 
That purpose is eviscerated if Congress criminalizes the 
transportation.''11
---------------------------------------------------------------------------
    \11\ The Washington Post, A-16, July 20, 1998.
---------------------------------------------------------------------------
    For this reason, Congress may not forbid people 
fromshopping out of State on Sunday, if their resident jurisdiction has 
blue laws mandating Sunday store closures; or from buying liquor for 
personal use out of State, if their resident jurisdiction is ``dry''; 
or from gambling at an out-of-State casino, if their resident State 
disallows gambling.
    Significantly, in support of their proposition that S. 1645 
does not violate federalism principles, proponents cite 
approvingly an article that instead raises ``at least five 
possible constitutional problems'' with the extraterritorial 
application of a State's law.12 Noting the 
``aggressive way in which some States are testing the 
boundaries of constitutionality in the abortion area,'' the 
author predicts that, ``an extraterritorial abortion statute 
may soon be presented to the Court.'' 13 In light of 
the fact that women and minors are ``seeking to travel out of 
states with restrictive abortion laws to states where abortions 
are more freely available,'' he concludes that:
---------------------------------------------------------------------------
    \12\ Bradford, supra note 7, p. 90.
    \13\ Id., p. 170.

          It is only a matter of time before a zealous 
        legislature tries to prevent state law from being 
        circumvented in this manner. If so the question of 
        extraterritoriality will add yet one more issue to the 
        abortion debate that has consumed this country for the 
        last twenty years.14 (Emphasis supplied.)
---------------------------------------------------------------------------
    \14\ Id.

    Unfortunately, the 105th Congress appears to be the 
``zealous legislature'' that this author predicted.

iii. the bill is dangerous for young women and undermines family values

A. The bill would isolate young pregnant women from their families

    S. 1645 is hostile to the well being of families and 
pregnant young women. Despite proponents' claims that S. 1645 
would help enforce a parent's right to counsel their daughters, 
the reality is that legislating complex family relationships is 
an impossible task.
    Under the legislation, pregnant young women 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--would put at risk of criminal and 
civil liability those to whom they turn for help, including 
their grandmothers, aunts, siblings or close friends. It should 
be obvious that threatening to throw into jail any grandmother 
or aunt or sibling who helps a young relative travel out-of-
State to obtain an abortion without telling her parents, as 
required by her home State law, does not foster closer familial 
relationships.
    Yet, Senator Feinstein's amendment to exempt adult family 
members, including a grandparent, stepparent, an aunt, or a 
sibling, was voted down.
    Even nonparent adults who are in fact raising a child would 
be subject to liability under the bill. 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.15
---------------------------------------------------------------------------
    \15\ S. 1645 (to be codified as 18 U.S.C. 2401(e)(2)).
---------------------------------------------------------------------------
    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.16
---------------------------------------------------------------------------
    \16\ Of the 31 States with enforced parental involvement laws, only 
a few expressly allow consent or notice to a grandparent. For example, 
Ohio allows notice to a grandparent, step-parent or adult sibling under 
certain circumstances. NARAL Chart, supra note 2.
---------------------------------------------------------------------------
    Studies have revealed 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.17 A 1996 report by the American Academy of 
Pediatrics, cites surveys showing that pregnant minors who do 
not involve a parent in their decision to have an abortion, 
often involve other responsible adults, including other 
relatives.18 In one survey, 91 percent of the young 
pregnant women interviewed consulted either a parent or 
``parent surrogate'' who was often a grandmother, aunt or other 
relative with whom they lived, even if that adult was not the 
legal guardian.19
---------------------------------------------------------------------------
    \17\ Stanley K. Henshaw and Kathryn Kost, ``Parental Involvement in 
Minors' Abortion Decisions,'' 24 Family Planning Perspectives 196, p. 
207 (Sept./Oct. 1992). (Hereafter ``Henshaw and Kost'').
    \18\ American Academy of Pediatrics, supra note 1, pp. 747-48 n. 19 
citing supra note 16, p.213.
    \19\ Id., n. 20, citing Zabin, et al., ``To Whom Do Inner-City 
Minors Talk to About Their Pregnancies?'' 24 Family Planning 
Perspectives 148, p. 173 (1992).
---------------------------------------------------------------------------
    Thus, the real result of this bill would be to discourage 
young pregnant women from turning to a trusted adult for advice 
and assistance. Threatening an investigation by the Federal 
Bureau of Investigation and Federal criminal prosecution of any 
loving family member who helps a young pregnant relative in 
distress to go out of State to obtain an abortion, would be a 
short-sighted and drastic mistake.
    In fact, the direct effect of the bill may be to force 
young pregnant women to travel alone across State lines to 
obtain an abortion. It is far preferable to permit a trusted 
friend or family member to accompany a woman and drive her home 
from this surgical procedure.20
---------------------------------------------------------------------------
    \20\ 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 percent 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,'' 26 1991 and 1992, 26 Family Planning Perspectives 
103 (May/June 1994).
---------------------------------------------------------------------------
    In addition, the bill may have the unintended consequence 
of encouraging young women in trouble to abandon their family, 
friends and homes, and force them into the hands of strangers 
or into isolation. If they are willing to travel across State 
lines to obtain an abortion, will this bill effectively force 
them to move their domicile across State lines to avoid 
engendering criminal and civil liability? If becoming a 
resident of another State will eviscerate the hold of a home 
States restrictive parental consent law, moving may be the only 
choice that passage of this bill may leave them. And, what of 
those young women who intend to move or those who tell others 
that they intend to move, does that defeat the claims the bill 
is intended to create to deter abortions?
    As much as we would prefer the active and supportive 
involvement of parents in their minor children's major 
decisions, it is not always realistic to expect children to 
seek parental involvement in the sensitive area of abortion. 
That is why the American Medical Association, the Society for 
Adolescent Medicine, the American Public Health Association, 
the American College of Obstetricians and Gynecologists, the 
American Academy of Pediatrics, and other health professional 
organizations have concluded that young pregnant minors should 
not be compelled or required to involve their parents in their 
decisions to obtain abortions, although they should be 
encouraged to discuss their pregnancies with their parents and 
other responsible adults.21
---------------------------------------------------------------------------
    \21\ American Academy of Pediatrics, supra note 1, p. 748.
---------------------------------------------------------------------------
    When a child is unwilling or unable to seek parental 
consent, the results can be tragic. The testimony of Bill and 
Mary Bell is telling in this regard.22
---------------------------------------------------------------------------
    \22\ Hearing on S. 1645, supra note 4, (Statement of Bill and Mary 
Bell). See also Position Paper from The National Abortion Federation, 
``The True Victims of S. 1645/S. 1645 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 the 
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 S. 1645, Vicki could have been federally prosecuted for 
helping her young niece cope with this pregnancy resulting from 
incest).
---------------------------------------------------------------------------
    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.
    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.23 Indeed, the American Academy of 
Pediatrics, Committee on Adolescence, recently reported that
---------------------------------------------------------------------------
    \23\ Henshaw and Kost, supra note 17, p. 196.

          Adolescents who are strongly opposed to informing 
        parents tend to predict family reactions accurately. 
        Involuntary parental notification can precipitate a 
        family crisis characterized by severe parental anger 
        and rejection of the minor and her partner. One third 
        of minors who do not inform parents already have 
        experienced family violence and fear it will recur. 
        Research on abusive and dysfunctional families shows 
        that violence is at its worst during a family member's 
        pregnancy and during the adolescence of the family's 
        children. Although parental involvement in minors 
        abortion decisions may be helpful in many cases, in 
        others it may be punitive, coercive, or 
---------------------------------------------------------------------------
        abusive.24

    \24\ American Academy of Pediatrics, supra note 1, p. 75.

    Furthermore, studies show that family violence is at its 
worst during a family member's pregnancy.25 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.26
---------------------------------------------------------------------------
    \25\ Ching-Tung Wang and Deborah Daro, ``Current Trends in Child 
Abuse Reporting and Fatalities: The Results of the 1996 Annual Fifty 
State Survey,'' National Committee for Prevention of Child Abuse, 
Chicago (1997); H. Amaro, et al., ``Violence During Pregnancy and 
Substance Abuse,'' 80 American Journal of Public Health 575, 575-579 
(1990).
    \26\ Margie Boule, ``An American Tragedy,'' Sunday Oregonian, Aug. 
27, 1989.
---------------------------------------------------------------------------
    The dangers to young pregnant women created by parental 
involvement laws would only be compounded by passage of S. 
1645. The net result of this bill would be to isolate these 
young women from the grandparents, aunts and close family 
members who could provide them with the guidance and care they 
need, if they refuse to turn to their parents. Contrary to the 
proponents' stated intent, this bill would end up weakening 
family communications and creating suspicion and mistrust among 
close family members. Most tragic of all is that this bill 
would hurt most the very children its sponsors purport to want 
to help.

B. Judicial bypass procedures are no panacea

    The proponents' response to the real safety risks posed by 
S. 1645 is to point to the State judicial bypass procedure. 
While this bypass procedure may have some theoretical value, in 
practice, a judicial bypass 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.27
---------------------------------------------------------------------------
    \27\ Patricia Donovan, ``Judging Teenagers: How Minors Fare When 
They Seek Court-Authorized Abortions,'' 15 Family Planning Perspectives 
259 (Nov./Dec. 1983).
---------------------------------------------------------------------------
    Likewise, the Supreme Court found that in Minnesota, many 
judges refuse even to hear bypass proceedings.28
---------------------------------------------------------------------------
    \28\ 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).
---------------------------------------------------------------------------
    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.29
---------------------------------------------------------------------------
    \29\ The courts in Massachusetts, Minnesota and Rhode Island are 
not open in the evenings or on weekends. See Donovan, infra note 58, p. 
259.

    Finally, many minors fear that the judicial bypass 
procedure lacks the necessary confidentiality. Indeed, pregnant 
minors seeking a judicial bypass are required ``to divulge 
intimate details of her private life to dozens of strangers 
(clerks, bailiffs, court reporters, witnesses, and others) to 
obtain a brief (10 minute) hearing before a judge who has no 
firsthand knowledge of her case and typically no training in 
counseling adolescents or developmental issues.'' 30 
The American Medical Association has noted that:
---------------------------------------------------------------------------
    \30\ American Academy of Pediatrics, supra note 1, p. 750.

        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 * * * 
        1973.31
---------------------------------------------------------------------------
    \31\ American Medical Association, Council on Ethical and Judicial 
Affairs, AMA, ``Mandatory Parental Consent to Abortion,'' 269 Journal 
of the American Medical Association (JAMA) 83 (Jan. 6, 1993).

    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.
    In short, the American Academy of Pediatrics has concluded 
that the judicial bypass procedure ``itself poses risks of 
medical and pschological harm. It is detrimental to medical 
well-being, because it causes further delays in access to 
medical treatment (from 4 days to several weeks), which 
increase the risk of complications from delayed or second-
trimester procedures. It is detrimental to emotional well-being 
because adolescents perceive the court proceedings as extremely 
burdensome, humiliating and stressful.'' 32 In 
short, the judicial bypass procedure is no panacea.
---------------------------------------------------------------------------
    \32\ American Academy of Pediatrics, supra note 1, p. 750.
---------------------------------------------------------------------------

C. This legislation is unnecessary and unneeded

    Given the dangers to young women from passage of this bill, 
the proponents have a heavy burden to justify the need for such 
legislation. They have utterly failed to meet that burden.
    The majority cites as a ``significant reason'' for the 
``evasion of a state's parental involvement law'', the ``effort 
to cover up statutory rape law violations.'' None among us 
condones either statutory rape or efforts by any adult to 
``cover up'' illegal sexual relations with a child. In fact, 
States can and should pursue such statutory rape charges 
aggressively as an important tool in protecting young children.
    To the extent that this bill would provide an additional 
misdemeanor charge against a man who faces--at a minimum--
felony charges of statutory rape, it is difficult to view this 
bill as much of an additional deterrent.
    Indeed, the majority cites the testimony of Joyce Farley, 
whose 13-year-old daughter was transported across State lines 
for an abortion by the stepmother of an 18-year-old boy, whom 
the Pennsylvania attorney general described as the person whom 
Farley's daughter had dated during the summer of 
1995.33 The stepmother, Rosa Hartford, drove 
Farley's daughter from Pennsylvania (which has a parental 
consent law) to an abortion clinic 60 miles away in New York 
(which has no parental consent law).
---------------------------------------------------------------------------
    \33\ S. 1645 Hearing, supra note 4 (testimony of Mike Fisher, 
Attorney General, Commonwealth of Pennsylvania) (1998).
---------------------------------------------------------------------------
    The stepson was subsequently convicted of statutory rape, 
and Hartford was convicted of ``interfering with the custody of 
a child'' and sentenced to 1 year's probation. Hartford's 
conviction was set aside and she has been awarded a new trial. 
Nevertheless, in this instance, Pennsylvania authorities were 
clearly able to vindicate the rights of Joyce Farley and 
prosecute Hartford for ``taking a 13 year old from her mother's 
custody and without her mother's knowledge or consent to 
undergo a serious medical procedure.'' 34 In fact, 
Hartford ``was subject to a penalty at least twice as long as 
the penalty provided for in this bill * * *'' 35
---------------------------------------------------------------------------
    \34\  Id.
    \35\ Answer by Mike Fisher, Attorney General, Commonwealth of 
Pennsylavania, to written question number 1(a) of Senator Patrick 
Leahy, Ranking Member, Committee on the Judiciary (June 5, 1998).
---------------------------------------------------------------------------
    While the proponents dedicate an entire section of the 
majority report to ``adult male predators and evasion of 
parental involvement laws'', they fail to state the obvious: 
namely, that State laws relating to statutory rape, sexual 
assault, kidnaping, interference with the custody of a child, 
and related offenses all carry ample felony penalties and are 
available to State and local law enforcement officers to 
investigate, charge and prosecute those persons who take 
advantage of young women sexually.
    The misdemeanor penalty provided in S. 1645 is not a tool 
that State and local law enforcement officials need to focus on 
``adult male predators,'' particularly in light of the 
significant enforcement problems detailed by the Department of 
Justice and summarized below. This purported justification for 
the bill is merely a subterfuge for its real purpose: to 
federalize the reach of the restrictive parental involvement 
laws adopted in the minority of States.

               iv. the scope of liability is overly broad

    Proponents of this bill often cite as examples of the need 
for this bill the actions of predatory individuals who force 
and coerce a minor into obtaining an abortion. However, the net 
cast by this bill is far broader and far more problematic.
    In fact, as originally introduced, this bill could have 
subjected parents to criminal prosecution for traveling across 
State lines, perhaps to the nearest abortion provider, with 
their daughter to obtain an abortion. Renee Jenkins, M.D., 
explained:

          Six States (AR, ID, MS, MS, ND, UT) require both 
        parents to consent or be notified about a minor's 
        abortion decision. Some do not allow an exception where 
        the parents do not live together anymore, because of 
        divorce, abandonment or domestic violence. Under S. 
        1645, a parent in one of these states would be 
        criminally liable for accompanying his/her daughter to 
        an out-of-state abortion provider without obtaining the 
        other parent's approval.36

    \36\ S. 1645 Hearing, supra note 4.

    After the hearing at which Dr. Jenkins testified, even the 
sponsors of the legislation acknowledged the over-broad reach 
of the criminal liability provisions in this bill, as 
originally crafted, and took steps with a substitute amendment, 
to exclude parents, but only parents, from the threat of 
criminal prosecution. Their effort does not go far enough, and 
the bill remains overbroad.
    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.'' 37
---------------------------------------------------------------------------
    \37\ S. 1645 (to be codified at 18 U.S.C. 2401(a)).
---------------------------------------------------------------------------
    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.38
---------------------------------------------------------------------------
    \38\ An amendment offered at full committee markup of S. 1645 by 
Rep. Melvin Watt (D-NC) to add an intent requirement was defeated on a 
party line vote.
---------------------------------------------------------------------------
    Anyone simply transporting a minor could be jailed for up 
to 1 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 in a 
formal parental involvement process could conceivably be sent 
to jail under this prohibition.
    Many young pregnant women may turn for help in dealing with 
the abortion decision to their best friends, who are also 
likely to be minors. In fact, Joyce Farley's daughter told, not 
only the man who impregnanted her, but also her teenage sister, 
Lisa Farley, and at least two of her friends that she was 
pregnant.39 Mike Fisher, the Pennsylvania attorney 
general, made clear that if Lisa Farley or her teenage friends 
had been the persons to travel with the pregnant daughter 
across State lines to get an abortion, they would have been 
subject to criminal liability under this bill. Mr. Fisher said, 
``The law would make no distinction for minors who violate the 
act.'' 40
---------------------------------------------------------------------------
    \39\ S. 1645 Hearing. Supra note 4.
    \40\ Answer by Attorney General Mike Fisher to written question 
number 1(c) of Senator Patrick Leahy, supra note 35.
---------------------------------------------------------------------------
    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.
    These concerns were highlighted in the Justice Department's 
views on S. 1645. The Department 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.41
---------------------------------------------------------------------------
    \41\ Letter from Acting Assitant Attorney General L. Anthony Sutin, 
to Senator Patrick Leahy, Ranking Member, Committee on the Judiciary 
(July 8, 1998), p.8 (citations omitted). (Hereafter ``Department of 
Justice letter'').
---------------------------------------------------------------------------
    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 * * 
*.'' 42
---------------------------------------------------------------------------
    \42\ 18 U.S.C. 2421.
---------------------------------------------------------------------------
    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. S. 1645 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.
    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.43 A nurse at a clinic providing 
directions to a minor or her driver may be liable 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 may be liable as an accessory after the 
fact. The pregnant minors sibling, who merely agrees to 
transport the minor across State lines without any knowledge or 
intent to evade the resident State's parental consent or 
notification laws, could be liable for violating this statute.
---------------------------------------------------------------------------
    \43\ 18 U.S.C. 2 (accessories); 3 (accessories after the fact); and 
371 (conspiracies). During full committee markup of S. 1645, 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 create a 
blanket Federal cause of action for parents who suffer ``legal 
harm'' as a result of their child being transported across 
State lines. This provision risks chilling 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 means that abortion providers could be subject to 
civil suit for performing an otherwise lawful abortion on an 
out-of-State minor, who failed to comply with her home State's 
parental involvement law. For example, a Vermont healthcare 
provider who performs an abortion lawful in Vermont on a minor 
from Massachusetts, Maine, or Rhode Island (which require some 
form of parental consent), could be sued by the minor's parent.
    This is why in a letter to Senate Judiciary Committee 
Ranking Member Senator Leahy, White House Chief of Staff 
Erskine Bowles stated that the civil liability provisions of S. 
1645 ``would provide an unintended basis for vexatious 
litigation against individuals and organizations.'' 
44
---------------------------------------------------------------------------
    \44\ Letter from Erskine B. Bowles, Chief of Staff to the President 
to Senator Patrick Leahy, Ranking Member, Committee on the Judiciary 
(July 8, 1998).
---------------------------------------------------------------------------
    Not only would the civil liability provision subject 
virtually everyone assisting a minor to lawsuits, it would 
subject any one with whom the minor comes in contact 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. Nothing 
would protect friends of the minor from being dragged into 
depositions to discuss what they know about a subject that 
should be private confidential.
    In addition, the bill also allows for civil actions between 
family members by authorizing lawsuits to be brought by any 
parent or legal guardian suffering ``legal harm'' against any 
person assisting a minor in obtaining an abortion across State 
lines. The legislation is so broad that even a father who 
committed rape or incest with his own daughter is permitted to 
bring a lawsuit seeking compensation under S. 1645.
    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 antichoice groups using this 
legislation to harass family planning clinics out of existence.

      v. the bill unconstitutionally burdens reproductive freedom

A. The constitutional framework

    On January 22, 1973, the Supreme Court issued its landmark 
ruling in Roe v. Wade 45 and ensured women the 
fundamental right to choose when to terminate a pregnancy. In 
succeeding years, the Supreme Court also issued rulings further 
defining the parameters of Roe, including decisions regarding a 
minor's right to obtain an abortion.
---------------------------------------------------------------------------
    \45\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
    The Court found a Missouri parental consent law requiring 
an unmarried woman under the age of 18 to obtain written 
consent from a parent, unconstitutional. In Planned Parenthood 
of Missouri v. Danforth 46, the Court said,
---------------------------------------------------------------------------
    \46\ 428 U.S. 52 (1976).

          We agree with appellants and with the courts whose 
        decisions have just been cited that the State may not 
        impose a blanket requiring the consent of a parent or 
        person in loco parentis as a condition for abortion of 
        an unmarried minor * * * It is difficult, however, to 
        conclude that providing a parent with absolute power to 
        overrule a determination, made by the physician and his 
        minor patient, to terminate the patient's pregnancy 
        will serve to strengthen the family unit. Neither is it 
        likely that such veto power will enhance parental 
        authority or control where the minor and the 
        nonconsenting parent are so fundamentally in conflict 
        and the very existence of the pregnancy already has 
        fractured the family structure. Any independent 
        interest the parent may have in the termination of the 
        minor daughter's pregnancy is no more weighty than the 
        right of privacy of the competent minor mature enough 
---------------------------------------------------------------------------
        to have become pregnant.47

    \47\ Id., p. 74.

    In Bellotti v. Baird,48 the plurality found that 
although minors, like adults, have a constitutionally protected 
right to choose, States may limit the freedom of minors to make 
important decisions when they lack the experience or maturity 
needed to avoid decisions that may be detrimental to them. 
Under the Bellotti standard, a State may require parental 
involvement only if, through a bypass procedure, a mature minor 
is given the opportunity to make the abortion decision for 
herself, and a minor not mature enough to decide for herself is 
provided an opportunity to show that an abortion would be in 
her best interests. In addition, the bypass alternative to 
mandatory parental consent or notice must be ``completed with 
anonymity and sufficient expedition to provide an effective 
opportunity for an abortion to be obtained.49
---------------------------------------------------------------------------
    \48\ 443 U.S. 622 (1979).
    \49\ Id., p. 644.
---------------------------------------------------------------------------
    The bottom line for the Bellotti Court is ``whether [a 
statute] provides for parental notice and consent in a manner 
that does not unduly burden the right to seek an abortion.'' 
50 For, as the Court stated,
---------------------------------------------------------------------------
    \50\ Id., p. 640.

          The pregnant minor's options are much different from 
        those facing a minor in other situations, such as 
        deciding whether to marry. A minor not permitted to 
        marry before the age of majority is required simply to 
        postpone her decision. A pregnant adolescent, however, 
        cannot preserve for long the possibility of aborting, 
        which effectively expires in a matter of weeks from the 
        onset of pregnancy * * * There are few situations in 
        which denying a minor the right to make an important 
        decision will have consequences so grave and 
---------------------------------------------------------------------------
        indelible.51

    \51\ Id., p. 642.

    The Court's rulings in Planned Parenthood v. Ashcroft 
52 and Hodgson v. Minnesota 53 affirm its 
earlier decisions.
---------------------------------------------------------------------------
    \52\ 462 U.S. 476 (1983).
    \53\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
    In 1992, the Court reaffirmed the essential holding in Roe 
and its view that the right to choose whether or not to 
terminate a pregnancy extends to minors. In Planned Parenthood 
of Southeastern Pennsylvania v. Casey,54 the Court 
said that a pregnant minor has the right ``to make the ultimate 
decision'' about her pregnancy without an undue burden being 
imposed upon her decision by State regulation. ``Regulations 
which do no more than create a structural mechanism by which * 
* * the parent or guardian of a minor may express profound 
respect for the life of the unborn are permitted,'' but only 
``if they are not a substantial obstacle to the woman's 
exercise of the right to choose.'' 55
---------------------------------------------------------------------------
    \54\ 505 U.S. 833 (1992).
    \55\ Id., p. 877.
---------------------------------------------------------------------------

B. The Child Custody Protection Act is Inconsistent with the Standard 
        of Review Articulated by the Supreme Court in Casey.

    The undue burden standard provides the Committee with a 
clear test to assess the constitutionality of the Child Custody 
Protection Act. As Professor Laurence Tribe wrote to the 
Committee,

          The Court's decision in Casey articulates a very 
        precise method for determining whether an abortion 
        regulation places a ``substantial obstacle'' in the 
        path of women who seek to exercise their right to 
        terminate a pregnancy. Under Casey, the facial validity 
        of an abortion regulation is to be measured by its 
        impact upon ``the group for whom the law is a 
        restriction, not the group for whom the law is 
        irrelevant.'' The Court thus set up an extremely 
        practical test for determining whether a regulation is 
        valid: If, ``in a large fraction of the cases'' of 
        those pregnant women ``who do not wish'' to comply with 
        the law, a regulation ``will operate as a substantial 
        obstacle to a woman's choice to undergo an abortion,'' 
        then that regulation is unconstitutional. 56
---------------------------------------------------------------------------
    \56\ Tribe Letter, supra note 9, p. 7.

    Using the Casey standard, the Child Custody Protection Act 
is unconstitutional. The standard requires that we determine 
whether or not the affect of the proposed legislation will act 
as a substantial obstacle to a significant proportion of the 
class of pregnant minors who do not want to comply with it. 
History and experience tell us that young women who--for a 
variety of reasons--do not wish to discuss their pregnancies 
with their parents, find the bypass option intimidating and 
seek the assistance of a caring relative or friend to obtain an 
abortion in another State, would find the Child Custody 
Protection Act to be a substantial obstacle.
    It is documented that 75 percent of women under 16 who have 
abortions tell at least one parent about their pregnancy. The 
Casey standard, however, requires the Committee to assess the 
proposed bill's impact on young women who feel that they cannot 
discuss their pregnancy or the option of abortion with their 
parents and wish to leave their State of residency to obtain an 
abortion. A young woman may make that decision for a variety of 
reasons.
    First, more than 3 million children a year report abuse or 
neglect. Most of them are abused by a parent or a close family 
relation. Often when a teenager cannot tell a parent about her 
pregnancy, it's because the parent is ill, or because the 
parent abuses drugs or alcohol, or because the disclosure would 
provoke abuse or violence. The American Medical Association has 
stated that,

          [I]t is reasonable to believe that some minors 
        justifiably fear that they would be treated violently 
        by one or both parents if they had to disclose their 
        pregnancy to their parents. Research on abusive and 
        dysfunctional families has shown that family violence 
        is at its worst during a family member's pregnancy * * 
        * If parental involvement were universally required, 
        some minors might suffer serious physical injury * * * 
        Parental involvement often precipitates a family 
        crisis, characterized by severe parental anger and 
        rejection of the minor.57

    \57\ American Medical Association, supra note 31, p. 82.

    Some young women may also decline to tell a parent because 
they fear disappointing them. Unfortunately, these decisions 
may become deadly. As noted above, Mary and Bill Bell described 
the unfortunate events that led their daughter Beckys' death 
from a ``back alley'' abortion. Becky had an illegal abortion 
rather than--her words--``hurt her parents.''
    Proponents of the Child Custody Protection Act argue that a 
young woman can turn to the constitutionally required by-pass 
process. But, this process is not always helpful or available 
to young women. Some young women cannot maneuver the legal 
procedures required or cannot attend hearings scheduled during 
school hours. Others do not initiate the process because they 
fear that the proceedings are not confidential or that they 
will be recognized by people at the courthouse. Some young 
women face judges who are vehemently antichoice and routinely 
deny petitions, although the Supreme Court has said that a 
minor must be given a bypass if she is mature or if an abortion 
is in her best interest. In some States, local judges refuse to 
hold hearings.
    For example, a 1983 report entitled, ``Judging Teenagers: 
How Minors Fare When They Seek Court-Authorized Abortions,'' 
documents the problems young women encounter when they seek a 
judicial bypass in Massachusetts, Minnesota, or Rhode Island. 
The author interviewed two-dozen judges, public defenders, 
private attorneys, guardians ad litem, and abortion providers 
and counselors and determined that although judicial bypass 
laws and procedures ``appear reasonable and workable on paper, 
in practice they constitute a serious, and in some cases 
insurmountable, barrier confronting minors who wish to obtain 
abortions.'' 58
---------------------------------------------------------------------------
    \58\ Donovan, Judging Teenagers: How Minors Fare When They Seek 
Court-Authorized Abortions, 15 Family Planning Perspectives 6 (1983).
---------------------------------------------------------------------------
    In Minnesota, for example, the judges in most counties 
refused--for moral or political reasons--to implement the law. 
As a result, many young women had to make a round trip of 500 
miles or more. For minors who could not make such a trip, the 
option of going to court was effectively lost. A number of 
judges in Massachusetts refused to handle abortion petitions. 
The report also stated that ``some of the judges who do handle 
these cases focus--inappropriately--on the morality of abortion 
or are insulting or rude to the minor and her attorney.'' 
59 The report also found that no courts in 
Massachusetts, Minnesota or Rhode Island were open in the 
evening or on weekends, times when minors could more easily be 
away from home.
---------------------------------------------------------------------------
    \59\ Id.
---------------------------------------------------------------------------
    Finally, many young women do not avail themselves of the 
bypass process because they do not want to reveal intimate 
details of their personal lives to strangers. Mary and Bill 
Bell told the Committee that Becky felt that she couldn't ask a 
judge for permission to have an abortion because, as Becky told 
a Planned Parenthood counselor, ``If I can't tell my mom and 
dad, how can I tell a judge who doesn't even know me?'' 
60
---------------------------------------------------------------------------
    \60\ Id.
---------------------------------------------------------------------------
    In these situations, young women often feel that they have 
two choices--cross State lines to obtain an abortion or, as the 
American Medical Association notes, ``[r]un away from home, 
obtain a `back alley' abortion, or resort to a self-induced 
abortion.'' The AMA goes on to note that ``[t]he desire to 
maintain secrecy has been one of the leading reasons for 
illegal abortion deaths since 1973.'' 61
---------------------------------------------------------------------------
    \61\ American Medical Association, supra note 31, p. 83.
---------------------------------------------------------------------------
    Given the evidence that young women, who do not wish to 
tell their parent about their pregnancy or believe that they 
can not navigate the judicial bypass process, view travel to 
another State--with the assistance of a relative or friend--as 
the only means to obtain a legal abortion, the Child Custody 
Protection Act is unconstitutional.
    Professor Tribe explains that the burden placed on this 
vulnerable group of young women by S. 1645, renders the bill 
unconstitutional. He states:

          S. 1645 operates only upon the narrower class of 
        pregnant minors who, by definition, would rather 
        undertake out-of-state travel to obtain an abortion 
        than face the judicial bypass process. This may reflect 
        some practical problems with the application of the 
        state's own bypass procedures, or it may reflect the 
        particular fears and sensitivities of this class of 
        pregnant minors. But the result, for constitutional 
        purposes, is the same either way: because a large 
        fraction of these young women would be deterred by S. 
        1645 from exercising their right to choose, the law 
        cannot stand.'' 62
---------------------------------------------------------------------------
    \62\ Tribe letter, supra note 9.

C. The Child Custody Protection Act fails to Meet the Hodgson Test.

    Young women would encounter substantial difficulties in 
States that do not provide mechanisms for fulfilling the 
mandated notice or consent requirements when an abortion is to 
be performed in another State. For those young women, the 
proposed legislation could eviscerate the fundamental right 
established in Roe. This is inconsistent with the Supreme 
Court's decision in Hodgson 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 explained:

          [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.63
---------------------------------------------------------------------------
    \63\ Department of Justice letter, supra note 31, p. 6.

    In addition, the legislation would appear to operate 
unconstitutionally by requiring a double consent requirement if 
both the minor's State of residence and the State in which the 
minor seeks to have the abortion performed have parental notice 
laws.
    The Department of Justice explains:

          [If the proposed legislation] were construed to 
        require satisfaction of the parental involvement 
        requirements of the minor's state of 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.64
---------------------------------------------------------------------------
    \64\ Id., p.7.

    In sum, in the views of the constitutional scholars to have 
considered this issue, S. 1645 ``has the unconstitutional 
purpose and would have the unconstitutional effect of placing a 
``substantial obstacle'' in the path of the pregnant 
adolescents its affects seeking to exercise their right to 
choose to terminate a pregnancy.'' 65
---------------------------------------------------------------------------
    \65\ S. 1645 Hearing, supra note 4 (submitted testimony of 
Professor Rubin); Tribe letter, supra note 9.
---------------------------------------------------------------------------

          VI. THE BILL RAISES SIGNIFICANT ENFORCEMENT PROBLEMS

    S. 1645 will present a number of complex, if not 
intractable, law enforcement problems. The Department of 
Justice has concluded that this bill would ``present a myriad 
of serious enforcement problems'' that would make violations of 
the bill ``notably difficult to investigate and to prosecute, 
and would involve significant, and largely unnecessary, outlays 
of federal resources.''
    Specifically, because of the multijurisdictional nature of 
the violation at issue, and the fact that the violative conduct 
is not illegal in either the home State of the pregnant minor 
or the State to which she is being transported for the 
abortion, the full burden of investigating these violations 
will fall to the FBI. As the Department notes, ``It would be 
difficult for local law enforcement to work in tandem with 
federal authorities because there is no local crime over which 
they would have jurisdiction.'' \66\ Practically speaking, 
federal agents will be put in the position of ``State Border 
Patrols.''
---------------------------------------------------------------------------
    \66\ Department of Justice letter, supra note 31, p. 10.
---------------------------------------------------------------------------
    Furthermore, given the studies that show that pregnant 
minors often turn to relatives and friends for help, the 
Department notes that the principal targets of the bill are 
likely to be defendants who would be ``highly sympathetic.'' 
67 Indeed, ``a relatively high percentage of the 
putative defendants under this statute may be minors, which 
raises special concerns in the federal system.'' 68
---------------------------------------------------------------------------
    \67\ Id.
    \68\ Id.
---------------------------------------------------------------------------
    The witnesses to the conduct criminalized by the bill would 
also raise significant problems. They may be close relatives or 
friends of the pregnant minor, who may have no interest in and 
downright hostility to participating in or helping with a 
Federal investigation. Indeed, the Department anticipates that 
the minor ``is likely to be a hostile and uncooperative 
witness.'' 69
---------------------------------------------------------------------------
    \69\ Id.
---------------------------------------------------------------------------
    Witnesses or targets would likely include medical 
personnel, who will raise particular privileges, such as the 
physician-patient privilege, or medical privacy issues that may 
complicate litigation. As the Department explains, ``state 
privacy laws concerning medical records and the existence of 
certain state privileges will slow the investigation of these 
crimes.'' 70
---------------------------------------------------------------------------
    \70\ Id.
---------------------------------------------------------------------------
    Given the hostility of many of the potential witnesses to 
the conduct criminalized by the bill, Federal authorities will 
be forced to turn to documentary evidence, such as medical 
records, to help prove the case. Even enforcing subpoenas for 
documentary evidence would, according to the Department, ``take 
tremendous time and effort and provoke tension between the 
state and federal systems.'' 71
---------------------------------------------------------------------------
    \71\ Id.
---------------------------------------------------------------------------
    The significant enforcement concerns raised by the 
Department make clear that the investigation and prosecution of 
the new crime created by this bill would require enormous 
effort, time and resources. Given the often sympathetic 
defendants and hostile witnesses, there is certainly no firm 
prospect of success.
    Despite these difficulties, the Department anticipates that 
``there is the distinct possibility that the FBI would be 
required to evaluate unusually high numbers of complaints.'' 
72 Straining scarce Federal resources with this new 
responsibility may end up diverting attention and needed 
resources from other law enforcement priorities. This is cause 
for significant concern to which insufficient attention has 
been by the proponents of this legislation.
---------------------------------------------------------------------------
    \72\ Id.
---------------------------------------------------------------------------

                            VII. CONCLUSION

    This legislation does nothing to make abortion less 
necessary, only more dangerous. S. 1645 would not accomplish 
its purported purposes of encouraging parental involvement and 
takes the wrong approach to the problem of teenage pregnancy. 
It does nothing to increase adolescent 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 should they do 
so. 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, stepparents and 
doctors in jail for the crime of providing responsible 
assistance to young women in need.
    Because S. 1645 is a burdensome attack on the rights and 
well-being of young women, we cannot support this legislation.

                                   Patrick J. Leahy.
                                   Edward M. Kennedy.
                                   Dianne Feinstein.
                                   Russell D. Feingold.
                                   Richard J. Durbin.
                                   Robert G. Torricelli.

                      IX. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1645, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


                TITLE 18--CRIMES AND CRIMINAL PROCEDURE

                            PART I.--CRIMES

        Chapter                                                     Sec.
1General provisions.............................................

           *       *       *       *       *       *       *

117. Transportation for illegal sexual activity and related crimes  2421
117A. Transportation of minors to avoid certain laws relating to 
2401        abortion............................................

           *       *       *       *       *       *       *


  CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED 
CRIMES

           *       *       *       *       *       *       *


Sec. 2424. Filing factual statement about alien individual

    (a) Whoever * * *

           *       *       *       *       *       *       *

    (b) In any prosecution brought under this section, if it 
appears that any such statement required is not on file in the 
office of the Commissioner of Immigration and Naturalization, 
the person whose duty it is to file such statement shall be 
presumed to have failed to file said statement, unless such 
person or persons shall prove otherwise. No person shall be 
excused from furnishing the statement, as required by this 
section, on the ground or for the reason that the statement so 
required by that person, or the information therein contained, 
might tend to criminate that person or subject that person to a 
penalty or forfeiture, but no information contained in the 
statement or any evidence which is directly or indirectly 
derived from such information may be used against any person 
making such statement in any criminal case, except a 
prosecution for perjury, giving a false statement or otherwise 
failing to comply with this section.

 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 a 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 
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) proceeding 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 regulatory 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.

                                
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