[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.
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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.
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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.
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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.
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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).
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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.