[House Report 106-204]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-204
======================================================================
CHILD CUSTODY PROTECTION ACT
_______
June 25, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady of Florida, from the Committee on the Judiciary, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1218]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1218) to amend title 18, United States Code, to
prohibit taking minors across State lines in circumvention of
laws requiring the involvement of parents in abortion
decisions, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
TABLE OF CONTENTS
Page
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 2
Hearings................................................... 18
Committee Consideration.................................... 18
Vote of the Committee...................................... 18
Committee Oversight Findings............................... 22
Committee on Government Reform Findings.................... 22
New Budget Authority and Tax Expenditures.................. 22
Congressional Budget Office Cost Estimate.................. 22
Constitutional Authority Statement......................... 23
Section-by-Section Analysis................................ 24
Changes in Existing Law Made by the Bill, as Reported...... 25
Dissenting Views........................................... 27
Purpose and Summary
H.R. 1218, the Child Custody Protection Act, has two
primary purposes. The first is to protect the health and safety
of young girls by preventing valid and constitutional state
parental involvement laws from being circumvented. The second
is to protect the rights of parents to be involved in the
medical decisions of their minor daughters.
To achieve these purposes, H.R. 1218 makes it a federal
offense to knowingly transport a minor across a state line,
with the intent that she obtain an abortion, in circumvention
of a state's parental consent or parental notification law.
Violation of the Act is a Class One misdemeanor, carrying a
fine of up to $100,000 and incarceration of up to one year.
H.R. 1218, introduced by Congresswoman Ileana Ros-Lehtinen,
will strengthen the effectiveness of state laws designed to
protect children from the health and safety risks associated
with abortion. In many cases, only a girl's parents know of her
prior psychological and medical history, including allergies to
medication and anesthesia. Also, parents are usually the only
people who can provide authorization for post-abortion medical
procedures or the release of pertinent data from family
physicians. When a pregnant girl is taken to have an abortion
without her parents' knowledge, none of these precautions can
be taken. Thus, when parents are not involved, the risks to the
minor girl's health significantly increase. H.R. 1218 is
designed to effectuate state laws which safeguard minor girls'
physical and emotional health by ensuring parental involvement
in their abortion decisions.
H.R. 1218 does not supercede, override, or in any way alter
existing state parental involvement laws. Nor does the Act
impose any parental notice or consent requirement on any state.
H.R. 1218 addresses the interstate transportation of minors in
order to circumvent valid, existing state laws, and uses
Congress' authority to regulate interstate activity to protect
those laws from evasion.
Background and Need for the Legislation
H.R. 1218 is designed to address the problem of people
transporting minor girls across state lines in defiance of
parental consent and notification laws. Currently, more than 20
states require the consent or notification of at least one
parent (or court authorization) before a minor can obtain an
abortion.\1\ These parental involvement laws enjoy overwhelming
public support.\2\ Nevertheless,
these laws are frequently circumvented by those who transport
minors in interstate commerce to abortion providers in states
that do not have parental notification or consent laws. H.R.
1218 would curb the interstate circumvention of these laws,
thereby protecting the rights of parents and the physical and
mental health of vulnerable minors.
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\1\ In addition, parental involvement laws in 12 other states are
currently not in effect because of court action regarding those laws.
\2\ A 1998 New York Times/CBS News poll found that 78 percent of
Americans support parental consent before abortions are performed on
girls 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 age 18. It is not surprising,
then, that 78% of registered voters in a recent poll by Baselice &
Associates ``strongly disagreed'' when asked whether ``a person
[should] be able to take a minor girl across state lines to obtain an
abortion without her parents' knowledge.'' Another 7% ``somewhat
disagreed,'' while only 3% ``somewhat agreed'' and 6% ``strongly
agreed.''
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Health Risks Associated With Circumvention of Parental Involvement Laws
With respect to state laws requiring parental or judicial
involvement in minors' abortion decisions, federal legislation
is warranted due to the scope of the practice of avoiding such
laws and the profound physical and psychological risks of an
abortion to a minor. As the Supreme Court has observed, ``[t]he
medical, emotional, and psychological consequences of an
abortion are serious and can be lasting; this is particularly
so when the patient is immature.'' \3\
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\3\ H.L. v. Matheson, 450 U.S. 398, 411 (1981).
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The taking of an underage girl out of state for an abortion
by someone who may have no knowledge of her prior medical or
psychological history poses many dangers which could be avoided
through the involvement of her parents. A parent would be able
to alert the abortionist to any known allergies to anesthesia
and medication, provide pertinent information from the girl's
medical or psychological history, and provide authorization for
the release of pertinent data from family physicians.
Moreover, in light of the dangers involved with the
abortion procedure itself, the fact that an adult would take a
minor out of state for such a procedure without notifying her
parents is particularly troubling. Hemorrhaging, perforation or
ripping of the uterus, anesthesia complications, and even death
are all risks of abortion procedures. Parents have a right to
know when their child seeks to undergo a procedure entailing
such risks. Unlike an abortion clinic counselor or another
adult, who may have only a transitory role in the minor's life,
it is the parents who play a permanent role and who are best
able to fully attend to the child's well-being even beyond the
abortion.
Once the girl returns home, she may suffer physical
complications from the abortion. If the parents are aware that
their daughter has had an abortion, that knowledge could be
critical to ensuring that the young girl receives treatment in
a timely fashion with the onset of symptoms. If the parents
remain ignorant of the abortion, however, they will be unable
to provide the benefit of their knowledge and expertise to
their young daughter in a timely manner if complications
develop.
This position has the support of Dr. Bruce A. Lucero, an
abortionist who performed some 45,000 abortions over the course
of his career. Dr. Lucero, who has supported the Child Custody
Protection Act, wrote an op-ed for The New York Times about his
own experience with minor girls seeking abortions. ``In almost
all cases,'' Dr. Lucero wrote, ``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.'' \4\ However, according to Dr. Lucero, ``parents 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.'' \5\
Moreover, Dr. Lucero explained that ``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 teenager who has an abortion across state lines without her
parents' knowledge is even more unlikely to tell them that she
is having complications.'' \6\
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\4\ Bruce A. Lucero, M.D., Parental Guidance Needed, N.Y. Times,
July 12, 1998, section 4, at 1.
\5\ Id.
\6\ Id.
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The long-term physical consequences of abortion are well
known, including, as the Supreme Court has recognized, ``an
increased risk of complication in subsequent pregnancies.'' \7\
The effects of an abortion decision may remain with an
adolescent for the rest of her life. That is all the more
reason that her parents' right to be involved should not be
usurped by another adult surreptitiously taking her out of
state.
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\7\ Matheson, 450 U.S. at 411 n.20.
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Young adolescent girls are particularly at risk of certain
detrimental medical consequences from an abortion. For
instance, there is a greater risk of cervical injury associated
with suction-curettage abortions (at 12 weeks' gestation or
earlier) performed on girls 17 or younger.\8\ Cervical injury
is of serious concern because it may predispose the young girl
to adverse outcomes in future pregnancies.\9\ Girls 17 or
younger also face a two and a half times greater risk of
acquiring endometritis following an abortion than do women 20-
29 years old.\10\
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\8\ See Willard Cates, Jr., M.D., M.P.H., Kenneth F. Schulz, M.B.A.
& David A. Grimes, M.D., The Risks Associated With Teenage Abortion,
The New England Journal of Medicine, Sept. 15, 1983, at 621-624.
\9\ See id. at 624.
\10\ See Burkman et al., Morbidity Risk Among Young Adolescents
Undergoing Elective Abortion, Contraception, vol. 30 (1984), at 99-105.
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Testimony from Parents
At hearings during the 105th and 106th Congresses, the
Subcommittee on the Constitution heard testimony from two
mothers whose daughters were secretly taken for abortions, with
devastating consequences.
Eileen Roberts testified that her 13 year-old daughter was
encouraged by a boyfriend, with the assistance of his adult
friend, to obtain a secret abortion.\11\ The adult friend drove
Ms. Roberts' daughter to an abortion clinic 45 miles away from
her home and paid for their daughter to receive the
abortion.\12\ After two weeks of observing their daughter's
depression, Ms. Roberts and her husband learned that the young
girl had an abortion from a questionnaire they found under her
pillow, which their daughter had failed to return to the
abortion clinic.\13\
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\11\ See Child Custody Protection Act: Hearings on H.R. 1218 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Cong. (May 27, 1999) (statement of Eileen Roberts).
\12\ See 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.
\13\ See id.
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Ms. Roberts' daughter was then hospitalized as a result of
the depression, and a physical examination revealed that the
abortion had been incompletely performed and required surgery
to repair the damage done by the abortionist.\14\ The hospital
called Ms. Roberts and told her that they could not do
reparative surgery without a signed consent form.\15\ The
following year, Ms. Robert's daughter developed an infection
and was diagnosed with having pelvic inflammatory disease,
again requiring a two day hospitalization for antibiotic
therapy and requiring a signed consent form.\16\ Ms. Roberts
and her family were responsible for over $27,000 in medical
costs all of which resulted from this one secret abortion.\17\
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\14\ See id.
\15\ See id.
\16\ See id.
\17\ See id.
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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.\18\
In the words of Joyce Farley, the abortion was arranged to
destroy evidence--evidence that her 12 year-old daughter had
been raped.\19\ 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).\20\ Following the abortion, the mother of the
rapist dropped off the child in another town 30 miles from the
child's home.\21\ The child returned to her home with severe
pain and bleeding which revealed complications from an
incomplete abortion.\22\ 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.\23\ Fortunately, Ms. Farley, being a nurse, knew this
advice was wrong and could be harmful, but her daughter would
not have known this.\24\ Because of her mother's intervention,
Ms. Farley's daughter ultimately received further medical care
and a second procedure to complete the abortion.\25\
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\18\ See Child Custody Protection Act: Hearings on H.R. 3682 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong., (May 21, 1998) (statement of Joyce Farley).
\19\ See id.
\20\ See id.
\21\ See id.
\22\ See id.
\23\ See id.
\24\ See id.
\25\ See id.
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The Prevalence of This Interstate Activity
There is no serious dispute regarding the fact that the
transportation of minors across state lines in order to obtain
abortions is both a widespread and frequent practice. Even
groups opposed to H.R. 1218 acknowledge that large numbers of
minors are transported across state lines to obtain abortions,
in many cases by adults other than their parents. In 1995,
Kathryn Kolbert, then an attorney with the Center for
Reproductive Law and Policy (a national pro-abortion legal
defense organization) asserted that thousands of adults are
helping minors cross state lines to get abortions in states
whose parental involvement requirements are less stringent or
non-existent: ``There are thousands of minors who cross state
lines for an abortion every year and who need the assistance of
adults to do that.'' \26\ The following is a survey of several
states and their experience with evasion of parental
involvement laws.
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\26\ Labor of Love is Deemed Criminal, The National Law Journal,
Nov. 11, 1996, at A8.
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Pennsylvania
Since Pennsylvania's current parental consent law took
effect in March of 1994, news reports have repeatedly
maintained that many Pennsylvania teenagers are going out of
state to New Jersey and New York to obtain abortions. In fact,
in 1995 the New York Times reported that ``Planned Parenthood
in Philadelphia has a list of clinics, from New York to
Baltimore, to which they will refer teen-agers, according to
the organization's executive director, Joan Coombs.'' \27\
Moreover, the Times gave accounts of clinics that had seen an
increase in patients from Pennsylvania.\28\ One clinic, in
Cherry Hill, New Jersey, reported seeing a threefold increase
in Pennsylvania teenagers coming for abortions.\29\ Likewise, a
clinic in Queens, New York reported that it was not unusual to
see Pennsylvania teenagers as patients in 1995, though earlier
it had been rare.\30\
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\27\ Teen-Agers Cross State Lines in Abortion Exodus, N.Y. Times,
Dec. 18, 1995, at B6.
\28\ See id.
\29\ See id.
\30\ See id.
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In the period just prior to the Pennsylvania law taking
effect, efforts were underway to make it easier for teenagers
to go out of state for abortions. For instance, Newsday
reported that ``[c]ounselors and activists are meeting to plot
strategy and printing maps with directions to clinics in New
York, New Jersey, Delaware and Washington, D.C., where
teenagers can still get abortions without parental consent. . .
. `We will definitely be encouraging teenagers to go out of
state,' said Shawn Towey, director of the Greater Philadelphia
Woman's Medical Fund, a nonprofit organization that gives money
to women who can't afford to pay for their abortions.'' \31\
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\31\ Charles V. Zehren, New Restrictive Abortion Law, Newsday, Feb.
22, 1994.
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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. For example,
the March 1999-February 2000 Yellow Pages for Philadelphia,
Pennsylvania contain advertisements from three New Jersey
abortionists declaring ``No Parental Consent Required.'' A
Rockville, Maryland abortionist ran a similar advertisement in
the May 1998-April 1999 Yellow Pages for Harrisburg,
Pennsylvania. Such advertisements have appeared in telephone
directories for Wilkes-Barre and Dallas, Scranton, Clarks
Summit, and Carbondale, Bethlehem, Allentown, York, and Erie.
Missouri
In 1997, a study in the American Journal of Public Health
reported that a leading abortion provider in Missouri refers
minors out of state for abortions if the girls do not want to
involve their parents.\32\ Reproductive Health Services, which
performs over half of the abortions performed in Missouri,
refers minors to the Hope Clinic for Women in Granite City,
Illinois. Research reveals that based on the available data the
odds of a minor traveling out of state for an abortion
increased by over 50 percent when Missouri's parental consent
law went into effect.\33\ Furthermore, compared to older women,
underage girls were significantly more likely to travel out of
state to have their abortions.\34\
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\32\ See Charlotte Ellertson, Ph.D., Mandatory Parental Involvement
in Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and
Indiana, American Journal of Public Health, Aug., 1997, at 1371.
\33\ See id.
\34\ See id.
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A 1999 St. Louis Post-Dispatch news report confirms that
the Hope Clinic in Illinois continues to attract underage girls
seeking abortions without parental involvement.\35\ A clinic
counselor estimates that she sees two girls each week seeking
to avoid their home state's parental involvement law. One
recent example was a 16 year-old girl from Missouri who had
called abortion clinics in St. Louis and learned that parental
consent was required before a minor could obtain an abortion.
According to the report, the Hope Clinic performed 3,200
abortions on out-of-state women last year, and the clinic's
executive director estimates that that number is 45% of the
total abortions performed at the clinic. The executive director
also estimates that 13% of the clinic's clients are minors.
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\35\ See Illinois May Tighten Rules on Abortions For Teens;
Parental Consent is Not Required Abortion Bill Targets as Teen Haven
For Abortion, St. Louis Post-Dispatch, Feb. 25, 1999.
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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 of 1981,
according to a published study and anecdotal information.\36\ A
1986 study published in the American Journal of Public Health
found that in the four months prior to implementation of the
parental consent law, an average of 29 Massachusetts minors
obtained out-of-state abortions each month (in Rhode Island,
New Hampshire, Connecticut, and New York--data for Maine was
not available).\37\ 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.\38\
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\36\ The Massachusetts law was changed in 1997 to require the
consent of one parent (or judicial authorization), rather than both
parents as previously required.
\37\ See Virginia G. Cartoof & Lorraine V. Klerman, Parental
Consent for Abortion: Impact of the Massachusetts Law, American Journal
of Public Health, April 1986, at 397.
\38\ See id. 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 was
able to nearly double the monthly average of abortions
performed on Massachusetts minors (from 14 in 1981 to 27 in
1982). The abortionist ``began advertising in the 1982 Yellow
Pages of metropolitan areas along the northern Massachusetts
border, stating `consent for minors not required.' '' \39\
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\39\ Id. at 399.
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In April of 1991, the Planned Parenthood League of
Massachusetts estimated that approximately 1,200 Massachusetts
minor girls travel out of state for abortions each year, the
majority of them to New Hampshire.\40\ Planned Parenthood said
that surveys of New Hampshire clinics revealed an average of
100 appointments per month by Massachusetts minors.\41\
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\40\ See M.A.J. McKenna, Mass. abortion laws push teens over
border, Boston Herald, April 7, 1991, at A1.
\41\ See id.
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Mississippi
A 1995 study of the effect of Mississippi's parental
consent law revealed that Mississippi has also experienced an
increase in the number of minors traveling out of state for
abortion. The study, published in Family Planning Perspectives,
compared data for the five months before the parental consent
law took effect in June of 1993, with data for the six months
after it took effect, and found that ``[a]mong Mississippi
residents having an abortion in the state, the ratio of minors
to older women decreased by 13%. . . . However, this decline
was largely offset by a 32% increase in the ratio of minors to
older women among Mississippi residents traveling to other
states for abortion services.'' \42\ 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.''
\43\
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\42\ Stanley K. Henshaw, The Impact of Requirements for Parental
Consent on Minors' Abortions in Mississippi, Family Planning
Perspectives, June, 1995, at 121.
\43\ Id. at 122.
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Virginia
Grace S. Sparks, executive director of the Virginia League
of Planned Parenthood, predicted in February of 1997 that if
Virginia were to pass a parental notification law, teenagers
would travel out of state for abortions. ``In every state where
they've passed parental notification, . . . there's been an
increase in out-of-state abortions,'' she said, adding, ``I
suspect that that's what will happen in Virginia, that teen-
agers who cannot tell their parents . . . will go out of state
and have abortions. . . .'' \44\
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\44\ 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 dropped 20 percent during the first five months that the
law was in effect (from 903 abortions during the same time
period in 1996 to approximately 700 abortions in 1997).\45\ The
article suggests, however, that Virginia teenagers are
traveling to the District of Columbia in order to obtain
abortions without involving their parents. In fact, the
National Abortion Federation (NAF), which runs a toll-free
national abortion hotline, said that calls from Virginia
teenagers seeking information on how to obtain an abortion out-
of-state were the largest source of teenage callers seeking
out-of-state abortions, at seven to 10 calls per day. NAF
hotline operator Amy Schriefer has gone so far as to talk a
Richmond area teenage girl through the route (involving a
Greyhound bus and the Metro's Red Line) to obtain an abortion
in the District of Columbia.
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\45\ See Ellen Nakashima, Fewer Teens Receiving Abortions In
Virginia, The Washington Post, March 3, 1998.
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Adult Male Predators and Evasion of Parental Involvement Laws
Importantly, evasion of a state's parental involvement law
can sometimes be part of an effort to cover up the commission
of a crime. According to Professor Teresa Collett of the South
Texas College of Law, who testified before the Subcommittee on
the Constitution last year, it is becoming increasingly clear
that most underage pregnancies are the result of a lack of
sexual restraint by adult men.\46\ In a study of over 46,000
pregnancies of school-age girls in California, researchers
found that ``71%, or over 33,000, were fathered by adult post-
high-school men whose mean age was 22.6 years, an average of 5
years older than the mothers. . . . Even among junior high
school mothers aged 15 or younger, most births are fathered by
adult men 6-7 years their senior. Men aged 25 or older father
more births among California school-age girls than do boys
under age 18.'' \47\ Other studies have found that most teenage
pregnancies are the result of predatory practices by men who
are substantially older.\48\
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\46\ See Child Custody Protection Act: Hearings on H.R. 3682 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
105th Cong. (May 21, 1998) (statement of Professor Teresa Stanton
Collette, Professor of Law, South Texas College of Law) (citing Mike A.
Males & Kenneth S.Y. Chew, The Ages of Fathers in California Adolescent
Births, 1993 Am. J. Publ. Health 565 (April 1996); David J. Landry &
Jacqueline Darroch Forrest, How Old Are U.S. Fathers?, Family Planning
Perspectives, July/Aug. 1995, at 159).
\47\ See id. (citing Mike A. Males, Adult Involvement in Teenage
Childbearing and STD, Lancet, July 1995, at 64).
\48\ See id.
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Another study reports that 58 percent of the time it is the
girl's boyfriend who accompanies her for an abortion when her
parents have not been told about the pregnancy.\49\ Obviously,
many of these males are vulnerable to statutory rape charges,
and thus have a strong incentive to pressure the girl to agree
to an abortion without revealing the pregnancy to her parents.
Currently, such a male often can evade parental consent
requirements by driving his victim across state lines.
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\49\ See Stanley Henshaw & Kathryn Post, Parental Involvement in
Minors' Abortion Decisions, Family Planning Perspectives, Sept./Oct.
1992, at 206.
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Constitutional analysis
Constitutional Authority for the Child Custody Protection Act
H.R. 1218 is a regulation of commerce among the several
states. Commerce, as that term is used in the Constitution,
includes travel whether or not that travel is for reasons of
business.\50\ To transport another person across state lines is
to engage in commerce among the states. There is thus no need
to address the scope of Congress' power to regulate activity
that is not, but that affects, commerce among the States.\51\
Under current Supreme Court jurisprudence, Congress can adopt
rules concerning interstate commerce, such as this one, for
reasons related primarily to local activity rather than
commerce itself.\52\
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\50\ See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
\51\ See, e.g., A.L.A. Schechter 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).
\52\ See United States v. Darby, 312 U.S. 100 (1941).
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The interstate transportation of minors for purposes of
securing an abortion is, therefore, clearly a form of
interstate commerce which the Constitution expressly empowers
Congress to regulate.\53\ H.R. 1218 only regulates conduct
which involves interstate movement, activity which the national
government alone is expressly authorized by the Constitution to
address.
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\53\ U.S. Const., art. I, Sec. 8, cl. 3.
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Roe v. Wade and the Child Custody Protection Act
In Roe v. Wade,\54\ a majority of the Supreme Court found
that the Fourteenth Amendment's Due Process Clause, which
provides that no state shall deprive any person of ``life,
liberty, or property'' without due process of law, includes
within it a ``substantive'' component which bars a state from
prohibiting abortions under some circumstances. This
substantive component of the 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.\55\ In Planned Parenthood v.
Casey,\56\ the scope of permissible state regulation of
abortion and the standards to be applied in evaluating the
constitutionality of state regulations were significantly
changed. Instead of declaring that the right to seek an
abortion was a ``fundamental right'' requiring a ``compelling
state interest'' in order to be regulated, the new holding was
that state regulation of abortion is permissible so long as
such regulation does not place an ``undue burden'' on a woman's
exercise of her constitutional rights with regard to
abortion.\57\
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\54\ 410 U.S. 113 (1973).
\55\ See Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia,
J., dissenting).
\56\ 505 U.S. 833 (1992).
\57\ 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, see id. at 984-995 (Scalia, J.,
dissenting). 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.'').
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H.R. 1218 does not raise any questions concerning the
permissible regulation of abortion that are independent of the
state laws that it is designed to effectuate. To the extent
that a state rule is inconsistent with the Supreme Court's
doctrine, that rule is ineffective and H.R. 1218 would not make
it effective. Therefore, it is unnecessary to ask whether, for
example, the ``life exception'' in Subsection (b)(1) of H.R.
1218 is an adequate exception to a rule regulating abortion or
whether the inability to circumvent a state law is an ``undue
burden.'' Because constitutional limits on the States'
regulatory authority are in effect incorporated into Subsection
(a) of the Act, Subsection (b)(1) is in addition to any
exceptions required by the Court's doctrine.
Constitutionality of Parental Involvement Laws
Following the Court's decision in Roe v. Wade,\58\ many
states enacted parental consent or notification statutes
requiring minors to notify or seek the consent of their parents
before undergoing an abortion. Parental consent laws generally
require one or both parents to give actual consent to the
minor's decision to have an abortion. Parental notification
laws typically require the physician, or in some statutes
another health care provider, to notify one or both of the
parents of the minor female at some time prior to the abortion.
---------------------------------------------------------------------------
\58\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
The Supreme Court first considered parental involvement in
a minor daughter's abortion in Planned Parenthood of Central
Missouri v. Danforth.\59\ The Missouri statute at issue in that
case gave a minor girl's parent an absolute veto over her
decision to have an abortion. The majority, led by Justice
Blackmun, found that the veto power was unconstitutional.\60\
The majority also noted, however, that a state has greater
authority to regulate abortion procedures for minor girls than
for adult females.\61\
---------------------------------------------------------------------------
\59\ 428 U.S. 52 (1976).
\60\ See id.
\61\ See id. at 74-75.
---------------------------------------------------------------------------
In Bellotti v. Baird,\62\ 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).\63\ The statute in
Bellotti II required a minor to obtain the consent of her
parents or circumvent this requirement through a judicial
bypass proceeding that did not take into account whether the
minor was sufficiently mature to make an informed decision
regarding the abortion. The Supreme Court invalidated the
statute without a majority opinion.
---------------------------------------------------------------------------
\62\ 428 U.S. 132 (1976).
\63\ 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.\64\ This has
become the de facto constitutional standard for parental
consent and notification laws. In upholding parental
involvement laws, the plurality found three reasons why the
constitutional rights of minors were not identical 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.'' \65\ Thus, the plurality sought to design guidelines
for a judicial bypass proceeding that allowed states to address
these interests.
---------------------------------------------------------------------------
\64\ See id. at 651.
\65\ Id. at 634.
---------------------------------------------------------------------------
In H.L. v. Matheson,\66\ a minor girl challenged the
constitutional validity of a state statute that required a
physician to give notice to the parents of a minor girl
whenever possible before performing an abortion on her. By a
vote of six to three, the statute was found to be
constitutional. The Court held that a state could require
notification of 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.'' \67\
---------------------------------------------------------------------------
\66\ 450 U.S. 398 (1981).
\67\ Id. at 409.
---------------------------------------------------------------------------
In Planned Parenthood Association of Kansas City, Missouri,
Inc. v. Ashcroft,\68\ the Court upheld a state law which
required a minor to obtain the consent of one of her parents
before obtaining 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.
---------------------------------------------------------------------------
\68\ 462 U.S. 476 (1983).
---------------------------------------------------------------------------
In Ohio v. Akron Center for Reproductive Health,\69\ 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.\70\ 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.
---------------------------------------------------------------------------
\69\ 497 U.S. 502 (1990).
\70\ See id. at 514-515.
---------------------------------------------------------------------------
In Hodgson v. Minnesota,\71\ 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 upheld, however, statutory requirements that both
parents be notified of the abortion and a 48 hour waiting
period between notification and the performance of the
abortion, if such requirements were accompanied by a judicial
bypass procedure that met constitutional standards.
---------------------------------------------------------------------------
\71\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
This line of cases makes clear that a state may require the
consent or notification of one or both of a minor's parents if
the state provides for a constitutionally sound judicial bypass
procedure. The Child Custody Protection Act is designed to
preserve the application of such state laws, supplemented by a
penalty section to provide a uniform penalty for those
individuals circumventing laws by crossing state lines. Because
the Act derives its substantive content entirely from state
law, the Act will only be enforceable when a prosecutor can
show that a constitutionally sound state parental consent or
notification law exists. Thus, H.R. 1218 does not independently
implicate any constitutional issues associated with parental
notification or consent mandates.
Judicial Bypass Procedures
Some critics of H.R. 1218 argue that it will remove the
only viable option available to minors who feel that they
cannot tell their parents that they wish to obtain abortions.
This argument ignores, however, the available judicial bypass
procedures which all valid parental involvement statutes
contain. Opponents of H.R. 1218 also argue that judicial bypass
procedures are too complicated and intrusive to be an effective
option for most young girls. Yet, in actuality, judicial bypass
proceedings are quite simple and bypasses are easily
obtained.\72\
---------------------------------------------------------------------------
\72\ A survey of Massachusetts cases filed between 1981 and 1983
found that every minor that sought judicial authorization to bypass
parental consent received it. See Robert H. Mnookin, Bellotti v. Baird,
A Hard Case in In the Interest of Children: Advocacy, Law Reform, and
Public Policy 149 at 239 (Robert H. Mnookin ed., 1985). A subsequent
study found that orders were refused to only 1 of 477 girls seeking
judicial authorization from Massachusetts courts between December 1981
and June 1985. See Susanne Yates & Anita J. Pliner, Judging Maturity in
the Courts: the Massachusetts Consent Statute, 78 Am. J. Pub. Health
646, 647 (1988). The average hearing lasted only 12.12 minutes, and
``more than 92 percent of the hearings [were] less than or equal to 20
minutes.'' Id. at 648. Based upon a review of bypass petitions filed in
Minnesota from August 1, 1981, to March 1, 1986, a federal trial court
determined that of the 3,573 bypass petitions filed, six were
withdrawn, nine were denied, and 3,558 were granted. See Hodgson v.
State of Minnesota, 648 F. Supp. 756 at 765 (D. Minn. 1986). Similar
ease in obtaining judicial approval as an alternative to parental
involvement is suggested by a recent report on the newly enacted
Virginia statute requiring parental notification. Out of 18 requests
for judicial bypass, ``all but one of the requests were granted
eventually.'' Ellen Nakashima, Fewer Teens Receiving Abortion in
Virginia: Notification Law to Get Court Test, Washington Post (March 3,
1998).
---------------------------------------------------------------------------
Critics of H.R. 1218 also claim that the measure endangers
the health of young girls who are forced to travel out of state
to obtain abortions because the judges in their home states
either refuse to hear judicial bypass petitions or deny them
arbitrarily. In support of this argument, the critics cite
cases like that of Ms. Billie Lominick, who testified before
the Constitution Subcommittee regarding her experience with
South Carolina's judicial bypass procedures. According to Ms.
Lominick, who assisted her grandson's girlfriend in obtaining
an out-of-state abortion, only two judges in the whole state of
South Carolina would even hear a judicial bypass petition, and
one of those judges, according to Ms. Lominick, would only hear
petitions from girls residing in his county.\73\
---------------------------------------------------------------------------
\73\ See Child Custody Protection Act: Hearings on H.R. 1218 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Cong. (May 27, 1999) (statement of Billie Lominick).
---------------------------------------------------------------------------
This argument overlooks the fact that H.R. 1218 merely
provides assistance in the enforcement of constitutional state
parental notice and consent laws. If there are only two judges
in an entire state willing to hear judicial bypass proceedings,
that state's parental involvement laws are unconstitutional
under Supreme Court precedent which requires the state to
provide a minor the opportunity to seek a judicial bypass with
``sufficient expedition to provide an effective opportunity for
an abortion to be obtained.'' \74\
---------------------------------------------------------------------------
\74\ Bellotti v. Baird, 443 U.S. 622, 644 (1979) (plurality
opinion).
---------------------------------------------------------------------------
This fact is illustrated by the First Circuit's decision in
Planned Parenthood League v. Bellotti.\75\ In that case the
court held that the plaintiffs could successfully challenge the
state's judicial bypass procedures if they could present
``proof of `a systemic failure to provide a judicial bypass
option in the most expeditious, practical manner.' '' \76\ The
court of appeals remanded the case to the lower court so that
the plaintiffs' could present evidence that, among other
things, judges were `` `defacto unavailable' to hear minors'
abortion petitions,'' \77\ and many judges were avoided ``for
reasons of hostility.'' \78\ The Sixth Circuit has also
recognized that a constitutional challenge may be brought for a
state's systemic failure to provide an expeditious judicial
bypass.\79\
---------------------------------------------------------------------------
\75\ 868 F.2d 459 (1st Cir. 1989).
\76\ Id. at 469 (quoting Hodgson v. Minnesota, 648 F.Supp. 756, 777
(1986)).
\77\ Id. at 463.
\78\ Id. at 461 n.6.
\79\ See Cleveland Surgi-Center, Inc. v. Jones, 2 F.3d 686, 690
(6th Cir. 1993).
---------------------------------------------------------------------------
Not only must states provide access to judges who are
willing to hear judicial bypass petitions, states must also
ensure that the judges who do hear bypass petitions render
their decisions in an expedited fashion. For example, in
Planned Parenthood of Southern Arizona v. Lawall,\80\ the Court
of Appeals for the Ninth Circuit struck down an Arizona
parental consent statute on the grounds that its judicial
bypass provision lacked specific time limits, and was therefore
in violation of the Bellotti II expediency requirement. The
court reached this conclusion even though the Arizona statute
stated that such proceedings were to be given priority, and
required that ``the court shall reach the decision [on a bypass
request] promptly and without delay to serve the best interests
of a pregnant minor.'' \81\ The court's rationale in adopting a
strict interpretation of the Supreme Court's timeliness
requirement was that ``[o]pen-ended bypass provisions engender
substantial possibilities of delay for minors seeking
abortions.'' \82\
---------------------------------------------------------------------------
\80\ 1999 WL 371565 (9th Cir. June 9, 1999).
\81\ Id. at *4.
\82\ Id. at *8.
---------------------------------------------------------------------------
The Fifth Circuit employed essentially identical reasoning
in striking down a Louisiana judicial bypass procedure having
indefinite time limits.\83\ The court found that ``not only do
[the bypass procedures] fail to provide any specific time
within which a minor's application will be decided, but they
give no assurances (assurances required by Bellotti II) that
the proceedings will conclude expeditiously.'' \84\
---------------------------------------------------------------------------
\83\ See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir.
1997).
\84\ Id. at 1110-11.
---------------------------------------------------------------------------
As these cases illustrate, judicial bypass procedures must
be readily accessible and efficient in order to pass
constitutional muster. H.R. 1218 will only assist in the
enforcement of parental involvement laws which meet the
relevant constitutional criteria.
Constitutionality of Lack of Proof of Specific Intent to Circumvent
State Law
Critics of H.R. 1218 also argue that it is unconstitutional
because it lacks a requirement that the defendant have
knowledge of and intend to circumvent the relevant state
parental involvement law. This omission, the critics argue,
renders the bill unconstitutionally lacking a ``criminal
intent'' element. This argument is without merit for two
reasons.
First, H.R. 1218 clearly contains a criminal intent
element. An individual cannot be held liable under the bill
unless they ``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.'' The
requirement that the defendant ``knowingly'' transport a minor
with the intent that the minor obtain an abortion prevents H.R.
1218 from acting as a strict liability law. As stated in one
well-known criminal law treatise:
A statute is not of the strict liability variety
simply because it permits conviction of the defendant
without proof that he was aware his conduct was
criminal. Although a statute might be drafted in such a
way that such awareness is required for conviction, . .
. in the absence of such a requirement there usually
exists a mens rea requirement that defendant intend or
know what he is doing in a physical sense (apart from
knowledge as to its legality).\85\
---------------------------------------------------------------------------
\85\ Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal
Law Sec. 3.8 (1986).
---------------------------------------------------------------------------
Second, it is well settled that it does not violate due
process of law to punish individuals who claim to be ignorant
of the law. As the Supreme Court stated over seventy five years
ago,
the state may in the maintenance of a public policy
provide that he who shall do [particular acts] shall do
them at his peril and will not be heard to plead in
defense good faith or ignorance. Many instances of this
are to be found in regulatory measures in the exercise
of what is called the police power where the emphasis
of the statute is evidently upon achievement of some
social betterment rather than the punishment of the
crimes as in the cases of mala in se.\86\
---------------------------------------------------------------------------
\86\ United States v. Balint, 258 U.S. 250, 252 (1922) (internal
quotation marks omitted).
---------------------------------------------------------------------------
This principle has been reaffirmed by the Supreme Court,\87\
with only a few exceptions not relevant here.\88\
---------------------------------------------------------------------------
\87\ See, e.g., United States v. International Minerals & Chem.
Corp., 402 U.S. 558 (1971).
\88\ See, e.g., id. at 565 (noting that crimes relating to minor
things such as ``[p]encils, dental floss, [and] paper clips'' might
require mens rea element); Lambert v. California, 355 U.S. 225 (1958)
(holding that where statute makes wholly passive conduct criminal, due
process requires scienter); Smith v. California, 361 U.S. 147 (1959)
(holding that strict liability for possession of obscenity would
unconstitutionally chill First Amendment freedoms).
---------------------------------------------------------------------------
Federalism and the Child Custody Protection Act
The United States Constitution created a federal government
with limited and enumerated powers. All other powers are, as
stated in the Tenth Amendment, ``reserved to the States
respectively, or to the people.'' \89\ According to Professor
Stephen Presser of the Northwestern University School of Law,
\90\
---------------------------------------------------------------------------
\89\ U.S. Const. amend. X.
\90\ Professor Presser testified before the Subcommittee on the
Constitution in support of the Child Custody Protection Act during the
105th Congress, and submitted a written statement in support of H.R.
1218 during the 106th Congress.
----------------------------------------------------------------------------
[t]he Constitution created a federal government with
limited and enumerated powers, and much of the genius
of the document was the means employed for ensuring
that the federal government did not overwhelm the state
and local governments. The system of checks and
balances, whereby the three branches of the federal
government restrained each other, was an important
aspect of this plan, but equally important was the
basic notion that the federal government was not to
intrude on the domestic matters which had traditionally
been the prerogative of state and local
governments.\91\
---------------------------------------------------------------------------
\91\ See Child Custody Protection Act: Hearings on H.R. 1218 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Congress, May 27, 1999 (statement of Professor Stephen B.
Presser, Professor of Law, Northwestern University School of Law).
----------------------------------------------------------------------------
H.R. 1218 respects this division of authority between the
federal government and the states in that it does not attempt
to regulate or impose policy on the individual states. Rather,
H.R. 1218 is predicated on the validity of state law and
derives its substantive application from state law. According
to Professor Presser, ``[b]y imposing penalties on anyone who
seeks to deny a minor or her family the protections of a
state's parental consent/judicial bypass provisions with regard
to abortion, as H.R. 1218 would do, the Congress would simply
be reinforcing our Federalism scheme, and ensuring that each
state's policy aims regarding this controversial issue are not
frustrated.'' \92\ Professor Lino A. Graglia of the University
of Texas Law School also testified that H.R. 1218 ``furthers
the principle of federalism'' in that it seeks to ``reinforce
or make effective'' state policies that are being transgressed
or evaded.\93\
---------------------------------------------------------------------------
\92\ Id.
\93\ See Child Custody Protection Act: Hearings on H.R. 1218 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Congress, May 27, 1999 (statement of Professor Lino A. Graglia,
Professor of Law, University of Texas Law School).
---------------------------------------------------------------------------
H.R. 1218 does not supercede, override, or alter existing
state laws regarding minors' abortions. Rather, H.R. 1218 uses
Congress' authority to regulate interstate activity to protect
state laws from evasion. As Professor Presser stated:
[t]he political processes of each state exists to
resolve these difficult questions through the exercise
of popular sovereignty, the bedrock of our entire
Constitutional system. Not for nothing are the first
three words of the Constitution ``We the people,'' and
unless the Constitution itself expressly denies the
people any discretion over a particular area it is
their right, indeed, it is their duty to govern
themselves regarding that issue through the legislative
process. This is the most important right in the
Constitution, the right of self government, for which
our system of dual sovereignty exists. This Bill is an
important step in reinforcing Federalism and in
reinforcing self-government. It deserves to be
enacted.\94\
---------------------------------------------------------------------------
\94\ See Child Custody Protection Act: Hearings on H.R. 1218 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Congress, May 27, 1999 (statement of Professor Stephen B.
Presser, Professor of Law, Northwestern University School of Law).
---------------------------------------------------------------------------
In short, H.R. 1218 does not encroach on state powers, but
rather reinforces state powers.
H.R. 1218 is not unlike the Mann Act which, before being
amended in 1986, made it a crime to transport a woman across
state lines ``for the purpose of prostitution or debauchery, or
for any other immoral purpose.'' \95\ That statute was upheld
as applied to the transportation of a person to Nevada for
purposes of engaging in prostitution, even though prostitution
was legal in Nevada.\96\
---------------------------------------------------------------------------
\95\ 18 U.S.C.A. Sec. 2421 (1970). As amended, the statute
prohibits the knowing transportation of any individual across state
lines ``with the intent that such individual engage in prostitution, or
in any sexual activity for which the person can be charged with a
criminal offense, or attempts to do so. . . .'' 18 U.S.C. Sec. 2421
(West Supp. 1999).
\96\ See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978).
---------------------------------------------------------------------------
A similar provision prohibited the persuading, inducing,
enticing, or coercion of a minor girl ``to go from one place to
another by common carrier . . . with the intent that she be
induced or coerced to engage in prostitution, debauchery or
other immoral practice.'' \97\ This provision would presumably
have prohibited an individual from causing a 15 year old minor
to travel from a state in which the minimum age for consensual
sex was 16 to a state in which the minimum was 14, in order to
have sex with her.
---------------------------------------------------------------------------
\97\ 18 U.S.C.A. Sec. 2423 (1970).
---------------------------------------------------------------------------
Opponents of H.R. 1218 respond to this argument by noting
that a violation of the Mann Act is not keyed to the underlying
state law. But that distinction is of no significance. The Mann
Act flatly prohibited the interstate transportation of women
for ``prostitution'' or for ``any other immoral purpose.'' In
the exercise of its commerce power, Congress could similarly
prohibit the interstate transportation of minors for abortions
without obtaining parental notice or consent, whether or not
parental notice or consent is required by state law.\98\
Instead, H.R. 1218 respects the laws of the various states by
only prohibiting the interstate transportation of young girls
in order to avoid the laws of states that have chosen to
require parental involvement in the abortion decisions of
minors.
---------------------------------------------------------------------------
\98\ See Hoke v. United States, 227 U.S. 308, 323 (1913) (noting,
in upholding the constitutionality of the Mann Act, ``that Congress has
power over transportation `among the several states;' that the power is
complete in itself, and that Congress, as an incident to it, may adopt
not only means necessary but convenient to its exercise, and the means
may have the quality of police regulations'').
---------------------------------------------------------------------------
Moreover, it is important to note that the Mann Act
prohibited the interstate transportation of women for ``immoral
purposes,'' and the Supreme Court upheld convictions under that
provision for those who only transported women across state
lines as ``mistresses'' and ``concubines.'' \99\ In upholding
the law as a valid exercise of Congress' commerce power, the
Court stated that
---------------------------------------------------------------------------
\99\ See Caminetti v. United States, 242 U.S. 470, 483 (1917).
---------------------------------------------------------------------------
[t]he transportation of passengers in interstate
commerce, it has long been settled, is within the
regulatory power of Congress, under the commerce clause
of the Constitution, and the authority of Congress to
keep the channels of interstate commerce free from
immoral and injurious uses has been frequently
sustained, and is no longer open to question.\100\
---------------------------------------------------------------------------
\100\ Id. at 491.
---------------------------------------------------------------------------
Just as it was appropriate for Congress to use its
constitutional authority to keep the channels of interstate
commerce free from ``immoral'' conduct, so it is also
appropriate for Congress to exercise that authority to keep the
channels of interstate commerce free from those who transport
minors across state lines in order to circumvent state parental
involvement laws.
The Mann Act is also not the only example of federal laws
that prohibit interstate activities that might be legal in the
state to which the activity is directed. Indeed, as long ago as
1876, Congress ``made it a crime to deposit in the mails any
letters or circulars concerning lotteries, whether illegal or
chartered by state legislatures.'' \101\ A statute to this
effect is still in force.\102\ Congress later prohibited the
transportation of lottery tickets in interstate commerce,
whether or not lotteries are legal in the state to which the
tickets are transported.\103\ That provision was upheld by the
Supreme Court in Champion v. Ames \104\ and is still in effect.
---------------------------------------------------------------------------
\101\ United States v. Edge Broadcasting Co., 509 U.S. 418, 421
(1993).
\102\ See 18 U.S.C.A. Sec. 1302 (prohibiting the mailing of lottery
tickets or letters, circulars, and other materials regarding a
lottery).
\103\ See 18 U.S.C. Sec. 1301.
\104\ 188 U.S. 321 (1903).
---------------------------------------------------------------------------
Hearings
The Committee's Subcommittee on the Constitution held a
hearing on H.R. 1218, the ``Child Custody Protection Act,'' on
May 27, 1999. Testimony was received from the following
witnesses: Ms. Eileen Roberts, Mothers Against Minors'
Abortions, Inc.; Ms. Billie Lominick of Newbury, South
Carolina; Professor Lino A. Graglia, A. Dalton Cross Professor
of Law, University of Texas School of Law; Dr. Jonathon D.
Klein, M.D., American Academy of Pediatrics; and Professor John
C. Harrison, Professor of Law, University of Virginia School of
Law. Additional material was submitted by Professor Stephen B.
Presser, Raoul Berger Professor of Legal History, Northwestern
University School of Law; National Right to Life Committee,
Inc.; Center for Reproductive Law and Policy; National Abortion
and Reproductive Rights League; and the American Civil
Liberties Union.
Committee Consideration
On June 8, 1999, the Subcommittee on the Constitution met
in open session and ordered reported the bill H.R. 1218,
without amendment, by voice vote, a reporting quorum being
present. On June 23, 1999, the Committee met in open session
and ordered reported favorably the bill, H.R. 1218, without
amendment, by a recorded vote of 16 to 13, a quorum being
present.
Vote of the Committee
1. An amendment was offered by Mr. Nadler to exempt
grandparents and adult siblings of the minor from the
provisions of the bill. The amendment was defeated by a 13-17
roll call vote.
ROLLCALL VOTE NO. 1
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson Lee Mr. Bryant
Mr. Delahunt Mr. Chabot
Mr. Wexler Mr. Barr
Mr. Rothman Mr. Jenkins
Ms. Baldwin Mr. Hutchinson
Mr. Weiner Mr. Pease
Mr. Cannon
Mr. Graham
Ms. Bono
Mr. Scarborough
2. An amendment was offered by Mr. Nadler to permit any
adult who reasonably believed that compliance with state
judicial bypass procedures would either ``compromise the
minor's intent to maintain confidentiality with respect to her
choice to terminate a pregnancy'' or would ``be futile because
the judicial bypass procedure of the minor's state of residence
is unavailable or ineffective,'' to obtain a waiver of the
requirements of the bill from a federal district court. The
amendment was defeated by a 14-17 roll call vote.
ROLLCALL VOTE NO. 2
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson Lee Mr. Bryant
Ms. Waters Mr. Chabot
Mr. Meehan Mr. Barr
Mr. Wexler Mr. Jenkins
Mr. Rothman Mr. Hutchinson
Ms. Baldwin Mr. Pease
Mr. Weiner Mr. Cannon
Mr. Rogan
Ms. Bono
Mr. Scarborough
3. Four amendments were offered en bloc by Ms. Jackson Lee
to exempt ministers, rabbis, pastors, priests, other religious
leaders, aunts, uncles, godparents, and first cousins from the
provisions of the bill. The en bloc amendment was defeated by a
14-16 roll call vote.
ROLLCALL VOTE NO. 3
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Ms. Lofgren Mr. Bryant
Ms. Jackson Lee Mr. Chabot
Ms. Waters Mr. Barr
Mr. Meehan Mr. Jenkins
Mr. Wexler Mr. Hutchinson
Mr. Rothman Mr. Pease
Ms. Baldwin Mr. Cannon
Mr. Weiner Mr. Rogan
Ms. Bono
Mr. Scarborough
4. An amendment was offered by Ms. Waters to prevent the
application of the bill ``with respect to an abortion where the
pregnancy resulted from incest.'' The amendment was defeated by
a roll call vote of 12-15.
ROLLCALL VOTE NO. 4
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson Lee Mr. Goodlatte
Ms. Waters Mr. Bryant
Mr. Rothman Mr. Jenkins
Ms. Baldwin Mr. Hutchinson
Mr. Weiner Mr. Cannon
Mr. Graham
Ms. Bono
Mr. Bachus
5. An amendment was offered by Mr. Watt to require proof
that the defendant acted with the intent to evade the
requirements of a state parental involvement law in order to be
prosecuted under the bill. The amendment was defeated by a
voice vote.
6. An amendment was offered by Mr. Watt to create an
exception where the abortion was necessary to prevent serious
physical illness, injury, or disability. The amendment was
defeated by a 11-17 roll call vote.
ROLLCALL VOTE NO. 5
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Smith (TX)
Ms. Lofgren Mr. Gallegly
Ms. Jackson Lee Mr. Canady
Ms. Waters Mr. Bryant
Mr. Rothman Mr. Chabot
Ms. Baldwin Mr. Barr
Mr. Weiner Mr. Jenkins
Mr. Hutchinson
Mr. Cannon
Mr. Graham
Ms. Bono
Mr. Bachus
Mr. Scarborough
7. An amendment was offered by Ms. Jackson Lee to require
the General Accounting Office to conduct a study of ``the
impact of the number of unsafe and illegal abortions performed
on minors who would be affected by this law, and report to
Congress the results of that study within one year.'' The
amendment was defeated by a 12-17 roll call vote.
ROLLCALL VOTE NO. 6
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Smith (TX)
Ms. Jackson Lee Mr. Gallegly
Ms. Waters Mr. Canady
Mr. Meehan Mr. Bryant
Mr. Wexler Mr. Chabot
Mr. Rothman Mr. Barr
Ms. Baldwin Mr. Jenkins
Mr. Weiner Mr. Hutchinson
Mr. Cannon
Mr. Graham
Ms. Bono
Mr. Bachus
Mr. Scarborough
8. An amendment was offered by Mr. Scott to exempt medical
facilities, doctors, and other medical professionals from
prosecution under the bill. The amendment was defeated by a 12-
16 roll call vote.
ROLLCALL VOTE NO. 7
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Smith (TX)
Ms. Lofgren Mr. Gallegly
Ms. Jackson Lee Mr. Canady
Ms. Waters Mr. Bryant
Mr. Wexler Mr. Chabot
Mr. Rothman Mr. Jenkins
Ms. Baldwin Mr. Hutchinson
Mr. Weiner Mr. Cannon
Mr. Graham
Ms. Bono
Mr. Bachus
Mr. Scarborough
9. An amendment was offered by Mr. Scott to exempt
accessories after the fact, aiders and abetters, and other
principals from prosecution under the bill. The amendment was
defeated by a voice vote.
10. Final Passage. The motion to report the bill, H.R.
1218, favorably without amendment to the whole House. The
motion was agreed to by a roll call vote of 16-13.
ROLLCALL VOTE NO. 8
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Sensenbrenner Mr. Berman
Mr. McCollum Mr. Nadler
Mr. Gekas Mr. Scott
Mr. Coble Mr. Watt
Mr. Smith (TX) Ms. Lofgren
Mr. Gallegly Ms. Jackson Lee
Mr. Canady Ms. Waters
Mr. Bryant Mr. Meehan
Mr. Chabot Mr. Wexler
Mr. Jenkins Mr. Rothman
Mr. Hutchinson Ms. Baldwin
Mr. Cannon Mr. Weiner
Mr. Graham
Ms. Bono
Mr. Bachus
Mr. Scarborough
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 1218, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1218, the Child
Custody Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
H.R. 1218--Child Custody Protection Act
CBO estimates that implementing H.R. 1218 would not result
in any significant cost to the federal government. Because
enactment of H.R. 1218 could affect direct spending and
receipts, pay-as-you-go procedures would apply to the bill.
However, CBO estimates that any impact on direct spending and
receipts would not be significant. H.R. 1218 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.
H.R. 1218 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.
Becuase those prosecuted and convicted under H.R. 1218
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,
who can be reached at 226-2860. This estimate was approved by
Paul N. Van de Water, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to Rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article 1, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis
H.R. 1218 amends title 18 of the United States Code by
adding sec. 2401 to criminalize the transportation of minors to
avoid certain laws relating to abortion.
Section 1. Short Title
This section states that the short title of this bill is
the ``Child Custody Protection Act.''
Section 2. Transportation of minors in circumvention of certain laws
relating to abortion.
Section 2(a) amends title 18 of the United States Code by
inserting after chapter 117 the following:
Chapter 117A--Transportation of minors in circumvention of
certain laws relating to abortion.
Subsection (a) of this section makes the knowing
transportation across a state line of a person under 18 years
of age with the intent that she obtain an abortion, in
abridgement of a parent's right of involvement according to
State law, a violation of this statute and a chargeable
offense.
Subsection (a), paragraph (1), imposes a maximum of one
year imprisonment or a fine, or both.
Subsection (a), paragraph (2) specifies the criteria for a
violation of the parental right under this statute as follows:
an abortion must be performed on a minor in a state other than
the minor's residence and without the parental consent or
notification, or the judicial authorization, that would have
been required had the abortion been performed in the minor's
state of residence.
Subsection (b), paragraph (1) specifies that subsection (a)
does not apply if the abortion is necessary to save the life of
the minor.
Subsection (b), paragraph (2) clarifies that neither the
minor being transported nor her parents may be prosecuted or
sued for a violation of this bill.
Subsection (c) provides an affirmative defense to
prosecution or civil action based on violation of the bill
where the defendant reasonably believed, based on information
obtained directly from the girl's parent or other compelling
facts, that the requirements of the girl's state of residence
regarding parental involvement or judicial authorization in
abortions had been satisfied.
Subsection (d) establishes a civil cause of action for a
parent who suffers legal harm from a violation of subsection
(a).
Subsection (e) sets forth definitions of certain terms in
this bill.
Subsection (e)(1)(A) defines ``a law requiring parental
involvement in a minor's abortion decision'' to be a law
requiring either ``the notification to, or consent of, a parent
of that minor'' or ``proceedings in a State court.''
Subsection (e)(1)(B) stipulates that a law conforming to
the definition in (e)(1)(A) cannot provide notification to or
consent of any person or entity other than a ``parent'' as
defined in the subsequent section.
Subsection (e)(2) defines ``parent'' to mean a parent or
guardian, or a legal custodian, or a person standing in loco
parentis (if that person has ``care and control'' of the minor
and is a person with whom the minor ``regularly resides'') and
who is designated by the applicable state parental involvement
law as the person to whom notification, or from whom consent,
is required.
Subsection (e)(3) defines ``minor'' to mean a person not
older than the maximum age requiring parental notification or
consent, or proceedings in a State court, under the parental
involvement law of the state where the minor resides.
Subsection (e)(4) defines ``State'' to include the District
of Columbia ``and any commonwealth, possession, or other
territory of the United States.''
Section 2(b) is a clerical amendment to insert the new
chapter in the table of chapters for part I of title 18.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18 UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
117A. Transportation of minors in circumvention of certain laws
relating to abortion................................ 2431
* * * * * * *
CHAPTER 117A--TRANSPORTATION OF MINORS IN CIRCUMVENTION OF CERTAIN LAWS
RELATING TO ABORTION
Sec.
2431. Transportation of minors in circumvention of certain laws relating
to abortion.
Sec. 2431. Transportation of minors in circumvention of certain laws
relating to abortion
(a) Offense.--
(1) Generally.--Except as provided in subsection
(b), whoever knowingly transports an individual who has
not attained the age of 18 years across a State line,
with the intent that such individual obtain an
abortion, and thereby in fact abridges the right of a
parent under a law requiring parental involvement in a
minor's abortion decision, in force in the State where
the individual resides, shall be fined under this title
or imprisoned not more than one year, or both.
(2) Definition.--For the purposes of this
subsection, an abridgement of the right of a parent
occurs if an abortion is performed on the individual,
in a State other than the State where the individual
resides, without the parental consent or notification,
or the judicial authorization, that would have been
required by that law had the abortion been performed in
the State where the individual resides.
(b) Exceptions.--(1) The prohibition of subsection (a) does
not apply if the abortion was necessary to save the life of the
minor because her life was endangered by a physical disorder,
physical injury, or physical illness, including a life
endangering physical condition caused by or arising from the
pregnancy itself.
(2) An individual transported in violation of this section,
and any parent of that individual, may not be prosecuted or
sued for a violation of this section, a conspiracy to violate
this section, or an offense under section 2 or 3 based on a
violation of this section.
(c) Affirmative Defense.--It is an affirmative defense to a
prosecution for an offense, or to a civil action, based on a
violation of this section that the defendant reasonably
believed, based on information the defendant obtained directly
from a parent of the individual or other compelling facts, that
before the individual obtained the abortion, the parental
consent or notification, or judicial authorization took place
that would have been required by the law requiring parental
involvement in a minor's abortion decision, had the abortion
been performed in the State where the individual resides.
(d) Civil Action.--Any parent who suffers legal harm from a
violation of subsection (a) may obtain appropriate relief in a
civil action.
(e) Definitions.--For the purposes of this section--
(1) a law requiring parental involvement in a
minor's abortion decision is a law--
(A) requiring, before an abortion is
performed on a minor, either--
(i) the notification to, or consent
of, a parent of that minor; or
(ii) proceedings in a State court;
and
(B) that does not provide as an alternative
to the requirements described in subparagraph
(A) notification to or consent of any person or
entity who is not described in that
subparagraph;
(2) the term ``parent'' means--
(A) a parent or guardian;
(B) a legal custodian; or
(C) a person standing in loco parentis who
has care and control of the minor, and with
whom the minor regularly resides;
who is designated by the law requiring parental
involvement in the minor's abortion decision as a
person to whom notification, or from whom consent, is
required;
(3) the term ``minor'' means an individual who is
not older than the maximum age requiring parental
notification or consent, or proceedings in a State
court, under the law requiring parental involvement in
a minor's abortion decision; and
(4) the term ``State'' includes the District of
Columbia and any commonwealth, possession, or other
territory of the United States.
Dissenting Views
We strongly dissent from H.R. 1218. As the bill is written,
it is opposed by the Administration and will likely be vetoed
by the President. This legislation will increase health risks
to young women who choose to have an abortion, is anti-family,
and is very likely unconstitutional.\1\ Additionally, the
legislation is opposed by a wide variety of groups that remain
committed to reducing teenage pregnancy and protecting a
woman's right to choose, such as Planned Parenthood, the
National Abortion and Reproductive Rights Action League, and
the Center for Reproductive Law and Policy.
---------------------------------------------------------------------------
\1\ During the last Congress, the Administration sent several
letters to the Committee outlining its strong opposition to H.R. 3682,
last year's ``Child Custody Protection Act.'' See also Statement of
Administration Policy, July 14, 1998. H.R. 1218 is substantially the
same as H.R. 3682.
---------------------------------------------------------------------------
Contrary to its stated intent, instead of simply permitting
state-required parental involvement, H.R. 1218 will
dramatically increase the dangers young women will face in
their decision to have an abortion. In fact, the bill contains
no prohibitions whatsoever against women traveling across state
lines alone to avoid a consent requirement. It will lead more
women to seek illegal ``back alley'' abortions locally, hardly
a desirable policy result. To the extent young women continue
to seek the involvement of close family members when they
cannot confide in their parents--where, for example, a parent
has raped a young woman or where there is a history of child
abuse--this bill will criminalize the actions of those whom the
young woman is most likely to depend upon for support.
Consequently, this bill encourages young women to act in
isolation, putting them at greater risk of physical and
psychological harm.
Further, because the bill violates the principles of
federalism, restricts a young woman's right to travel, and
compels states to treat non-residents differently than
residents, it raises very serious constitutional issues. For
these and the other reasons set forth herein, we dissent from
H.R. 1218.
I. H.R. 1218 Will Endanger Young Women
Although abortion is generally very safe, it is still far
preferable and safer to permit a trusted friend or family
member to drive a woman home from this surgical procedure.\2\
Under this bill, teenagers who are unable to satisfy a state
parental involvement law--either because they cannot tell one
parent (or in some states, both parents) about their pregnancy
or because they have no fair chance of obtaining a judicial
bypass--will be forced to travel alone across state lines to
obtain an abortion.
---------------------------------------------------------------------------
\2\ 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 86% of counties--home to 32% of women of
childbearing age--lack an abortion provider. See Stanley K. Henshaw,
``Abortion Services in the United States, 1995 and 1996,'' Family
Planning Perspectives, Vol. 30, No. 6, 262, 266 (Nov/Dec 1998).
---------------------------------------------------------------------------
As much as we would prefer the active and supportive
involvement of parents in their children's major decisions, it
is not always realistic to expect children to seek parental
involvement willingly in the sensitive area of abortion. And
where a child is unwilling or unable to seek parental consent,
the results can be tragic. The testimony of Bill and Mary Bell
before the Constitution Subcommittee is telling in this
regard.\3\ The Bells were the parents of a daughter who died
receiving an illegal abortion because she did not want her
parents to know about her pregnancy, notwithstanding Indiana's
parental notice law. A Planned Parenthood counselor in Indiana
informed Becky that she would have to 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 she did not even know. Instead of
traveling 110 miles away to Kentucky, Becky opted to undergo an
illegal abortion close to her home. Tragically, Becky developed
serious complications from her illegal abortion that caused her
death. It is unlikely that H.R. 1218 could have changed this
outcome or would have convinced Becky to confide in her parents
about her pregnancy.
---------------------------------------------------------------------------
\3\ See Hearing on H.R. 3682 ``The Child Custody Protection Act''
before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong. 2d Sess. (1998) (statement of Bill and Mary
Bell, submitted for the record). See also Position Paper from The
National Abortion Federation, ``The True Victims of S. 1645/H.R. 3682
The Teen Endangerment Act'' (June 1998) (describing the case of
Keishawn, an eleven year old from Maryland, who was impregnated by her
step-father, and sought an abortion with the assistance of her aunt,
Vicky Simpson, who was awaiting an order granting her custody of
Keishawn. Upon learning of the pregnancy, Keishawn's doctors in
Maryland recommended that Keishawn have anesthesia during the abortion
procedure, but none of 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 H.R. 1218, Vicki could have
been federally prosecuted for helping her young niece cope with this
pregnancy resulting from incest).
---------------------------------------------------------------------------
Moreover, many young women justifiably fear that they would
be physically or emotionally abused if forced to disclose their
pregnancy to their parents. Nearly one-third of minors who
choose not to consult with their parents have experienced
violence in their family or feared violence or being forced to
leave home.\4\ Enacting this legislation and forcing young
women in these circumstances to notify their parents of their
pregnancies will only exacerbate the dangerous cycle of
violence in dysfunctional families. 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.\5\ It is clear that
when a young woman believes that she cannot involve her parents
in her decision to terminate a pregnancy, the law cannot
mandate healthy, open family communication.
---------------------------------------------------------------------------
\4\ See Henshaw at 196.
\5\ See Maggie Boule, ``An American Tragedy,'' Sunday Oregonian,
Aug. 27, 1989.
---------------------------------------------------------------------------
We are well aware of proponents' claims that the bill
protects minors who cannot obtain parental consent because they
have the option to appear before judges and bypass any parental
involvement laws. While bypass may have some theoretical
benefits, in many cases it is difficult if not impossible for
troubled young women to obtain. Some teenagers live in regions
where the local judges consistently refuse to grant bypasses,
regardless of the facts involved. For example, one study found
that a number of judges in Massachusetts either refuse to
handle abortion petitions or focus inappropriately on the
morality of abortion.\6\ Others 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.\7\ The
difficulties in obtaining a judicial bypass were clearly
illustrated by Ms. Billie Lominick during her testimony before
the Subcommittee on the Constitution. Ms. Lominick was a 63-
year old grandmother who helped a pregnant minor from a
physically and sexually abusive household cross state lines to
obtain an abortion. Ms. Lominick testified that her assistance
was essential because the minor was unable to find any judge in
her home state of South Carolina who would hear her judicial
bypass petition.\8\
---------------------------------------------------------------------------
\6\ See Patricia Donovan, ``Judging Teenagers: How Minors Fare When
They Seek Court- Authorized Abortions,'' Family Planning Perspectives,
vol. 15, no. 6 (Nov./Dec. 1983): 259. See also Hodgson v. Minnesota,
487 U.S. 417, 475 (1990) (finding that in Minnesota, many judges refuse
even to hear bypass proceedings); In re T.W., 551 So.2d 1186, 1190
(Fla. 1989) (describing how a judge in Florida, after denying a bypass
petition to a teenage girl who was in high school, participated in
extracurricular activities, worked 20 hours a week, and baby-sat
regularly for her mother, suggested that he, as a representative of the
court, had standing to represent the state's interest when the minor
appealed the denial).
\7\ The courts in Massachusetts, Minnesota, and Rhode Island are
not open in the evenings or on weekends. See Patricia Donovan,
``Judging Teenagers: How Minors Fare When They Seek Court-Authorized
Abortions,'' Family Planning Perspectives, vol. 15, no. 6 (Nov./Dec.
1983): 259.
\8\ See Hearing on H.R. 1218 ``The Child Custody Protection Act''
before the Subcomm. on the Constitution of the House Comm. on the
Judiciary 106th Cong. 1st Sess. (1999) (statement of Billie Lominick).
---------------------------------------------------------------------------
Moreover, reliance on the judicial bypass system as an
effective alternative to parental consent understates the
intimidating effect of seeking a court-sanctioned abortion.
Many minors fear that the judicial bypass procedure lacks the
necessary confidentiality. The American Medical Association has
noted that ``because the need for privacy may be compelling,
minors may be driven to desperate measures to maintain the
confidentiality of their pregnancies. . . . The desire to
maintain secrecy has been one of the leading reasons for
illegal abortion deaths since . . . 1973.\9\ Many young women,
faced with the prospect of embarrassment and social stigma
would 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. Young women's
concerns about confidentiality are especially acute in rural
areas. For example, in one case a minor discovered that her
bypass hearing would be conducted by her former Sunday school
teacher.\10\
---------------------------------------------------------------------------
\9\ See Council on Ethical and Judicial Affairs, AMA, ``Mandatory
Parental Consent to Abortion,'' JAMA, vol. 269, no. 1 (Jan. 6, 1993):
83
\10\ See Memphis Planned Parenthood v. Sundquist, No. 3:89-0520,
slip op. at 13 (M.D. Tenn. Aug. 26, 1997); See also Tamar Lewin,
``Parental Consent to Abortion: How Enforcement Can Vary,'' N.Y. Times,
May 29, 1992, p. A1 (describing how a judge in Toledo, Ohio denied
permission to a 17\1/2\ year old woman, an ``A'' student who planned to
attend college and who testified she was not financially or emotionally
prepared for college and motherhood at the same time, stating that the
girl had ``not had enough hard knocks in her life'').
---------------------------------------------------------------------------
The argument has been made by proponents of H.R. 1218 that
in these situations, when judicial bypasses are not functioning
properly, a young woman could seek--and undoubtedly obtain--
relief in federal court. This argument ignores the facts. In
Cleveland Surgi-Center v. Jones,\11\ Planned Parenthood and
other abortion providers in the Akron area brought suit
alleging that Ohio's judicial bypass procedure produced a
series of factually incorrect and arbitrary results.\12\
Despite the arbitrary nature of the decisions by the juvenile
courts in Ohio, the federal court stated that it was a court of
``limited jurisdiction'' that could not review the decisions of
state courts.\13\ The court dismissed the case ``because both
[the Court of Appeals] and the District Court are without
jurisdiction to provide plaintiffs with the relief that they
seek, namely the review of arbitrary state court decisions.''
\14\ Accordingly, it is not the case that judicial bypass
procedures are meaningful and effective, nor is it the case
that, when they are not, the federal courts will provide
relief.
---------------------------------------------------------------------------
\11\ 2 F.3d 686 (6th Cir. 1993).
\12\ For example, a nearly-18-year-old minor petitioned for a
waiver because she did not wish to discuss the matter with her parents.
The juvenile court found that her reluctance to discuss the issue with
her parents was, itself, evidence that she was not mature enough to
make the decision as to whether to have an abortion. This example
demonstrates that, at least for this judge, any minor who sought a
bypass rather than discuss the matter with her parent could never
obtain one--thereby defeating a central purpose of a judicial bypass.
\13\ See Cleveland Surgi-Center, 2 F.3d at 691.
\14\ Id.
---------------------------------------------------------------------------
II. H.R. 1218 is Anti-Family
H.R. 1218 is hostile to the well-being of families. Despite
proponents' belief that H.R. 1218 would enforce parents' right
to counsel their daughters, the reality is that it is
impossible to legislate complex family relationships. Studies
reveal that more than half of all young women who do not
involve a parent in a decision to terminate a pregnancy choose
to involve another trusted adult, who is very often a
relative.\15\ Although the bill excepts parents from criminal
and civil liability, even non-parent adults who are raising a
child will be swept in by the bill's prohibitions. This is
because the exception is excessively narrow and refers only to
a parent or guardian; a legal custodian; or a person designated
by a state's parental involvement law as a person to whom
notification, or from whom consent, is required.\16\ The
Majority rejected amendments that would have excepted other
family members--such as a grandparent, step- parent, an aunt,
an uncle, a foster parent, or an adult sibling.\17\ The
Majority also refused to grant an exception where a parent has
engaged in an incestuous relationship with the minor. The
absence of such an exception locks victims of incest into
requiring consent from the incestuous parent.
---------------------------------------------------------------------------
\15\ See Henshaw. at 207.
\16\ H.R. 1218, proposed 18 U.S.C. Sec. 2431(e).
\17\ Of the 39 states with parental involvement laws, only Illinois
and South Carolina openly allow consent or notice to a grandparent. See
``Who Decides? A State-By-State Review of Abortion And Reproductive
Rights,'' National Abortion Rights Action League, pp. 154-5, (1998).
Ohio allows notice to a grandparent, step-parent or adult sibling under
certain circumstances.
---------------------------------------------------------------------------
The bill also illogically allows for civil actions between
family members by authorizing lawsuits to be brought by parents
suffering ``legal harm'' against any person assisting a minor
in obtaining an abortion across state lines. The legislation is
so broad that even a person who committed rape or incest
towards his own daughter is permitted to bring a lawsuit
seeking compensation under H.R. 1218.
H.R. 1218 does nothing to help build open, trusting
relationships between family members. The net result will be
the exact opposite of the drafter's intent--weakening family
communications and creating suspicion and mistrust among close
family members.
III. H.R. 1218 is Dangerously Over Broad
Supporters of this bill claim to be targeting predatory
individuals who force and coerce a minor into obtaining an
abortion. However, the net cast by this bill is far broader and
more problematic.
The legislation includes a criminal penalty against 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.'' \18\ In other words, this
law makes it a federal crime to assist a pregnant minor to
obtain a lawful abortion without any intention to avoid state
parental consent laws. Anyone simply transporting a minor--a
bus driver, taxi driver, family member or friend--could be
jailed for up to a year or fined or both. 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.
---------------------------------------------------------------------------
\18\ H.R. 1218, proposed 18 U.S.C. Sec. 2431.
---------------------------------------------------------------------------
The supporters of this bill inaccurately compare it to the
Mann Act, which prohibits the transport of ``any individual
under the age of 18 years in interstate or foreign commerce, or
in any Territory or Possession of the U.S., with intent that
such individual engage in prostitution, or in a sexual activity
for which any person can be charged with a criminal offense. .
.'' \19\ The Mann Act, like most other criminal laws, contains
a mens rea component, that requires that criminally liable
individuals have an intention to break the law. A person
convicted of possessing stolen property, for example, must know
or have reason to know that the property they possess is
stolen. H.R. 1218 has no such intent requirement and,
therefore, imposes strict criminal liability for anyone in
violation.\20\ Where the Mann Act purports to guard against
corruption of minors, a laudable but not constitutionally-
protected purpose, H.R. 1218 imposes significant restrictions
on a constitutionally-protected right to an abortion. Thus, it
seems to us that the analogy is at best weak.
---------------------------------------------------------------------------
\19\ 18 U.S.C. Sec. 2421.
\20\ The affirmative defense available in H.R. 1218 does not
address this problem.
---------------------------------------------------------------------------
For example, a nurse at a clinic providing directions to a
minor or her driver could be convicted as an accessory under
this legislation. A doctor who procures a ride home for a minor
and the person accompanying her because of car troubles coupled
with the minor's expressed fear of calling her parents for
assistance could be convicted as an accessory after the fact. A
sibling of the minor who merely agrees to transport a minor
across state lines without any knowledge of any intent to evade
the resident state's parental consent or notification laws
could be thrown in jail and convicted of a conspiracy to
violate this statute.
The civil liability provisions of this bill create a
blanket federal cause of action for a parent who suffers
``legal harm'' as a result of his or her child being
transported across state lines, and would further chill family
and doctor/patient relations. Agency law principles would
enable an ``aggrieved'' parent to sue medical facilities,
doctors, nurses, taxi drivers, relatives, ministers, and anyone
else providing assistance to a minor being transported across
state lines to obtain an abortion. Not only would the civil
liability provision subject virtually everyone assisting a
minor to civil lawsuits, it would subject everyone else the
minor comes in contact with to the rules of discovery. 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.
IV. H.R. 1218 Is Likely Unconstitutional
By imposing substantial new obstacles and dangers in the
path of a minor seeking an abortion, H.R. 1218 also raises a
number of serious constitutional concerns. First, if enacted,
H.R. 1218 would violate the rights of states to enact and
enforce their own laws governing conduct within their
territorial boundaries, as well as the rights of residents of
different states to travel to and from any state of the Union
for lawful purposes. As Professors Laurence Tribe of Harvard
Law School and Peter Rubin of Georgetown University Law Center
explained, ``[H.R. 1218] amounts to a statutory attempt to
force this most vulnerable class of young women to carry the
restrictive laws of their home states strapped to their backs,
bearing the great weight of those laws like the bars of a
prison that follows them wherever they go (unless they are
willing to go alone).'' \21\
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\21\ Memorandum to the Comm. on the Judiciary from Laurence H.
Tribe, Ralph S. Tyler Professor of Constitutional Law, Harvard
University and Peter J. Rubin, Visiting Associate Professor of Law,
Georgetown University, at 2.
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One of the fundamental principles of our federal system is
that a state may not project its laws into other states.
Crossing the border into another state, which every citizen has
a right to do, permits the traveler temporarily to shed her
home state's laws regulating primary conduct in favor of the
laws of the state that she is visiting. H.R. 1218 undermines
this principle, and, in essence states that individuals may
indeed be bound by the laws of their home states even as they
traverse the nation by traveling to other states with very
different laws.
Proponents of H.R. 1218 attempt to respond to this claim by
stating that the legislation actually strengthens federalism,
by allowing states to enforce their laws more effectively.
However, we have seen no effort by the Majority to empower
states to enforce their own gun, gambling, sales tax, or fraud
laws against residents who cross state lines to take advantage
of the laws of other states. Instead we face another
shortsighted effort to politicize a tragic family dilemma,
while doing nothing to respond to the underlying problem of
teen pregnancies or dysfunctional families.
The Supreme Court has clearly and consistently held that
states cannot prohibit the lawful out-of-state conduct of their
citizens, nor may they impose criminal sanctions on this
behavior, as H.R. 1218 does.\22\ The Court recently reaffirmed
this principle in its recent landmark right to travel decision,
Saenz v. Roe.\23\ In its decision, the Court held that, even
with congressional approval, California's attempt to impose on
recently-arrived residents the welfare laws of their former
states of residence was an unconstitutional penalty upon their
right to interstate travel.\24\ The decision also reaffirmed
that the constitutional right to travel under the Privileges
and Immunities Clause of Article IV, Sec. 2, provides a similar
type of protection to a non-resident who enters a state with
the intent eventually to return to her home state.\25\
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\22\ See, e.g., Healy v. Beer Inst., 491 U.S. 324, 336 n.13 (1989)
(quoting Edgar v. Mite Corp., 457 U.S. 624, 643 (1982) (plurality
opinion), (quoting Shaffer v. Heitner, 433 U.S. 186, 197 (1977) ``[T]he
limits on a State's power to enact substantive legislation are similar
to the limits on the jurisdiction of state courts. In either case, `any
attempt ``directly'' to assert extraterritorial jurisdiction over
persons or property would offend sister States and exceed the inherent
limit of the State's power.' '')).
\23\ 119 S. Ct. 1518, 1525-1527 (1999) (describing the various
components of the right to travel and their constitutional
derivations).
\24\ See id. at 1526-1527.
\25\ See id.
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This principle applies to minors' rights to seek an
abortion on non-discriminary terms as well as to welfare
benefits. In Saenz, the Court specifically referred to Doe v.
Bolton,\26\ which held that, under Article IV of the
Constitution, a state may not restrict the ability of visiting
non-residents to obtain abortions on the same terms and
conditions under which they are made available by law to state
residents: ``[T]he Privileges and Immunities Clause, Const.
Art. IV, Sec. 2, protects persons . . . who enter [a state]
seeking the medical services that are available there.'' \27\
It also is clear that such protections will flow to minors
given that Planned Parenthood v. Danforth \28\ held that
pregnant minors have a constitutional right to choose whether
to terminate a pregnancy.
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\26\ 410 U.S. 179.
\27\ Id. at 200.
\28\ 428 U.S. 52, 74 (1976).
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Finally, we would note that, in addition to these clear-cut
constitutional problems, others have observed that the bill may
well violate other constitutional requirements. For example,
the ACLU, Professor Tribe and others have opined that the bill
also contains an inadequate life exception and lacks any health
exception, in possible abrogation of Roe v. Wade and its
progeny.\29\ Additionally, the bill may impose an ``undue
burden'' on the right to choose an abortion.\30\ The Center for
Reproductive Law & Policy also has written that H.R. 1218
violates the First Amendment's right to associate as well as
the Equal Protection Principle of the Fifth Amendment.\31\
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\29\ The ACLU points to Planned Parenthood v. Casey, 505 U.S. 833,
880 (1992) (holding that all abortion regulations must contain a valid
medical emergency exception ``for the essential holding of Roe forbids
a State from interfering with a woman's choice to undergo an abortion
procedure if continuing her pregnancy would constitute a threat to her
health). H.R. 1218 only provides an exception to its penalties when the
abortion is ``necessary to save the life of a minor because her life
was endangered by a physical disorder, physical injury, or physical
illness, including a life-endangering physical condition caused by or
arising from pregnancy itself.'' See also Letter from Laurence H. Tribe
to Members of the Senate Judiciary Committee at 1 (June 23, 1998)
(hereinafter Tribe Letter).
\30\ See Tribe Letter.
\31\ See ``Statement of the Center for Reproductive Law & Policy In
Opposition to the ``Child Custody Protection Act,'' H.R. 1218, June 21,
1999 (stating that H.R. 1218 violates the First Amendment Right to
Associate by criminalizing the association between a minor and another
person for the purpose of effectuating the minor's right to choose
abortion and arguing that H.R. 1218 violates the Equal Protection
Principle of the Fifth Amendment by impermissibly classifying among
minors being transported across state lines as well as among
individuals transporting them).
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Conclusion
H.R. 1218 does nothing to make abortion less necessary,
only more dangerous. It will not accomplish its policy purposes
of encouraging parental involvement and takes the wrong
approach to the problem of teenage pregnancy. It does nothing
to increase teen awareness of the dangers of premarital sex.
The bill preys on the problems of dysfunctional families where
children cannot confide in their parents or fear physical harm
when they do. The bill does nothing to stop a teenager from
actually 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 isolate children in this way. Because H.R. 1218
is a burdensome attack on the rights and well-being of young
women, we dissent from this legislation.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
Tammy Baldwin.
Barney Frank.
Robert C. Scott.
Maxine Waters.
William D. Delahunt.
Steven R. Rothman.
Anthony D. Weiner.