[House Report 107-397]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-397
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CHILD CUSTODY PROTECTION ACT
_______
April 11, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 476]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 476) 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.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 25
Committee Consideration.......................................... 25
Vote of the Committee............................................ 25
Committee Oversight Findings..................................... 28
Performance Goals and Objectives................................. 28
New Budget Authority and Tax Expenditures........................ 28
Congressional Budget Office Cost Estimate........................ 28
Constitutional Authority Statement............................... 29
Section-by-Section Analysis and Discussion....................... 30
Changes in Existing Law Made by the Bill, as Reported............ 31
Markup Transcript................................................ 33
Dissenting Views................................................. 73
Purpose and Summary
H.R. 476, the ``Child Custody Protection Act''(CCPA), 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. 476 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 1 year.
H.R. 476, 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. 476, is
designed to effectuate State laws which safeguard minor girls'
physical and emotional health by ensuring parental involvement
in their abortion decisions.
H.R. 476 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. 476 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
There is widespread agreement among abortion rights
advocates and pro-life advocates that it is the parents of a
pregnant minor who are best suited to provide her counsel,
guidance, and support as she decides whether to continue her
pregnancy or to undergo an abortion. Organizations such as
Planned Parenthood, the National Abortion and Reproductive
Rights Action League, and the National Abortion Federation all
advise pregnant minors to consult their parents before
proceeding with an abortion.\1\ In addition, the American
Medical Association urges physicians to ``strongly encourage
minors to discuss their pregnancy with their parents'' and to
``explain how parental involvement can be helpful and that
parents are generally very understanding and supportive.'' \2\
The AMA continues: ``If a minor expresses concerns about
parental involvement, the physician should ensure that the
minor's reluctance is not based on any misperceptions about the
likely consequences of parental involvement.'' \3\
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\1\ ``Few would deny that most teenagers, especially younger ones,
would benefit from adult guidance when faced with an unwanted
pregnancy. Few would deny that such guidance ideally should come from
the teenager's parents.'' Planned Parenthood Federation of America,
Inc., Fact Sheets: Teenagers, Abortion, and Government Intrusion Laws,
at http://www.plannedparenthood.org/library/ABORTION/laws.html (last
visited Jan. 29, 2002); ``Responsible parents should be involved when
their young daughters face a crisis pregnancy.'' National Abortion and
Reproductive Rights Action League, Minors' Issues: Reproductive Choice
Issues, at http://www.naral.org/issues/issues--minors.html (last
visited Aug. 30, 2001); ``Ordinarily it's a good idea for teens to
involve their parents. . . .'' National Abortion Federation, Having An
Abortion? Your Guide to Good Care, at http://www.prochoice.org/
default6.htm (last visited Aug. 30, 2001).
\2\ Council on Ethical and Judicial Affairs, American Medical
Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 83
(1993) (opposing laws mandating parental involvement on the basis that
such laws may expose minors to physical harm, or compromise ``the
minor's need for privacy on matters of sexual intimacy.'')
\3\ Id.
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A total of 43 States have enacted some form of a parental
involvement statute.\4\ The implementation of seven of these 43
State statutes has been enjoined by courts as violating either
Federal or State constitutional protections.\5\ Another nine of
these 43 State statutes are written merely to encourage the
pregnant minor to consult with her parents, another relative,
or another third party designated by statute before she decides
to undergo an abortion but do not require the minor to obtain
either consent or notice prior to obtaining an abortion.\6\ The
remaining 27 States require a parent to either be notified of a
minor daughter's intention to undergo an abortion or to consent
to the performance of an abortion on a minor daughter (subject
to judicial bypass procedures).
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\4\ See Ala. Code Sec. Sec. 26-21-1 to -8 (1992 & Supp. 1999);
Alaska Stat. Sec. Sec. 18.16.010-030 (Michie 1998); Ariz. Rev. Stat.
Ann. Sec. 36-2152 (West 1993 & Supp. 1999); Ark. Code Ann.
Sec. Sec. 20-16-801 to -808 (Michie 2000); Cal. Health & Safety Code
Sec. 123450 (West 1996 & Supp. 1999); Colo. Rev. Stat. Ann.
Sec. Sec. 12-37.5-101 to -108 (West Supp. 1999); Conn. Gen. Stat. Ann.
Sec. 19(a)-601 (West 1997); Del. Code Ann. tit. 24, Sec. Sec. 1780-
1789B (1997); Fla. Stat. Ann. Sec. 390.01115 (West Supp. 2000); Ga.
Code Ann. Sec. Sec. 15-11-110 to -118 (Harrison 1998); Idaho Code
Sec. 18-609(6) (1997); 750 Ill. Comp. Stat. 70/1-70/99 (West 1999);
Ind. Code Ann. Sec. Sec. 16-18-2-267, 16-34-2-4 (West 1997); Iowa Code
Ann. Sec. Sec. 135L.1-8 (West 1997 & Supp. 2000); Kan. Stat. Ann.
Sec. 65-6705 (1992 & Supp. 1999); Ky. Rev. Stat. Ann. Sec. 311.732
(Michie 1995 & Supp. 1998); La. Rev. Stat. Ann. Sec. 40:1299.35.5 (West
1992 & Supp. 2000); Me. Rev. Stat. Ann. tit. 22, Sec. 1597-A (West 1992
& Supp. 1999); Md. Code Ann., Health-Gen. Sec. 20-103 (1996); Mass.
Ann. Laws ch. 112, Sec. 12s (Law. Co-op. 1991 & Supp. 2000); Mich.
Stat. Ann. Sec. Sec. 25.248 (101)-(109) (Law. Co-op. 1999 & Supp.
2000); Minn. Stat. Ann. Sec. 144.343 (West 1998); Miss. Code Ann.
Sec. Sec. 41-41-51 to -63 (1993 & Supp. 1998); Mo. Ann. Stat.
Sec. Sec. 188.015, 188.028 (West 1996 & Supp. 2000); Mont. Code Ann.
Sec. Sec. 50-20-201 to -215 (1999); Neb. Rev. Stat. Sec. Sec. 71-6901
to -6909 (1996); Nev. Rev. Stat. Sec. Sec. 442.255-.257 (2000); N.J.
Stat. Ann. Sec. Sec. 9:17A-1 to -1.12 (West 1993 & Supp. 2000); N.M.
Stat. Ann. Sec. Sec. 30-5-1 to -3 (Michie 2000); N.C. Gen. Stat.
Sec. Sec. 90-21.6 to .10 (1999); N.D. Cent. Code Sec. Sec. 14-02.1 to
03.1 (1997); Ohio Rev. Code Ann. Sec. 2919.12 (Anderson 1996); 18 Pa.
Cons. Stat. Ann. Sec. 3206 (West 1983 & Supp. 2000); R.I. Gen. Laws
Sec. 23-4.7-6 (1996); S.C. Code Ann. Sec. Sec. 44-41-30 to -37 (Law.
Co-op. 1985 & Supp. 1999); S.D. Codified Laws Sec. 34-23A-7 (Michie
1994 & Supp. 1999); Tenn. Code Ann. Sec. 37-10-301 to -304 (1996 &
Supp. 1999); Tex. Fam. Code Ann. Sec. 33.001-.004 (Vernon Supp. 2000);
Utah Code Ann. Sec. 76-7-304 (1999); Va. Code Ann. Sec. 16.1-241(D)
(Michie 1999 & Supp. 2000); W. Va. Code Sec. Sec. 16-2F-1 to -8 (1998);
Wis. Stat. Ann. Sec. 48.375 (West 1997); Wyo. Stat. Ann. Sec. 35-6-118
(Michie 1999).
\5\ See Planned Parenthood of Rocky Mountain Services Corp. v.
Owens, 107 F. Supp.2d 1271 (D. Colo. 2000) (medical emergency exception
in parental notice statute impermissibly narrow); Glick v. McKay, 616
F. Supp. 322, 327 (D. Nev. 1985) (enjoining Nevada's parental notice
statute for its failure to ensure that bypass petitions are reviewed
``with sufficient expedition to provide an effective opportunity for an
abortion to be obtained''), aff'd, 937 F.2d 434 (9th Cir. 1991);
American Acad. of Pediatrics v. Lungren, 940 P.2d 797, 800 (Cal. 1997)
(parental consent statute violated State constitutional right to
privacy); Planned Parenthood of Central New Jersey v. Farmer, 762 A.2d
620 (N.J. 2000) (parental notification law with judicial waiver
violates State constitution); Zbaraz v. Ryan, No. 84 C 771 (Ill.
Supreme Ct. refused to issue rules implementing Ill. Stat.); Wicklund
v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (parental
notification law violated State constitution) available at http://
www.mtbizlaw.com/1stjd99/WICKLUND--2--11.htm. The New Mexico statute
was ruled unconstitutional by the State attorney general. N.M. Ag. Op.
90-19, 1990 WL 509-590. Four States are currently involved in
litigation challenging their parental involvement statutes. An Arizona
Federal district court upheld the constitutionality of Arizona's
parental consent law on August 8, 2001. See Planned Parenthood of S.
Ariz. v. Lawall, No. CV00-386-TUC-RCC (D. Ariz. Filed Aug. 9, 2001).
According to news reports, however, enforcement of the law was stayed
on September 13, 2001, pending an appeal to the Ninth Circuit Court of
Appeals. See Court Stays ``Parental Consent'' Abortion Law, Associated
Press, Sept. 15, 2001. The Alaska Supreme Court has reversed a trial
court determination that the parental consent law violates the State
constitution, and returned the case to the trial court in order to
allow the State an opportunity to establish that the law serves a
compelling State interest by narrowly tailored means. See State v.
Planned Parenthood of Alaska, 2001 WL 1448754 at *10 (Alaska 2001). A
Florida intermediate appellate court has upheld the Florida parental
notification law as constitutional. State v. N. Fla. Women's Health and
Counseling Service, Nos. 1D00-1983, 1D00-2106, 2001 WL 111037 (Fla.
App. 1 Dist., 2001). The Florida Supreme Court has agreed to review
this ruling. See N. Fla. Women's Health & counseling Service v. State,
2001 WL 402634 (Fla. 2001). A Federal court upheld the consent
provisions of Idaho's parental involvement law but struck as
unconstitutional two of its provisions, one of which required a minor
girl to pursue a judicial bypass in either her home county or the
county within which the abortion is to be performed and another
requiring doctors to notify a minor girl's parents within 24 hours of
performing an emergency abortion on her without having obtained
parental consent. See Mark Warbis, Federal Judge Upholds Law But
Strikes Down Some Elements, Associated Press, Dec. 20, 2001.
\6\ See Conn. Gen. Stat. Ann. Sec. 19(a)-601 (stating that the
abortion provider need only discuss the possibility of parental
involvement); Del. Code Ann. tit. 24, Sec. 1783(a) (allowing notice to
a licensed mental health professional not associated with an abortion
provider); Kan. Stat. Ann. Sec. 65-6705(j) (allowing a physician to
bypass parental notice in cases where the physician determines that an
emergency exists that threatens the ``well-being'' of the minor); Me.
Rev. Stat. Ann. tit. 22, Sec. 1597-A(2) (allowing a minor to give
informed consent after counseling by the abortion provider); Md. Code
Ann., Health-Gen. Sec. 20-103(c) (allowing a physician to determine
that parental notice is not in the minor's best interest); Ohio Rev.
Code Ann. Sec. 2919.12 (stating that notice may be given to a brother,
sister, step-parent, or grandparent if certain qualifications are met);
Utah Code Ann. Sec. 76-7-304 (stating that a physician need notify only
if possible); W. Va. Code Sec. 16-2F-1 (stating physician not
affiliated with an abortion provider may waive the notice requirement);
Wis. Stat. Ann. Sec. 48-375 (stating that the notice may be given to
any adult family member).
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Despite widespread support for parental involvement laws
and clear public policy considerations justifying such laws,
however, there exists substantial evidence that they are
frequently circumvented by adults who transport minors to
abortion providers in States that do not have parental
notification or consent laws.\7\ The purpose of the CCPA is to
curb the interstate circumvention of these laws, thereby
protecting the rights of parents and the interests of
vulnerable minors. The CCPA is not a Federal parental
involvement law; it merely ensures that these State laws are
not evaded through interstate activity. As such, it reinforces
the policy decisions of those States that have chosen to enact
constitutionally-sound parental involvement laws. Parental
involvement in the abortion decisions of minor girls will lead
to improved medical care for minors seeking abortions and
provide increased protection for young girls against sexual
exploitation by adult men. The Supreme Court has observed that,
``[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'' \8\ and ``[i]t
seems unlikely that [the minor] will obtain adequate counsel
and support from the attending physician at an abortion clinic,
where abortions for pregnant minors frequently take place.''
\9\ Thus, Federal legislation is warranted due to the scope of
the practice of avoiding such laws by transporting minors
across State lines and the profound physical and psychological
risks of an abortion to a minor.
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\7\ An October 3, 2000, nationwide poll conducted by Zogby
International found that 66 percent of those surveyed believed that
doctors should be ``legally required to notify the parents of a girl
under the legal age who requests an abortion.'' Zogby International,
``Associated Television News Announces Bush Overwhelms Gore on
Presidential Campaign's Major Public Policy Issues'', Oct. 8, 2000, PR
Newswire 13:17:00. A Kaiser Family Foundation/MTV Survey of 603 people
ages 18-24 found that 68% favored laws requiring parental consent prior
to performance of an abortion on girls under 18. Kaiser Family
Foundation New National Survey of 18- to 24-year-olds on Hot Button
Political Issues, U.S. Newswire, Oct. 10, 2000, 2000 WL 26849324. A CBS
News/NY Times Poll, released Jan. 15, 1998, found that 78% of those
polled favor requiring parental consent before a girl under 18 years of
age could have an abortion. 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.
\8\ H.L. v. Matheson, 450 U.S. 398, 411 (1981).
\9\ Planned Parenthood v. Danforth, 428 U.S. 52, 91 (1976).
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At hearings during the 105th, 106th, and 107th 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.\10\ 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.\11\ After 2 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.\12\
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\10\ See Child Custody Protection Act: Hearings on H.R. 476 Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary,
107th Cong. (Sept. 6, 2001) (statement of Eileen Roberts).
\11\ 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.
\12\ 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.\13\ The hospital
called Ms. Roberts and told her that they could not do
reparative surgery without a signed consent form.\14\ The
following year, Ms. Robert's daughter developed an infection
and was diagnosed with having pelvic inflammatory disease,
which again required a 2-day hospitalization for antibiotic
therapy and a signed consent form.\15\ Ms. Roberts and her
family were responsible for over $27,000 in medical costs all
of which resulted from this one secret abortion.\16\
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\13\ See id.
\14\ See id.
\15\ See id.
\16\ 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.\17\
In the words of Joyce Farley, the abortion was arranged to
destroy evidence--evidence that her 12-year-old daughter had
been raped.\18\ 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).\19\ Following the abortion, the mother of the
rapist dropped off the child in another town 30 miles from the
child's home.\20\ The child returned to her home with severe
pain and bleeding which revealed complications from an
incomplete abortion.\21\ 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.\22\ Fortunately, Ms. Farley, being a nurse, knew this
advice was wrong and could be harmful, but her daughter would
not have known this.\23\ Because of her mother's intervention,
Ms. Farley's daughter ultimately received further medical care
and a second procedure to complete the abortion.\24\
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\17\ 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).
\18\ See id.
\19\ See id.
\20\ See id.
\21\ See id.
\22\ See id.
\23\ See id.
\24\ 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 this bill 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.''\25\ Just last August, New Jersey's Star-
Ledger reported that Laurie Lowenstein, Executive Director of
Right to Choose, an abortion rights advocacy group, stated that
she would quit her job to shuttle pregnant young girls to
States without parental notification laws if New Jersey enacted
a parental notification law.\26\ Only Congress, with its
constitutional authority to regulate interstate commerce, can
curb such flagrant disregard of State laws.
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\25\ Labor of Love is Deemed Criminal, The National Law Journal,
Nov. 11, 1996, at A8.
\26\ Jeff Whelan, McGreevey Reveals Latest Abortion Stance, The
Star-Ledger, Aug. 30, 2001, available at http://www.nj.com/news/ledger/
index.ssf?elections/ledger/1440ef7.html (last visited on Aug. 30,
2001).
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Pennsylvania
Since Pennsylvania's current parental consent law took
effect in March 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 teenagers, 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.'' \32\ 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.
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\32\ Copies of these advertisements are attached.
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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. 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. Furthermore, compared to older women,
underage girls were significantly more likely to travel out of
State to have their abortions.\33\
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\33\ 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.
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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.\34\ 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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\34\ 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 1981, according
to a published study and anecdotal information.\35\ A 1986
study published in the American Journal of Public Health found
that in the 4 months prior to implementation of the parental
consent law, an average of 29 Massachusetts minors obtained
out-of-State abortions each month (in Rhode Island, New
Hampshire, Connecticut, and New York--data for Maine was not
available).\36\ 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.\37\
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\35\ The Massachusetts law was changed in 1997 to require the
consent of one parent (or judicial authorization), rather than both
parents as previously required.
\36\ 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.
\37\ 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.' '' \38\
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\38\ Id. at 399.
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In April 1991, the Planned Parenthood League of
Massachusetts estimated that approximately
1,200 Massachusetts minor girls travel out of State for
abortions each year, the majority of them to New Hampshire.
Planned Parenthood said that surveys of New Hampshire clinics
revealed an average of 100 appointments per month by
Massachusetts minors.\39\
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\39\ See M.A.J. McKenna, Mass. abortion laws push teens over
border, Boston Herald, April 7, 1991, at A1.
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Mississippi
A 1995 study of the effect of Mississippi's parental
consent law revealed that Mississippi has also experienced an
increase in the number of minors traveling out of State for
abortion. The study, published in Family Planning Perspectives,
compared data for the 5 months before the parental consent law
took effect in June 1993, with data for the 6 months after it
took effect, and found that ``[a]mong Mississippi residents
having an abortion in the State, the ratio of minors to older
women decreased by 13%. . . . 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.'' \40\ 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.''
\41\
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\40\ Stanley K. Henshaw, The Impact of Requirements for Parental
Consent on Minors' Abortions in Mississippi, Family Planning
Perspectives, June, 1995, at 121.
\41\ Id. at 122.
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Virginia
Grace S. Sparks, executive director of the Virginia League
of Planned Parenthood, predicted in February 1997 that if
Virginia were to pass a parental notification law, teenagers
would travel out of State for abortions. ``In every State where
they've passed parental notification, . . . there's been an
increase in out-of-State abortions,'' she said, adding, ``I
suspect that that's what will happen in Virginia, that
teenagers who cannot tell their parents . . . will go out of
State and have abortions. . . .'' \42\
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\42\ 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 5 months that the
law was in effect (from 903 abortions during the same time
period in 1996 to approximately 700 abortions in 1997).\43\ The
article suggests, however, that Virginia teenagers are
traveling to the District of Columbia in order to obtain an
abortion without involving their parent. In fact, the National
Abortion Federation (NAF), which runs a toll-free national
abortion hotline, said that calls from Virginia teenagers
seeking information on how to obtain an abortion out-of-State
were the largest source of teenage callers seeking out-of-State
abortions, at seven to 10 calls per day. NAF hotline operator
Amy Schriefer has gone so far as to talk a Richmond area
teenage girl through the route (involving a Greyhound bus and
the Metro's Red Line) to obtain an abortion in the District of
Columbia.
---------------------------------------------------------------------------
\43\ Ellen Nakashima, Fewer Teens Receiving Abortions In Virginia,
The Washington Post, March 3, 1998.
---------------------------------------------------------------------------
The Federal Role in Protecting Minors From
Interstate Transportation in Circumvention of
State 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 by transporting minors across State lines and the profound
physical and psychological risks of an abortion to a minor. The
Supreme Court has observed that, ``[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,'' \44\ and ``[i]t seems unlikely that [the minor]
will obtain adequate counsel and support from the attending
physician at an abortion clinic, where abortions for pregnant
minors frequently take place.'' \45\ Parental involvement in
such a decision will lead to improved medical care for minors
seeking abortions and provide increased protection for young
girls against sexual exploitation by adult men.
---------------------------------------------------------------------------
\44\ H.L. v. Matheson, 450 U.S. 398, 411 (1981).
\45\ Planned Parenthood v. Danforth, 428 U.S. 52, 91 (1976).
---------------------------------------------------------------------------
Improved Medical Care of Minor Girls
The medical care that minors seeking abortions receive is
improved when their parents are involved in three ways. First,
parental involvement allows parents to assist their daughter in
the selection of a competent abortion provider. With all
medical procedures, one of the most reliable means of
guaranteeing patient safety is the professional competence of
the physician performing the procedure. In Bellotti v. Baird,
the United States Supreme Court acknowledged that parents
posses a much greater ability to evaluate and select competent
healthcare providers than their minor children often do:
In this case, however, we are concerned only with minors
who, according to the record, range in age from children of
twelve years to 17-year-old teenagers. Even the later are less
likely than adults to know or be able to recognize ethical,
qualified physicians, or to have the means to engage such
professionals. Many minors who bypass their parents probably
will resort to an abortion clinic, without being able to
distinguish the competent and ethical from those that are
incompetent or unethical.\46\
---------------------------------------------------------------------------
\46\ Bellotti v. Baird, 443 U.S. 622 at 641 n.21 (1979) (Bellotti
II).
---------------------------------------------------------------------------
The Court's concern for that ability of minors to
distinguish between competent and ethical abortion providers is
particularly well justified in States where non-physicians are
allowed, by statute, to perform abortions. The National
Abortion Federation recommends that patients seeking an
abortion confirm that the abortion will be performed by a
licensed physician in good standing with the State Board of
Medical Examiners, and that he or she have admitting privileges
at a local hospital not more than twenty minutes away from the
location where the abortion is to occur.\47\ A well-informed
parent seeking to guide her child is more likely to inquire
into the qualifications of the person performing the abortion,
and the availability of a physician with local admitting
privileges, than an emotionally vulnerable young girl faced
with pregnancy.
---------------------------------------------------------------------------
\47\ See National Abortion and Reproductive Rights Action League,
Minors' Issues: Reproductive Choice Issues, at http://www.naral.org/
issues/issues--minors.html (last visited Aug. 30, 2001).
---------------------------------------------------------------------------
Second, parental involvement will insure that parents have
the opportunity to provide additional medical history and
information to abortion providers prior to performance of the
abortion.
The medical, emotional, and psychological consequences
of an abortion are serious and can be lasting; this is
particularly so when the patient is immature. An
adequate medical and psychological case history is
important to the physician. Parents can provide such
information for their daughter as well as any pertinent
family medical history, refer the physician to other
sources of medical history, such as family physicians,
and authorize family physicians to give relevant
data.\48\
---------------------------------------------------------------------------
\48\ H.L. v. Matheson, 450 U.S. 398 at 411 (1981). Accord Ohio v.
Akron Ctr. For Reproductive Health, 497 U.S. 502, 518-19 (1990).
Take, for example, the story of Sandra, a 14-year-old girl who
committed suicide shortly after obtaining an abortion.\49\
Sandra's mother, who learned of her daughter's abortion only
after her suicide, sued the abortion provider at which Sandra's
abortion was performed, asserting that her daughter's death was
due to the failure of the abortion provider to obtain a
psychiatric history or monitor Sandra's mental health.\50\ The
court concluded that Sandra was not insane at the time she
committed suicide and, therefore, her actions broke the chain
of causation required for recovery.\51\ Yet, evidence was
presented that Sandra had a history of psychological illness,
and that her behavior was noticeably different after the
abortion.\52\ If Sandra's mother had been aware of her
daughter's abortion, she would have had the opportunity to
notify the abortion provider of Sandra's psychological history
and steps could have been taken to minimize the psychological
effect of the abortion on Sandra's already fragile mental
state.
---------------------------------------------------------------------------
\49\ See Edison v. Reproductive Health Services, 863 S.W.2d 621
(Mo. App. E.D. 1993).
\50\ See id. at 624.
\51\ See id. at 628.
\52\ See Edison v. Reproductive Health Services, 863 S.W.2d 621
(Mo. App. E.D. 1993).
---------------------------------------------------------------------------
A more complete and thus more accurate medical history of
the patient will enable abortion providers to disclose not only
medical risks that ordinarily accompany abortions but also
those risks that may be specific to the pregnant minor.
Parental involvement will provide an adult with the opportunity
to advise and assist the girl in giving her informed consent to
the procedure.
The third way in which parental involvement will improve
medical treatment of pregnant minors is by insuring that
parents have adequate knowledge to recognize and respond to any
post-abortion complications that may develop.\53\ Although it
is often claimed that abortion is one of the safest surgical
procedures performed today, the actual rate of many of the
complications associated with it are simply unknown: ``The
abortion reporting systems of some countries and States in the
United States include entries about complications, but these
systems are generally considered to underreport infections and
other problems that appear some time after the procedure was
performed.'' \54\ Furthermore, women typically have no pre-
existing relationship with an abortion provider,\55\ which
likely accounts for the fact that only about one-third return
to the provider for their post-operative exam.\56\ Teenagers
are even less likely to return for follow-up appointments.\57\
This failure to return for post-operative exams precludes
discovery of post-abortion complications by abortion providers
and subsequent reporting of these complications. Other
healthcare providers may be reluctant to report any
complications from fear of compromising the secrecy that often
surrounds abortions.
---------------------------------------------------------------------------
\53\ See Ohio v. Akron Ctr. For Reproductive Health, 497 U.S. 502,
519 (1990).
\54\ Stanley K. Henshaw, Unintended Pregnancy and Abortion: A
Public Health Perspective in A Clinician's Guide to Medical and
Surgical Abortions, 20 (Maureen Paul et al., eds. 1999).
\55\ See State of Florida Department of Health v. North Florida
Women's Health and Counseling Service, 2001 WL 111037 at n. 2 (Fla.
App. 1 Dist., Feb 9, 2001):
[E]vidence at trial showed, the physician-patient
relationship is often attenuated in the abortion context,
almost to the point of non-existence. Cf. Planned
Parenthood v. Danforth, 428 U.S. 52, 91, 96 S.Ct. 2831, 49
L.Ed.2d 788 (1976) (``It seems unlikely that [the minor]
will obtain adequate counsel and support from the attending
physician at an abortion clinic, where abortions for
pregnant minors frequently take place. ''). Abortion
patients ordinarily see their physicians only once or
twice, very briefly. Most of their interaction is with the
clinic's staff. Physicians performing abortions often
perform several in the space of a single hour. Id.
---------------------------------------------------------------------------
\56\ Stanley K. Henshaw, Unintended Pregnancy and Abortion: A
Public Health Perspective in A Clinician's Guide to Medical and
Surgical Abortions, 20 (Maureen Paul et al., eds. 1999). Cf. Richard S.
Moon, Why I Don't Do Abortions Anymore, Medical Economics 61(Mar. 4,
1985).
\57\ Parental Notification of Abortion: Hearings on H. 218 Before
the House Comm. on Health and Welfare, 2001-2002 Legis. (Vt.
2001)(Nancy Mosher, President and CEO of Planned Parenthood of Northern
New England on April 16, 2001)(estimating that two-third of Vermont
women keep their follow up appointments, although Ateenagers are
notorious for `no-showing').
---------------------------------------------------------------------------
It is significant that at least one American court has held
that a perforated uterus is a ``normal risk'' associated with
abortion.\58\ Untreated, a perforated uterus may result in an
infection, complicated by fever, endometritis, and
parametritis. According to one study, ``[t]he risk of death
from post-abortion sepsis [infection] is highest for young
women, those who are unmarried, and those who undergo
procedures that do not directly evacuate the contents of the
uterus. . . . A delay in treatment allows the infection to
progress to bacteremia, pelvic abscess, septic pelvic
thrombophlebitis, disseminated intravascular coagulophy, septic
shock, renal failure, and death.'' \59\ Evidence about these
dangers presented at trial persuaded a Florida appellate court
to uphold that State's parental notification law:
---------------------------------------------------------------------------
\58\ Reynier v. Delta Women's Clinic, 359 So.2d 733 (La. Ct. App.
1978). ``All the medical testimony was to the effect that a perforated
uterus was a normal risk, but the statistics given by the experts
indicated that it was an infrequent occurrence and it was rare for a
major blood vessel to be damaged.'' Id. at 738. Frequent injuries from
incomplete abortions are discussed in Swate v. Schiffers, 975 S.W.2d
70, 26 Media L. Rep. 2258 (Tex.App.-San Antonio, 1998) (abortionist
unsuccessful claim of libel against journalist for reports based in
part upon one disciplinary order that doctor had failed to complete
abortions performed on several patients, and that he had failed to
repair lacerations which occurred during abortion procedures) Cf.
Sherman v. District of Columbia Bd. of Medicine, 557 A.2d 943, 944
(D.C. 1989) (``Dr. Sherman placed his patients' lives at risk by using
unsterile instruments in surgical procedures and by intentionally doing
incomplete abortions (using septic instruments) to increase his fees by
making later surgical procedures necessary. His practices made very
serious infections (and perhaps death) virtually certain to occur. Dr.
Sherman does not challenge our findings that his misconduct was willful
nor that he risked serious infections in his patients for money.'').
\59\ Phillip G. Stubblefield and David A. Grimes, Current Concepts:
Septic Abortions, New Eng. J. Med. 310 (Aug. 4, 1994).
The State proved that appropriate aftercare is critical
in avoiding or responding to post-abortion
complications. Abortion is ordinarily an invasive
surgical procedure attended by many of the risks
accompanying surgical procedures generally. If post-
abortion nausea, tenderness, swelling, bleeding, or
cramping persists or suddenly worsens, a minor (like an
adult) may need medical attention. A guardian unaware
that her ward or a parent unaware that his minor
daughter has undergone an abortion will be at a serious
disadvantage in caring for her if complications
develop. An adult who has been kept in the dark cannot,
moreover, assist the minor in following the abortion
provider's instructions for post-surgical care. Failure
to follow such instructions can increase the risk of
complications. As the plaintiffs' medical experts
conceded, the risks are significant in the best of
circumstances. While abortion is less risky than some
surgical procedures, abortion complications can result
in serious injury, infertility, and even death.\60\
---------------------------------------------------------------------------
\60\ State of Florida Department of Health v. North Florida Women's
Health and Counseling Service, 2001 WL 111037 at *6 (Fla. App. 1 Dist.,
Feb 9, 2001).
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.\61\ Cervical injury
is of serious concern because it may predispose the young girl
to adverse outcomes in future pregnancies. Girls 17 or younger
also face a two and a half times greater risk of acquiring
endometriosis following an abortion than do women 20-29 years
old.\62\
---------------------------------------------------------------------------
\61\ 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, New Eng. J. of Med., Sept. 15, 1983, at 621-624.
\62\ See Burkman et al., Morbidity Risk Among Young Adolescents
Undergoing Elective Abortion, Contraception, vol. 30 (1984), at 99-105.
---------------------------------------------------------------------------
The particular risks faced by minors upon whom abortions
are performed were articulated by Dr. Bruce A. Lucero, an
abortionist who performed some 45,000 abortions over the course
of his career. Dr. Lucero, who supported the CCPA in 1998,
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 teenage 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.'' \63\
However, according to Dr. Lucero, ``parents are usually the
ones who can best help their teenager consider her options. And
whatever the girl's decision, parents can provide the necessary
emotional support and financial assistance.'' \64\ 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.'' \65\
---------------------------------------------------------------------------
\63\ Bruce A. Lucero, M.D., Parental Guidance Needed, N.Y. Times,
July 12, 1998, section 4, at 1.
\64\ Id.
\65\ Id.
---------------------------------------------------------------------------
Despite these benefits of better informed selection of
abortion providers, improved medical histories, and appropriate
post-operative care, opponents of H.R. 476 argue that mandatory
parental involvement results in girls delaying their decisions
to obtain abortions, thus increasing the risks attendant to the
procedure.\66\ There is little evidence, however, that parental
involvement laws actually result in medically significant
delays in obtaining abortions. A study of Minnesota's parental
notification law found that, ``Regardless [of the reason], the
claim that the law caused more minors to obtain late abortions
is unsubstantiated. In fact, the reverse is true. For ages 15-
17 the number of late abortions per 1,000 women decreased
following the enactment of the law. Therefore, an increased
medical hazard due to a rising number of late abortions was not
realized.'' \67\
---------------------------------------------------------------------------
\66\ Parental Notification of Abortion: Hearings on H. 218 Before
the House Comm. on Judiciary, 2001-2002 Legis. (Vt. 2001)(Lori Burris,
representative of Vermont Academy of Pediatrics)
\67\ Rogers, James L., Boruch, Robert F., Stoms, George B. &
DeMoya, Dorothy, Impact of the Minnesota Parental Notification Law on
Abortion and Birth, 81 Amer. J. Pub. Health 294, 297 (Mar. 1991). Cf.
Ellertson, Charlotte, Mandatory Parental Involvement in Minors'
Abortions: Effects of the Laws in Minnesota, Missouri, and Indiana, 87
Amer. J. Pub. Health 1367, 1372 (Aug. 1997) (``Evidence concerning
delay is mixed.''). See also id. at 1374 (``During periods of the laws'
enforcement in Minnesota and Indiana, the two states with gestational
age at abortion, in-state abortions for minors were probably delayed
into the second month of pregnancy, although probably not into the
second trimester.'').
---------------------------------------------------------------------------
Without the knowledge that their daughters have had
abortions, parents are incapable of insuring that their
children obtain routine post-operative care or of providing an
adequate medical history to physicians called upon to treat any
complications that may arise. The first omission may allow
complications such as infection, perforation, or depression, to
continue untreated. The second omission may be lethal. When
parents do not know that their daughter had an abortion,
ignorance prevents swift and appropriate intervention by
emergency room professionals responding to a life-threatening
condition.
Increased Protection from Sexual Assault
In addition to improving the medical care received by young
girls dealing with an unplanned pregnancy, parental involvement
will provide increased protection against sexual exploitation
of minors by adult men. National studies reveal that ``[a]lmost
two thirds of adolescent mothers have partners older than 20
years of age.'' \68\ In a study of over 46,000 pregnancies by
school-age girls in California, researchers found that ``71%,
or over 33,000, were fathered by adult post-high-school men
whose mean age was 22.6 years, an average of 5 years older than
the mothers. . . . Even among junior high school mothers aged
15 or younger, most births are fathered by adult men 6-7 years
their senior. Men aged 25 or older father more births among
California school-age girls than do boys under age 18.'' \69\
Other studies have found that most teenage pregnancies are the
result of predatory practices by men who are substantially
older.\70\
---------------------------------------------------------------------------
\68\ American Academy of Pediatrics Committee on Adolescence,
Adolescent Pregnancy--Current Trends and Issues: 1998, 103 Pediatrics
516, 519 (1999).
\69\ Mike A. Males, Adult Involvement in Teenage Childbearing and
STD, 346 Lancet 64 (July 8,1995) (emphasis added).
\70\ See id. (citing HP Boyer and D. Fine, Sexual Abuse as a Factor
in Adolescent Pregnancy and Child Maltreatment, 24 Fam. Plan.
Perspectives 4 (1992)); See also HP Gershenson, et al. The Prevalence
of Coercive Experience Among Teenage Mothers, 24 J. Interpersonal
Violence. 4 (1989), and American Academy of Pediatrics Committee on
Adolescence, Adolescent Pregnancy B Current Trends and Issues: 1998,
103 Pediatrics 516, 516 (1999) (``Younger teenagers are especially
vulnerable to coercive and nonconsensual sex. Involuntary sexual
activity has been reported in 74% of sexually active girls younger than
14 years and 60% of those younger than 15 years.'').
---------------------------------------------------------------------------
A 1989 study of coercive sexual experiences among teenage
mothers found that of the pregnant teens who had had unwanted
sexual experiences, only eighteen percent of the perpetrators
were within the victim's age group. Another eighteen percent
were three to 5 years older than the victim. Seventeen percent
were six to 10 years older, and forty percent were more than 10
years older than their victims.\71\ 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.\72\
---------------------------------------------------------------------------
\71\ See Gershenson at 4.
\72\ See Stanley Henshaw & Kathryn Post, Parental Involvement in
Minors' Abortion Decisions, Family Planning Perspectives, Sept./Oct.
1992, at 206.
---------------------------------------------------------------------------
Experience suggests that sexual predators recognize the
advantage of their victims obtaining an abortion.\73\ Not only
does an abortion eliminate a critical piece of evidence of the
criminal conduct,\74\ it allows the abuse to continue
undetected.\75\ Parental involvement laws insure that parents
have the opportunity to protect their daughters from those who
would victimize them further.
---------------------------------------------------------------------------
\73\ On June 14, 2000 a 36-year-old Omaha man who impersonated the
father of his teenage victim in order to assist her in obtaining an
abortion was sentenced to 1\1/2\ to 2 years in prison for felony child
abuse. See Angie Brunkow, Man Who Said He Was Girl's Dad Sentenced,
Omaha World-Herald (June 14, 2000) at 20. A similar attempt to hide the
consequences of statutory rape is reflected in the testimony of Joyce
Farley before the United States House of Representatives, Committee on
the Judiciary, Subcommittee on the Constitution. See Child Custody
Protection Act: Hearings on H.R. 3682 Before the Subcomm. On
Constitution of the House Comm. on the Judiciary, 105th Congress, May
21, 1998 (statement of Joyce Farley).
\74\ See Commonwealth v. Sasville, 616 N.E.2d 476 (Mass. 1993)
(destruction of aborted fetus precluded prosecution for forcible rape
of a child under the age of sixteen). Compare Smith v. Com., 432 S.E.2d
2 (Va. App. 1993) (prosecution for rape of 14-year-old girl), with
Hampton v. State, 1987 WL. 28223 (Ark. App. 1987) (prosecution for
incest), and State v. Khong, 502 N.E.2d 602 (Ohio App. 1985)
(prosecutor subject to contempt order for failure to comply with
discovery orders).
\75\ Dee Dee Alonzo testified before the Texas Senate Human
Services Committee in support of Senate Bill 30, the bill enacting the
Texas Parental Notification Act. At age sixteen, she was seduced by her
high school teacher. When she became pregnant, he persuaded her to have
a secret abortion. She went to the clinic alone, obtained the abortion
her seducer had paid for, and returned to continue the abusive
relationship for another year. Ms. Alonzo testified ``No matter what
their reaction would have been, they were my parents and they were
adults, and they did love me, it would not have been a secret and the
man would have been exposed.'' Testimony of Dee Dee Alonzo, Hearing on
Tex. S.B. 30 Before the Senate Human Servs. Comm., 76th Leg., R.S. 4-5
(Mar. 10, 1999) (tapes available from the Senate Staff Servs. Office
and content is from private transcripts of those tapes). A similar
incident involved another high school student impregnated by her
teacher. This is revealed in the settlement related to injuries she
suffered during the abortion of her pregnancy. See Clement v. Riston,
No.B-131,033, settlement reported in Jury Verdict Research, Research,
LRP Pub. No. 65904 available on Lexis-Nexis; cf. Patterson v. Planned
Parenthood, 971 S.W.2d 439, 447 (Tex. 1998) (Gonzales, J., concurring)
(describing the sexual abuse of a young girl that resulted in two
pregnancies and two secret abortions).
---------------------------------------------------------------------------
In short, the physical and psychological risks of abortions
to minors are great, and laws requiring parental involvement in
such abortions (subject to judicial bypass procedures) reduce
that risk. The widespread practice of avoiding such laws
through interstate commerce may be prevented only through
Federal legislation.
Constitutional Analysis
Constitutional Authority for the Child Custody Protection Act
H.R. 476 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.\76\ 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.\77\
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.\78\
---------------------------------------------------------------------------
\76\ See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
\77\ 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).
\78\ See United States v. Darby, 312 U.S. 100 (1941).
---------------------------------------------------------------------------
The interstate transportation of minors for the purpose of
securing an abortion is, therefore, clearly a form of
interstate commerce which the Constitution expressly empowers
Congress to regulate.\79\ H.R. 476 only regulates conduct which
involves interstate movement, activity which the national
Government alone is expressly authorized by the Constitution to
address.
---------------------------------------------------------------------------
\79\ U.S. Const., art. I, Sec. 8, cl. 3.
---------------------------------------------------------------------------
Federalism and the Child Custody Protection Act
The Federal Government has long exercised its interstate
commerce authority to prohibit interstate activity harmful to
minors and their families. In 1910, Congress used its Commerce
Clause power to enact the Mann Act,\80\ which prohibits the
interstate transportation of women or minors for purposes of
``prostitution or debauchery, or for any other immoral
purpose.'' The Supreme Court upheld the enactment of this law
as a constitutional exercise of Congress' power over
transportation among the several States. The Court reasoned
that if men and women employ interstate transportation to
facilitate a wrong, then their right to interstate travel can
be restricted.\81\
---------------------------------------------------------------------------
\80\ 18 U.S.C. Sec. 2421.
\81\ See Hoke v. United States, 227 U.S. 308 (1913).
---------------------------------------------------------------------------
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.'' \82\ According to Professor
Stephen Presser of the Northwestern University School of
Law,\83\
---------------------------------------------------------------------------
\82\ U.S. Const. amend. X.
\83\ Professor Presser testified before the Subcommittee on the
Constitution in support of the Child Custody Protection Act (then H.R.
3682) during the 105th Congress, and submitted a written statement in
support of the Act (then 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.\84\
---------------------------------------------------------------------------
\84\ 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. 476 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. 476 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. 476 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.'' \85\ Professor Lino A. Graglia of the University
of Texas Law School also testified that H.R. 476 ``furthers the
principle of federalism'' in that it seeks to ``reinforce or
make effective'' State policies that are being transgressed or
evaded.\86\
---------------------------------------------------------------------------
\85\ Id.
\86\ 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. 476 does not supercede, override, or alter existing
State laws regarding minors' abortions. Rather, H.R. 476 uses
Congress' authority to regulate interstate activity to protect
State laws from evasion. As Professor Presser stated:
[t]he political processes of each State exist 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.\87\
---------------------------------------------------------------------------
\87\ 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. 476 does not encroach on State powers, but
rather reinforces State powers.
H.R. 476 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.'' \88\ 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.\89\
---------------------------------------------------------------------------
\88\ 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).
\89\ 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.'' \90\ 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.
---------------------------------------------------------------------------
\90\ 18 U.S.C.A. Sec. 2423 (1970).
---------------------------------------------------------------------------
Opponents of H.R. 476 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.\91\
Instead, H.R. 476 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.
---------------------------------------------------------------------------
\91\ 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 this
provision for those who only transported women across State
lines as ``mistresses'' and ``concubines.'' \92\ In upholding
the law as a valid exercise of Congress' commerce power, the
Court stated that:
---------------------------------------------------------------------------
\92\ 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.\93\
---------------------------------------------------------------------------
\93\ 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.'' \94\ A statute to this
effect is still in force.\95\ 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.\96\ That provision was upheld by the
Supreme Court in Champion v. Ames \97\ and is still in effect.
---------------------------------------------------------------------------
\94\ United States v. Edge Broadcasting Co., 509 U.S. 418, 421
(1993).
\95\ See 18 U.S.C.A. Sec. 1302 (prohibiting the mailing of lottery
tickets or letters, circulars, and other materials regarding a
lottery).
\96\ See 18 U.S.C. Sec. 1301.
\97\ 188 U.S. 321 (1903).
---------------------------------------------------------------------------
The Right to Travel and the Child Custody Protection Act
CCPA's opponents argue that it violates the rights of
States to enact and enforce their own laws governing conduct
within their territorial boundaries. The simple response to
this argument is that CCPA does not attempt to regulate conduct
occurring solely within the territorial boundaries of a State.
CCPA regulates interstate commerce, and Congress has the
exclusive authority to regulate such activity. Moreover, rather
than exercising Congress' commerce power to its full extent
(i.e., by prohibiting the transportation of minors in
interstate commerce for the purpose of obtaining an abortion
without parental notice or consent), CCPA will reinforce the
choices of States that have chosen to require parental
involvement in the abortion decision of minors. The laws of
States that do not require such involvement are not affected by
CCPA.
Opponents also argue that CCPA violates the rights of
residents of each of the United States and of the District of
Columbia to travel to and from any State of the Union for
lawful purposes. Those opposed to CCPA on these grounds argue
that its result is to hold a pregnant minor ``hostage'' to the
laws of her home State. As an initial matter, it does not
appear that the Supreme Court has ever held that Congress'
power to regulate interstate commerce is limited by the ``right
to travel.'' Even assuming, however, that Congress' authority
under the Commerce Clause is limited by the right to travel
doctrine, the Supreme Court has recognized that the right to
travel is ``not absolute,'' and is not violated so long as
there is a ``substantial reason for the discrimination beyond
the mere fact that they are citizens of other States.'' \98\
Congress obviously has a substantial interest in protecting the
health and well-being of minor girls, and in protecting the
rights of parents to raise their children.
---------------------------------------------------------------------------
\98\ Saenz v. Roe, 526 U.S. 489, 502 (1999).
---------------------------------------------------------------------------
Protecting the health and well-being of minor girls and the
rights of parents to raise their children are substantial,
indeed compelling, reasons for restricting minors from
obtaining an abortion without parental involvement. First,
young adolescent girls who undergo abortions face a significant
chance of suffering from long-term physical and psychological
complications. These risks are not shared by older teenage
girls who have undergone an abortion. Second,
``[c]onstitutional interpretation has consistently recognized
that the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure
of our society,'' and that ``[p]roperly understood, then, the
tradition of parental authority is not inconsistent with our
tradition of individual liberty; rather, the former is one of
the basic presuppositions of the latter.'' \99\ Thus, ``[u]nder
the Constitution, the State can properly conclude that parents
. . . who have [the] primary responsibility for children's
well-being are entitled to the support of laws designed to aid
discharge of that responsibility.'' \100\
---------------------------------------------------------------------------
\99\ Bellotti v. Baird, 443 U.S. 622, 638 (1979) (Bellotti II).
\100\ Id. at 639.
---------------------------------------------------------------------------
Third, the fundamental rights of minors, including the
right to travel, are not equal to those of adults. Although the
Court has previously concluded that the fundamental rights of a
child are ``virtually coextensive with that of an adult,''
\101\ it also has recognized that ``[t]hese rulings have not
been made on the uncritical assumption that the constitutional
rights of children are indistinguishable from those of
adults.'' \102\ Thus, ``the State is entitled to adjust its
legal system to account for children's vulnerability and their
needs for `concern, . . . sympathy, and . . . paternal
attention.' '' \103\
---------------------------------------------------------------------------
\101\ Id. at 634
\102\ Id. at 635.
\103\ Id.
---------------------------------------------------------------------------
Based upon this reasoning the Court has allowed States to
enact laws that ``account for children's vulnerability'' and
that protect the unique role of parents:
[T]he Court has held that the States validly may limit
the freedom of children to choose for themselves in the
making of important, affirmative choices with
potentially serious consequences. These rulings have
been grounded in the recognition that, during the
formative years of childhood and adolescence, minors
often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental
to them.\104\
---------------------------------------------------------------------------
\104\ Id.
Thus, ``[l]egal restrictions on minors, especially those
supportive of the parental role may be important to the child's
chances for the full growth and maturity that make eventual
participation in a free society meaningful and rewarding.''
\105\ Therefore, a State may properly subject minors to more
stringent limitations than are permissible with respect to
adults. Examples include laws that prohibit the sale of
cigarettes and alcoholic beverages to minors, laws that
prohibit the sale of firearms and deadly weapons to minors
without parental consent, and laws that prohibit third parties
from exposing minors to certain types of literature. Equally,
Congress may restrict the right of minors to travel across
State lines to a greater extent than it may adults.
---------------------------------------------------------------------------
\105\ Id. at 638-39.
---------------------------------------------------------------------------
Roe v. Wade and the Child Custody Protection Act
In Roe v. Wade,\106\ 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,'' was construed
to forbid virtually all State prohibitions on abortion during
the first trimester of pregnancy.\107\ In Planned Parenthood v.
Casey,\108\ the scope of permissible State regulation of
abortion and the standards to be applied in evaluating the
constitutionality of the regulation were significantly changed.
Instead of declaring that the right to seek an abortion was a
``fundamental right'' requiring a ``compelling State interest''
in order to be regulated, the new holding was that State
regulation of abortion was permissible so long as such
regulation did not place an ``undue burden'' on a woman's
exercise of her constitutional rights with regard to
abortion.\109\
---------------------------------------------------------------------------
\106\ 410 U.S. 113 (1973).
\107\ See Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia,
J., dissenting).
\108\ 505 U.S. 833 (1992).
\109\ 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.'').
---------------------------------------------------------------------------
H.R. 476 does not place an undue burden upon a woman's
right to abortion because it does not raise any questions
concerning the permissible regulation of abortion that are
independent of the State laws that it is designed to
effectuate. To the extent that a State rule is inconsistent
with the Court's doctrine, that rule is ineffective and H.R.
476 would not make it effective. Therefore, it is unnecessary
to ask whether, for example, the ``life exception'' in
Subsection (b) of H.R. 476 is an adequate exception to a rule
regulating abortion or whether the inability to circumvent a
State law is an ``undue burden.'' Because constitutional limits
on the States' regulatory authority are in effect incorporated
into Subsection (a) of the Act, Subsection (b) is in addition
to any exceptions required by the Court's doctrine.
Constitutionality of Parental Involvement Laws
Following the Court's decision in Roe v. Wade,\110\ 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.
---------------------------------------------------------------------------
\110\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
The Court first considered parental involvement in a minor
daughter's abortion in Planned Parenthood of Central Missouri
v. Danforth.\111\ The Missouri statute gave a minor girl's
parent an absolute veto over her decision to have an abortion.
The majority, led by Justice Blackmun, concluded that such a
veto power was unconstitutional.\112\ The majority noted,
however, that the Court ``long has recognized that the State
has somewhat broader authority to regulate the activities of
children than of adults'' and ``emphasized'' that its holding
in the case ``does not suggest that every minor, regardless of
age or maturity, may give effective consent for termination of
her pregnancy.'' \113\
---------------------------------------------------------------------------
\111\ 428 U.S. 52 (1976).
\112\ Id. at 74.
\113\ Id. at 74, 75.
---------------------------------------------------------------------------
The Court next addressed State parental involvement laws in
Bellotti v. Baird,\114\ remanding 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.\115\ The statute returned to the Supreme
Court in Bellotti v. Baird (Bellotti II).\116\ 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.
---------------------------------------------------------------------------
\114\ 428 U.S. 132 (1976).
\115\ In doing so the Court recongized minors bear ``unquestionably
greater risks of inability to give an informed consent.'' Id. at 147.
\116\ 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.\117\ Thus,
Justice Powell stated, ``constitutional interpretation has
consistently recognized that the parents' claim to authority in
their own household to direct the rearing of their children is
basic in the structure of our society,'' and that ``[p]roperly
understood, then, the tradition of parental authority is not
inconsistent with our tradition of individual liberty; rather,
the former is one of the basic presuppositions of the latter.''
\118\ 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.'' \119\ Thus, the plurality sought to design
guidelines for a judicial bypass proceeding that allowed States
to address these interests.
---------------------------------------------------------------------------
\117\ See id. at 651.
\118\ Belloti II, 443 U.S. at 638.
\119\ Id. at 634.
---------------------------------------------------------------------------
In H.L. v. Matheson,\120\ 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.'' \121\
---------------------------------------------------------------------------
\120\ 450 U.S. 398 (1981).
\121\ Id. at 409.
---------------------------------------------------------------------------
In Planned Parenthood Association of Kansas City, Missouri,
Inc. v. Ashcroft,\122\ the Court found a State law to be
constitutional 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.
---------------------------------------------------------------------------
\122\ 462 U.S. 476 (1983).
---------------------------------------------------------------------------
In Ohio v. Akron Center for Reproductive Health,\123\ 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.\124\ 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.
---------------------------------------------------------------------------
\123\ 497 U.S. 502 (1990).
\124\ See id. at 514-515.
---------------------------------------------------------------------------
In Hodgson v. Minnesota,\125\ the Court invalidated a State
statute that required notification of both parents prior to a
minor girl's abortion without the option of a judicial bypass.
The Court, however, upheld statutory requirements that both
parents be notified of the abortion and a 48 hour waiting
period between notification and the performance of the
abortion, if such requirements were accompanied by a judicial
bypass procedure that met constitutional standards.
---------------------------------------------------------------------------
\125\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
Judicial Bypass Procedures
In Bellotti v. Baird,\126\ the United States Supreme Court
set forth the basic test by which judicial bypass proceedings
pursuant to a parental notice or consent statute must be
reviewed. Bypass procedures must allow the minor to show that
she possesses maturity and information to make the decision, in
consultation with her physician, without regard to her parents'
wishes; or that even if she cannot make the decision by
herself, that the ``desired abortion would be in her best
interests''\127\; be confidential; and be conducted ``with
expedition to allow the minor an effective opportunity to
obtain the abortion.'' \128\
---------------------------------------------------------------------------
\126\ 443 U.S. 622 (1979) (Bellotti II).
\127\ Id. at 644.
\128\ Id. Factors that may be considered in determining
``immaturity'' include work and personal experience, appreciation of
the gravity of the procedure, and judgment. See Hodgson v. Minnesota,
497 U.S. 417 (1990). Under the ``best interests'' analysis judges often
consider medical risks to the minor as a result of the time, place or
type of procedure to be performed, medical risks particular to the
girl, evidence of physicial, sexual, or emotional abuse by parents or
guardians, and abortion alternatives such as marriage, adoption, and
single motherhood.
---------------------------------------------------------------------------
Some critics of H.R. 476 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. 476 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.\129\
---------------------------------------------------------------------------
\129\ 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, 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. 476 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.\130\
---------------------------------------------------------------------------
\130\ 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. 476 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 likely
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.'' \131\
---------------------------------------------------------------------------
\131\ 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.\132\ 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.` '' \133\ 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,'' \134\ and many judges were avoided ``for
reasons of hostility.'' \135\ 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.\136\
---------------------------------------------------------------------------
\132\ 868 F.2d 459 (1st Cir. 1989).
\133\ Id. at 469 (quoting Hodgson v. Minnesota, 648 F.Supp. 756,
777 (1986)).
\134\ Id. at 463.
\135\ Id. at 461 n.6.
\136\ 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,\137\ 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.'' \138\ 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.'' \139\
---------------------------------------------------------------------------
\137\ 1999 WL 371565 (9th Cir. June 9, 1999).
\138\ Id. at *4.
\139\ Id. at *8.
---------------------------------------------------------------------------
The Fifth Circuit employed essentially identical reasoning
in striking down a Louisiana judicial bypass procedure having
indefinite time limits.\140\ 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.'' \141\
---------------------------------------------------------------------------
\140\ See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir.
1997).
\141\ 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. 476 will only assist in the
enforcement of parental involvement laws which meet the
relevant constitutional criteria.
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, the CCPA itself does not
independently implicate any constitutional issues associated
with parental notification or consent statutes.
Hearings
The Committee's Subcommittee on the Constitution held a
hearing on H.R. 476 on September 6, 2001. Testimony was
received from the following witnesses: Ms. Eileen Roberts,
Mothers Against Minors' Abortions, Inc.; Professor John C.
Harrison, Professor of Law, University of Virginia School of
Law; Rev. Katherine Ragsdale, Vicar, St. David's Episcopal
Church; and Ms. Teresa S. Collett, Professor of Law, South
Texas College of Law. Additional material was submitted by
Honorable Ileana Ros-Lehtinen (R-FL); Mr. Laurence H. Tribe,
Tyler Professor of Constitutional Law, Harvard Unviersity and
Mr. Peter J. Rubin, Associate Professor of Law, Georgetown
University; Bill and Karen Bell; and the Center for
Reproductive Law and Policy.
Committee Consideration
On February 7, 2002, the Subcommittee on the Constitution
met in open session and ordered favorably reported the bill
H.R. 476, by a voice vote, a quorum being present. On March 20,
2002, the Committee met in open session and ordered favorably
reported the bill H.R.476 without amendment by a recorded vote
of 19 to 6, a quorum being present.
Vote of the Committee
1. An amendment was offered by Mrs. Waters to prohibit
subsection (a) of the Act from applying ``if the pregnancy is
the result of sexual contact with a parent or any other person
who has permanent or temporary care or custody or
responsibility for supervision of the minor, or by any
household or family member.'' The amendment was defeated by a
rollcall vote of 12 to 16.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Bryant...................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon......................................................
Mr. Graham......................................................
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 16
----------------------------------------------------------------------------------------------------------------
2. An amendment was offered by Mr. Nadler prohibiting H.R.
476 from applying ``with respect to conduct by a grandparent or
adult sibling of the minor.'' The amendment was defeated by a
rollcall vote of 11 to 16.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Bryant......................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon......................................................
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 11 16
----------------------------------------------------------------------------------------------------------------
3. Motion to reconsider the previous question on H.R. 476
was defeated by a rollcall vote of 7 to 16.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Bryant......................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 16
----------------------------------------------------------------------------------------------------------------
4. Final Passage. The motion to report favorably the bill
H.R. 476 was agreed to by a rollcall vote of 19 to 6.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Bryant......................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 19 6 1
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII 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.
Performance Goals and Objectives
H.R. 476 does not authorize funding. Therefore, clause 3(c)
of rule XIII of the Rules of the House is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 476, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 22, 2002.
Hon. F. James Sensenbrenner, Jr., 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. 476, 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.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 476--Child Custody Protection Act.
CBO estimates that implementing H.R. 476 would not result
in any significant cost to the Federal Government. Because
enactment of H.R. 476 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. 476 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. 476 would make it a Federal crime to transport a minor
across state lines, under certain circumstances, to obtain an
abortion without parental notification. Violators would be
subject to imprisonment and fines. As a result, the Federal
Government would be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that any increase
in Federal costs for law enforcement, court proceedings, or
prison operations would not be significant, however, because of
the small number of cases likely to be involved. Any such
additional costs would be subject to the availability of
appropriated funds.
Because those prosecuted and convicted under H.R. 476 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
later spent. 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
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis and Discussion
H.R. 476 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 1 year
imprisonment or a fine, or both.
Subsection (a), paragraph (2) specifies the criteria for a
violation of the parental right under this statute as follows:
an abortion must be performed on a minor in a State other than
the minor's residence and without the parental consent or
notification, or the judicial authorization, that would have
been required had the abortion been performed in the minor's
State of residence.
Subsection (b), paragraph (1) specifies that subsection (a)
does not apply if the abortion is necessary to save the life of
the minor.
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 (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions......................................... 1
* * * * * * *
117. Transportation for illegal sexual activity and related
crimes.............................................. 2421
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.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MARCH 20, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:50 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order.
[Intervening business.]
Now, the main event on the schedule today is the markup on
the bill H.R. 476, and the Chair recognizes the gentleman from
Ohio, Mr. Chabot, to make a motion.
[The bill, H.R. 476, follows:]
Mr. Chabot. I thank the Chairman for yielding.
There is no serious dispute regarding the fact that minors
are routinely transported across State lines.
Chairman Sensenbrenner. Will the gentleman from Ohio move
to report the bill favorably? And then you'll be recognized.
Mr. Chabot. I do so move, yes.
Chairman Sensenbrenner. Okay, and the gentleman is now
recognized for 5 minutes in support of his motion.
Mr. Chabot. Thank you.
There is no serious dispute regarding the fact that minors
are routinely transported across State lines for the purpose of
obtaining an abortion in circumvention of parental involvement
laws.
One prominent abortion rights advocated stated that
thousands of adults are helping minors cross State lines to get
abortions in States whose parental involvement requirements are
less stringent or nonexistent.
As recently as last August, another abortion rights
advocate voiced her willingness to help pregnant young girls
residing in New Jersey to cross State lines in order to obtain
an abortion should the State's Legislature pass a parental
involvement statute.
Thus, H.R. 476, the ``Child Custody Protection Act,'' would
make 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 notification
statute.
H.R. 476 is a regulation of interstate commerce that seeks
to protect the health and safety of young girls and parents'
rights to be involved in the medical decisions of a minor
daughter by preventing validly enacted and constitutionally
sound State parental involvement laws from being circumvented.
As such, it falls well within Congress's constitutional
authority to regulate the transportation of individuals in
interstate commerce. There is a solid body of case law that
remains unaffected by recent Supreme Court rulings, limiting
the reach of Congress' commerce clause authority, which
confirms that the authority of Congress to regulate the
transportation of individuals in interstate commerce is no
longer in question.
For example, the Mann Act, which flatly prohibited the
interstate transportation of women for prostitution of for any
other immoral purpose was upheld by the Supreme Court, which
stated that, under the commerce clause, ``Congress has power
over transportation among the several States,'' and
characterized this power as being complete in itself, and
concluded that incident to this power, Congress may adopt not
only means necessary but also means convenient to its exercise,
even if it has ``the quality of police regulation.''
Application of the Mann Act has been upheld relative to the
transportation of a person to Nevada, even though prostitution
in Nevada is legal.
Federal prohibitions on the transportation of lottery
tickets in interstate commerce and placing letters or circulars
concerning lotteries in the mail have also been upheld,
regardless of whether or not lotteries are legal in the State
to which the tickets or letters are transported.
Rather than exercising its full authority under the
commerce clause by simply prohibiting the interstate
transportation of minors for abortions without obtaining
parental notice or consent, H.R. 476 respects the rights of the
various States to make these often controversial policy
decisions for themselves and ensures that each State's policy
aims regarding the issue are not frustrated.
Nothing in H.R. 476 affects the ability of minors residing
in States that have chosen not to enact a parental involvement
law or where an parental involvement is currently not enforced
from obtaining an abortion without the knowledge of their
parents.
At the heart of the debate surrounding the Child Custody
Protection Act is a disagreement about whether common-sense
legislation should be enacted in order to preserve the health
of pregnant young girls and support parents in the exercise of
their most basic right.
This debate has already been held in almost all of this
Nations' State legislatures, 43 of which have reasonably
concluded that parents should be involved in their minor
daughter's decision whether or not to obtain abortion.
In upholding the constitutionality of parental notice and
consent statutes, the Supreme Court has consistently recognized
that during the formative years of childhood and adolescence,
minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them.
This is especially true for young girls seeking an abortion as
they face particular physical and psychological risks
associated with the procedure.
Parental involvement laws have been enacted after informed
political debate, and Congress is well within its authority to
ensure that the channels of interstate commerce are not used to
frustrate the policy goals of these laws.
I urge my colleagues to approve the legislation, which has
been approved twice by this Committee and twice by the Members
of the House. The futures of our daughters demand nothing less.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler, is recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Today's bill is, thankfully, we all know, not going
anywhere. This is the third Congress in a row where you've
considered it, the third Congress in which, we can be certain,
that it will receive no consideration in the Senate, regardless
of the party in charge.
It's the third Congress in a row in which this House is
simply posturing for the anti-choice extremists.
If passed, however, the big hand of Government, meddling
into the most sensitive and often tragic family situations,
could do real harm. So, while irritating, this is no laughing
matter.
Exporting the ill-considered laws of some States to others,
whose citizens see these difficult matters in very different
terms, is not an appropriate role for the Federal Government.
Were it not for the fact that the consequences of this ill-
advised and unconstitutional proposal could cost lives and
destroy families, I would be tempted to throw up my hands and
say it's not worth wasting the time debating the bill. But we
cannot do that. The stakes are too high.
No matter how many times we have to repeat this, I know
that both you and I and our colleagues on this Committee feel
too strongly about what is at stake here. The lives and futures
of young women facing some of life's most difficult situations
is a pressing responsibility of this Committee, and so I join
my colleagues here today to speak for these young women.
This is a bad bill and should be rejected. Our oath to be
faithful to the Constitution demands it. Our respect for the
rights of the people of each of the several States demands it.
And most of all, the fates of the young women whose lives would
be irreparably harmed by this legislation demand it.
We can and have had honest disagreements about the wisdom
of parental consent and notification laws. Many of the Members
of this Committee have previously served in our respective
State legislatures and have debated this issue as a matter of
State law. We're not going to settle that difference of opinion
here today.
What we can settle, however, is the question of whether the
people of one State should be allowed to set the policy
affecting families, abused young people, and the proper role of
the State when circumstances are less than ideal, for other
States. That is where this bill clearly fails.
In New York, for example, we have rejected this policy, the
policy of parental consent, not because we believe that
families should not deal with such issues together in a loving
environment, but because we recognize that the law must not
ignore the fact that the most difficult situations of those
young women who do not have safe, loving families to assist
them in such trying times.
There is absolutely no reason why a clergy person, such as
the priest who testified at our hearing, who assists a young
woman who goes from Pennsylvania to a doctor a few minutes away
in New York, should face Federal charges. Nor should a
grandmother who assists a young woman who has been sexually
assaulted by a stepfather spend time in the Federal
penitentiary.
While the majority of young women do these make these
decisions, and should, in conjunction with their parents, there
are cases where they simply cannot.
While the Supreme Court has required that State laws
providing for parental consent include a judicial bypass, we
all know there are judges out there who will impose their own
private religious views on the young women who appear before
them and who routinely refuse to grant court permission in any
case, no matter how desperate.
Reality, my colleagues, is regrettably messier than the
rhetoric in the Congress.
We have decided this issue for ourselves in New York, and
other States have decided it both ways. The Federal Government
has no business prosecuting people for doing what New York has
decided is appropriate and legal in our State. The Federal
Government should not seek to allow a State to hold its
citizens hostage and to say, ``We will prevent you from going
to another State to do what is legal in that State, because we
don't approve of it in this State.''
It seems to me that we hear a lot of rhetoric about
Government being at the local level, or the nearest level that
is practical, from the other side of the aisle. We hear a lot
of rhetoric about the States being able to decide things for
themselves. And in this area, they have. And some States have
decided to require parental consent or notification laws, and
other States have decided not to do so. To empower--to recruit
the Federal Government to extend the long hand of one State to
imprison its citizens in another State is simply wrong.
The State laws should govern in the State where they are.
And who the heck is the Federal Government to say that we so
disapprove, we are so morally disapproving of the law of the
State of New York, that we will criminally prosecute anybody
who helps someone go to New York to take advantage of its law?
That is an insult to the 20 or 25, whatever number, States that
have chosen not to require such laws.
The Federal Government should not impose its will in such
cases, and to do so is not only an insult to those States, but
to every--any conceivable concept of federalism.
Thank you very much.
Chairman Sensenbrenner. The gentleman's time has expired.
All Members may put opening statements in the record at
this point.
Are there amendments?
The gentlewoman from California----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California--
ladies first.
The gentlewoman from California had her hand up.
Ms. Waters. This is the first time I've known ladies to be
first in this Committee, but I'll take it. [Laughter.]
Chairman Sensenbrenner. A new broom sweeps the floor----
Ms. Waters. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 476, offered by Ms. Waters.
Page 3, after line 19, insert the following: Paragraph (3), the
prohibition of subsection (a) does not apply if the pregnancy
is the result of sexual contact with a parent or any other
person who has permanent or temporary care or custody or
responsibility for supervision of the minor, or by any
household or family member.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. Thank you very much.
Mr. Chairman and Members, this is a bill we have seen the
past three Congresses, even though it's riddled with problems.
First, I sincerely believe it would pose a risk to young
women's health. Second, it is unconstitutional on several
levels. Third, it will harm not help communications between
pregnant teens and their parents.
I'm going to get right to the meat of this matter. This
bill, for example, fails to take into account the very tragic
and very real situation of a young girl who has been the victim
of sexual contact by a parent, stepparent or other relative or
household member. We should all be able to agree that young
girl in that situation has the right to chose an abortion.
That's exactly what my amendment would do.
Sadly, some pregnancies result from unwanted sexual
contact. Adding to that horror is the fact that many families
are unable or unwilling to deal with the realties of the
situation. A mother may chose not to believe that the child's
father or stepfather could have done such a horrible thing. She
may even share the child's confidences with the very person who
committed the deed, thus potentially putting the child at great
risk.
Many of you may know of the tragic case of Spring Adams, a
13-year-old 6th grader from Idaho. She was shot to death by her
father after he learned that she was planning to terminate a
pregnancy caused by his acts of incest.
My amendment addresses this problem. It provides that the
prohibitions of H.R. 476 would not apply when the minor child's
pregnancy resulted from sexual contact with a parent,
stepparent, custodian or any household or family member. We
cannot demand that such a child share her situation with that
person.
When the child turns, instead, to a grandparent or adult
sibling or boyfriend, we should let her do so. Otherwise, we
will find young girls impregnated by relatives or household
members seeking to deal with it in anyway they can, whether
they do so by traveling alone to another State for the
procedure or take care of it through a self-induced or illegal
back-alley abortion.
I would urge my colleagues to support this amendment.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. Does the gentlewoman yield back?
Ms. Waters. I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
I rise in opposition to this amendment. In situations
involving incest, it's extremely important that minors who are
being abused in this manner bring the abuse to the attention of
the authorities as soon as possible.
This amendment would encourage minors not to pursue a
confidential judicial bypass hearing during which the abuse may
be reported to the court or to seek the assistance of
authorities in some other way. In fact, it would encourage the
minors to seek out-of-State abortions and return to the very
environment in which the incest occurred.
For that reason, I strongly oppose this amendment and yield
back the balance of my time.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. I rise to support the Waters amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. Members of the Committee, this amendment makes
it easier for women who have been impregnated as a result of
sexual contact by someone in the family system or someone
they've confided in, and it does so by prohibiting prosecutions
in cases where a young woman is so impregnated.
Today, a household may be comprised of all kinds of
combinations of parents, single parents, stepparents, older
siblings. So, under those kinds of circumstances, there's a, I
imagine, a feeling of desperation and isolation that could
easily develop.
So where abuse already exists, confronting a parent is not
a really serious option. Our studies have all shown that
abusive and dysfunctional families have a higher incidence of
violence when some kind of pregnancy like this occurs. And many
can't bear the thought of informing their mother their
pregnancy was caused by a father, boyfriend, stepfather or
something like that. They know that means they'll be leaving
the house soon.
And so going out of State becomes an even more important
option. And when that option is taken away, they can sometimes
move for dangerous alternatives.
I think the common-sense way to improve this bill, even
with its constitutional problems, is to support the Waters
amendment.
I yield back.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. I think this a very important amendment,
because I think we all agree that thousands of young women are
being transported across State lines every day to get abortions
without their parents' knowledge or consent.
Now, if--and I'll accept the fact that many of these women
are being impregnated by a stepfather or by, say, a brother or
stepbrother in the home. And it would seem that those are very
cases where it is absolutely mandatory that we not allow this
to go on, because if their stepfather's impregnating them, and
I think we all agree that's happening in hundreds of cases,
probably every day in this country, they go across State lines,
they obtain an abortion, the courts don't find out about it.
The young girl comes back, she goes right back into that
environment again, she gets pregnant again, she's abused again.
To me, it's very important, in a case like that, that we
would say: Go to the court, bring this to the attention of the
court, prosecute this person.
If fact, I think by offering this amendment, Ms. Waters is
actually--actually, she's actually turned a light on in my mind
for another absolutely critical reason to pass this
legislation, and that's the fact that we have--and these are
people that I think mean well. They, number one, they--I don't
agree with them, but they believe that abortion is a legitimate
alternative. But, number two, they're transporting young girls
who have been abused by their stepparents or in an abusive
family situation across the State line, thinking that's in
their best interests, but nothing is being done what's
happening at home.
Ms. Waters. Will the gentleman yield?
Mr. Bachus. They ought to end up--that's the very cases
that ought to--don't we agree that when a young woman----
Ms. Waters. Will the gentleman yield?
Mr. Bachus.--is being sexually abused and has had
intercourse with the stepfather or by--even by her own blood
father, that that is the very case we ought to carry into court
and end that foolishness, as opposed to dragging that poor girl
across State lines, having her get an abortion, bring her back.
And in many cases, we know that these young girls are
having two and three and four abortions. They come back and----
Ms. Waters. Will the gentleman yield?
Mr. Bachus.--they end up sterile. They don't have any
ability to have children, all because somebody, some do-gooder,
decided to intervene, and take what appeared to them to be an
easy way out.
Ms. Waters. Will the gentleman yield?
Mr. Bachus. That, to me, is the ultimate in child abuse.
Ms. Waters. Will the gentleman yield?
Mr. Bachus. And I think my time has expired.
But I think you mean--you meant well by this amendment. But
I think you're going to cover up----
Ms. Waters. You still have time. Will you yield, sir?
Mr. Bachus.--a lot of tragic cases.
Ms. Waters. Will you yield?
Mr. Bachus. This is the very case we absolutely ought to
require court intervention in.
Ms. Waters. If the gentleman will yield----
Mr. Bachus. I don't know if you'll accept an amendment
saying that this absolutely has to go to court.
Ms. Waters. Will the gentleman yield?
Mr. Bachus. I'll yield.
Ms. Waters. Thank you very much.
I know that, you know, you get a little emotional about
this, and your reference to just thousands of girls going
across the border every day, I think you may be exaggerating it
a little bit.
But I want to make the distinction between bringing it to
the attention of the courts and the judicial bypass.
Yes, many of these girls will bring it to the attention of
the courts for purposes of prosecution. However, it does not
mean that that automatically means they get a judicial bypass.
These are two separate kinds of court actions.
And so what they would have to have is, they would have to
have, as it was mentioned earlier, when there was a discussion
about the judicial bypass, that could or could not be granted
by a judge. That's one separate action, as opposed to the----
Mr. Bachus. But we ought to absolutely require, in a case
like this, that it go to court. You know, if you have an
amendment that says, when this happens, when someone, that
there's a question or a charge or even an indication that a
stepfather or a brother or even the blood father of a young
girl has committed--has violated our--the laws against rape and
incest which are in our county, that they ought to absolutely
go to court.
That is the very case that ought----
Ms. Waters. It's already--you are describing----
Mr. Bachus.--to be brought before the court in every case.
Ms. Waters. What you're describing is already----
Mr. Bachus. And I think you mean--I mean, I really believe
that you mean well by this. I understand this. And I believe
that the people--I totally disagree with them--but I think when
they're taking these young girls--and, I mean, there's plenty
of testimony. We all agree that these young women are going
across State lines----
Chairman Sensenbrenner. The gentleman's time has expired.
The question is----
Mr. Nadler. Mr. Chairman?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you. Mr. Chairman, let me say a couple
things about this amendment.
First of all, I think it is wrong to keep using the phrase
``transporting someone across State lines.'' She is going
across State lines voluntarily, perhaps desperately. The person
accompanying her may be a friend, a grandmother, a clergyman,
helping her. This is not the same as someone transporting
someone. If she were 5 years old, that might be a different
question.
Secondly, on this amendment, the absurdity of not having an
amendment like this is evident if you think about the following
situation. This says that it does not apply, the prohibition
does not apply, if the pregnancy is the result of sexual
contact with a parent or any other person who has permanent
temporary care or custody. So imagine that the father or the
stepfather who has custody or whatever rapes the girl, rapes
the young woman, the 16- or 17-year-old young woman. She has to
get his written permission--his. Maybe there's no mother
present.
She has to get the permission of the rapist, under this
bill----
Mr. Chabot. Will the gentleman yield?
Mr. Nadler. I will not yield.
Mr. Chabot. Will the gentleman yield?
Mr. Nadler. I will not yield.
Mr. Chabot. Okay.
Mr. Nadler. Go to court. We know of any number of cases,
we've had witnesses, where the judges simply never grant
permission. There are plenty of anti-choice judges in this
country who won't grant permission. So those don't operate
necessarily. They might in some places.
The judicial bypass in some place may operate, in other
places won't.
And, by the way, you may have a young girl who was raped by
her stepfather or by her father. He doesn't know she's
pregnant. If she serves him with a notice of complaint to
appear in court or he finds about a court hearing, he knows
she's impregnated, she might fear being murdered.
So there are real problems with this. What I'm saying is,
under--this amendment simply says--and this will tell us. There
are two possible motives for supporting this bill: one, a
sincere concern for these young women; two, a hatred for
abortion no matter what and using any smokescreen as an excuse
to make it difficult for women to exercise their constitutional
right to have an abortion if they choose.
If the motivation is the first, then I can't see how
anybody can vote against this amendment, because this says that
she doesn't have to get the permission of the rapist. If the
motivation is the second, and we don't care about victims of
rape, as long as they don't get abortions, then you vote
against the amendment. It's very clear.
I yield back.
Mr. Barr. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Georgia, Mr.
Barr.
Mr. Barr. Mr. Chairman, I have no idea of what the
gentleman that just spoke is talking about.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes to try to tell us.
Mr. Barr. Thank you.
Maybe the Chairman, the distinguished Chairman of the
Subcommittee, can enlighten us, because the bill does not say
what the gentleman--nor does the amendment say what the
gentleman from New York just said.
And I yield to the gentleman from Ohio.
Mr. Chabot. I thank the gentleman for yielding.
It's inaccurate to say that the young girl would have to
get the authorization or approval of the rapist. That's the
whole purpose of the judicial bypass procedure. And under the
best-interest analysis during a judicial bypass procedure,
judges consider evidence or history of physical or sexual or
emotional abuse, so that parental notification would not be in
the minor's best interests under those circumstance.
So it absolutely inaccurate to say that the young girl
would have to get the authorization of the rapist. It's just
wrong.
I yield back the balance of my time.
Ms. Waters. Would the gentleman yield?
Chairman Sensenbrenner. The time belongs to the gentleman
from Georgia, Mr. Barr.
Mr. Barr. I yield back the balance of my time.
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner.
Mr. Weiner. Mr. Chairman, I won't take a full 5 minutes,
but if we're going to correct or try to clarify statements, my
good friend from Alabama is waving the amendment and saying
this is the reason we have to pass the bill, because no one is
going to get prosecuted unless we pass the bill.
There's nothing in this amendment that says that someone
who's guilty of raping their daughter will not be prosecuted.
It doesn't say that at all. It doesn't say that the cops can't
investigate it, can't say that a district attorney can't
prosecute, can't say that someone won't go to jail.
And I would caution the gentleman from Alabama and others,
you know, the pronoun ``they'' was thrown around a great deal,
the ``thousands'' being transported. You know, what this comes
down to, and I would urge us to kind of keep this in mind,
these are individual cases--complex, difficult, gut-wrenching
individual cases.
This is not Mayberry. This isn't going to be--you know, I,
of course, would like a dynamic where a young woman who becomes
pregnant and an unwanted pregnancy sits down with mom and pop
and Auntie May, and they sit down and have a freshly baked
cherry pie, and they talk about the difficult fix they're in.
But sometimes in these circumstances a person chooses to
turn to their member of clergy, to their rabbi or priest, and
say, ``You know what? I have a difficult problem here. I'm
afraid to go to the cops. I'm afraid to go to my local
physician who knows my aunt, who knows my mother.''
These are complicated things. And so States come up with
laws on ways to try to deal with these complicated things. The
Supreme Court of the United States has wrestled with this and
say, ``You know what? Let's not do anything that gets in, in an
unreasonable way, gets in the way of a woman exercising her
right to protect her health.''
I mean, that's what--we're talking about individual cases
here. And, yes, in the best case scenario and every case
scenario, if someone is guilty of incest, you get on the phone,
you call the cops, you have them arrested, you throw them in
jail, they never see the light of day again. Of course.
Does the gentleman from Alabama really believe that that's
the way it is in the real world, that in every single case
where a woman is guilty of sexual--sexual abuse, even if it's
her boyfriend or her husband, that she says, ``Okay, I'll call
up the cops over here, and then I'm going to go exercise my
right to a judicial bypass hearing.''
I mean, come on. Is there a confused 16-year-old girl who
has just been raped by her father or who has been abused by her
boyfriend who works in the same school with her uncle who knows
somebody, is there a confused person in the world whose first
instinct is, ``Well, I've got my right to judicial bypass,
because the Chairman of the Subcommittee referred to me to
section 9 of the bill that has passed seven times and is never
going to become law.'' No.
I mean, these are complicated cases of individual people in
agony and in pain. None of us want there to be any abortions.
Every one of us wants, in these cases, us to have a family
structure just like the one you envision, that someone turns to
their mother or father, they talk it out, they come up with
some kind of an alternative, and everyone lives happily ever
after.
But I think that the laws of the States and the
constitutional decisions have been: ``You know what? These are
difficult judgment calls, and we've come down in this country
on the side of giving a woman the right to protect herself, and
sometimes it's messy.''
These aren't thousands of people being transported. It's
not people being piled on a train, going down the tracks to go
get these services. These are individual people in difficult,
agonizing, individual circumstances.
It's not ``they'' who are doing it. It's not the do-gooder
that's doing it. These are individual priests, rabbis,
counselors, school math teachers, friends, neighbors,
boyfriends, who are there at a time of the greatest need for
these young girls and offering them help. Sometimes that help
is just giving them a ride a few miles down the road to go to a
doctor, a physician, who offers them advice and may ultimately
offer them the choice of having an abortion.
Do we want to put those people in jail? Those are
individual people. Are they really--is our country better
putting those people in jail?
I yield back.
Mr. Coble. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina, Mr. Coble, seek recognition?
Mr. Coble. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Coble. Mr. Chairman, I yield time to the gentleman from
Alabama.
Mr. Bachus. Thank you. I'd like to respond to the gentleman
from New York. You know, what his argument was and the argument
I'm hearing from the other side is, really, the first thing it
is, it's an inconsistent argument, because we just heard that
we didn't need to take this to the court or the police because
this young girl may actually be killed if the father finds out
that----
Ms. Waters. Who said that?
Mr. Bachus. Someone on the top row said, if she reports it,
she might be killed. That was exactly what they said.
And the argument is, you know, if they find out, they may
be further abused.
And I've also heard that I think that we all live in
Mayberry. Well, let me say this: I authored the domestic
violence statute that was passed in Alabama in 1982 that four
other States adopted. So, you know, I wasn't living in Mayberry
in 1982, when I was in the State Senate, nor am I now.
I think, again, that what--if you say that this will not--
that this has nothing to do with people being found out, this
amendment, you know, it doesn't say anywhere in the words that
it does that. But what it does, it allows boyfriends, as you
say, it allows neighbors, it allows preachers, it allows some
of the groups that we see in the audience today, whose
organizations take these young women across State lines without
the knowledge of the father. The stepfather has impregnated
them----
Ms. Waters. What groups? What groups? What groups?
Mr. Bachus. It's in the testimony here, groups that provide
that.
Ms. Waters. Will the gentleman yield? What group are you
talking about?
Mr. Bachus. Well----
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina.
Ms. Waters. The gentleman should be able identify the group
he's talking about.
Mr. Bachus. And what you've got here is----
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina.
Mr. Bachus.--if a boyfriend--if a boyfriend or a neighbor
takes these young women who have been impregnated by a
stepfather or a brother or even their own father, takes them
across State lines and has an abortion, instead of going to the
court, yes, you're covering that up.
And when that young woman goes back, she doesn't go back to
Mayberry. She goes back to Hell Street, where she was when here
stepfather or her brother or her uncle impregnated her in that
home, and where they may be--where the mother may be covering
up for the stepfather.
And because she goes across State lines and has an
abortion, her real father, because like you said, in America
today, we have a lot of divorces, we have a lot of second and
third marriages. And in a lot of case, the father may be living
in another State; his daughter is living with the stepfather; a
stepbrother may impregnate the girl; and that father never
receives any notice, because some neighbor or some boyfriend or
some preacher, you said, decides that what ought to be done is
she ought to be quietly taken across State lines where she has
an abortion, as if that takes care of the situation.
She's then going to be quietly brought back, quietly placed
in that home again. The court is never going to find out about
this.
It's high time that every one of these cases went to the
courts. And this idea that, when they go to the courts, that
this guy that impregnated this 15-year-old is going to get made
and get offended and come after somebody, well, I'll tell you
what, I think, you know, I think he'll find about that the--
that we'll be coming after him as opposed to coming after this
young girl.
Mr. Coble. Let me reclaim my time and yield back.
Mr. Bachus. And we had this argument in domestic violence
cases. You know, in several States, it wasn't--you know, you
didn't have to report. If you beat up your wife, it didn't have
to be reported----
Chairman Sensenbrenner. Did I hear the gentleman from North
Carolina try----
Mr. Bachus.--because they were afraid she'd go back and get
beat up again.
Chairman Sensenbrenner.--to reclaim his time?
Mr. Coble. I'm reclaiming and yielding back.
Chairman Sensenbrenner. The question is on the Waters
amendment.
Those in favor will say aye.
Opposed, no.
The noes appear to have it.
Ms. Waters. rollcall.
Chairman Sensenbrenner. And a rollcall is requested.
Those in favor of adoption of the Waters amendment will, as
your names are called, answer aye. Those opposed, no. And the
clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye.
Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members who
wish to cast or change their vote?
The gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. I vote no.
The Clerk. Mr. Bryant, no.
Chairman Sensenbrenner. The gentleman from Pennsylvania,
Mr. Gekas.
Mr. Gekas. No.
The Clerk. Mr. Gekas, no.
Chairman Sensenbrenner. The other gentleman from Tennessee,
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green.
Mr. Green. Mr. Green votes nay.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Pence.
Mr. Pence. Mr. Pence votes no.
The Clerk. Mr. Pence, no.
Chairman Sensenbrenner. Other--the gentleman from Virginia,
Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Other Members who wish to cast or
change their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 16 nays.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments?
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Mr. Chairman, I have an amendment at the desk--
--
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Nadler.--that is designated as amendment 1.
Chairman Sensenbrenner. Nadler 1.
The Clerk. Amendment to H.R. 476, offered by Mr. Nadler.
Page 3, after line 19, insert the following: (3) The
prohibition of subsection (a) does not apply with respect to
conduct by a grandparent or adult sibling of the minor.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you.
Mr. Chairman, under this bill, if a young girl is
impregnated by her stepfather, and the girl's mother, as is
sometimes the case, refuses to deal with the horrific reality
of the situation, or perhaps the girl's mother is no longer
alive or isn't present, an adult sibling or a grandparent who
takes the girl across the river from one State to another to
secure appropriate counseling and medical assistance, which may
include an abortion, would face Federal time and could be sued
by the spouse of the perpetrator, even if, in the words of the
psychiatric profession, the plaintiff was an enabler.
That is an absurd and pernicious outcome. It virtually
guarantees that those adults most able to provide the young
woman with assistance, loving members of her close family,
could be sent to the Federal penitentiary.
It's hard to believe that my colleagues, whatever their
view about abortion or the importance of family involvement,
would intend this to be the law, but this is precisely what the
bill says. It should not.
This amendment would simply exclude from the penalties of
this bill a very small, close group of family members to
provide the loving assistance that the proponents of the bill
claim to support.
It makes sense and would make an otherwise heartless bill
just a little bit more humane.
Mr. Chairman, especially in the situation where a young
girl was raped by perhaps the custodial father or stepfather,
it's hard to understand--and cannot, obviously, appeal to him
for permission, and may not trust the court--indeed, it may a
county where the judge has never granted a judicial bypass or
announced that he wouldn't grant a judicial bypass ever, as
some have.
It's hard to see how you can object to a grandparent or
brother or a sister of the person who wants the abortion from
accompanying her across a State line.
Now, again, either the motivation of this bill is to
encourage--is because of concern with the welfare of the
minor--if it is, then this amendment should face no hesitation
in being adopted. If the motivation of this bill is, as I
suspect it is, simply an attempt to make it as hard as
possible--one of a number of bills to make it as difficult as
possible for as many women as possible to exercise their
constitutional right of choice, to do everything we can within
the Constitution, within the Supreme Court interpretation of
the Constitution, to undermine the constitutional right of the
choice, then you'll vote against the amendment.
But especially where the rape or where the pregnancy was
caused by a rape within the family, and so the whole question
of a loving consultation doesn't exist--and, again, the
gentlemen--some people will say, ``Well, the judicial bypass
exists for that.'' In some places, it does. But it takes
willful ignorance--willful ignorance--not to notice the fact
that, in many places, there is no real judicial bypass
available.
Some States, by the way, have very limited judicial
bypasses.
In any event, it's hard to see how you can say that a
grandparent or brother or sister of the minor is indulging in
some--in transporting--it sounds like you're saying they're
indulging in some illicit, shameful activity, when they're
really helping their family member in a loving way to do
something that they believe they really have to do.
So I hope people will vote for this amendment, period.
Thank you. I yield back.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
I rise in opposition to the amendment. Those who want to
add these exceptions have a fundamental problem with the
underlying State law that only allows parents to grant consent
for the medical procedure that's in question here.
The inclusion of these people is a matter for each
individual State legislature, not the Congress. The Child
Custody Protection Act's purpose is to enforce State laws as
they are. Grandparents and adult siblings don't have the
authority now to authorize a medical procedure for a minor
child.
Thus, we would be carving out an exemption to the
fundamental rights of parents, for which another family member
seeks to transport their pregnant minor daughter out of State
in order for her to obtain an abortion in circumvention of her
home State's parental involvement law.
If these individuals are truly interested in the best
interests of the pregnant young girl, they will encourage and
support her as she takes the difficult step to either inform
her parents or guardians about her pregnancy or to pursue a
judicial bypass. It's certainly not in the best interests of a
pregnant young girl for anyone to assist her in evading the
laws of her home State and to secretly transport her miles away
from those who love her most in order to undergo a surgical
procedure that may have serious medical consequences to her.
For those reasons, I oppose this amendment. I yield back my
time.
Ms. Jackson Lee. Mr. Chairman?
Mr. Nadler. Will the gentleman yield?
Ms. Jackson Lee. Mr. Chairman?
Mr. Nadler. Will the gentleman yield for a question?
Ms. Jackson Lee. Mr. Chairman?
Mr. Nadler. Will the gentleman yield for a question?
Mr. Chabot. I've already yielded back my time.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. Okay, the gentlewoman from Texas,
Ms. Jackson Lee, is recognized for 5 minutes.
Ms. Jackson Lee. I thank you very much, Mr. Chairman.
I think what should be recognized is the fact that we are
hundreds or maybe thousands of miles from any young girl's
home, and we are here in the United States Congress, acting
upon a law that will impact them.
I rise to support the gentleman's amendment, because I
believe if we can intervene in a child's life who has the
necessity of dealing with the legal system, then we can
likewise intervene and expand the counselors and comforting
individuals that may be able to assist that particular child;
that, in fact, what we want is in the best interest for that
child and the best interest for those who would rise to be
supportive.
We don't want them being carried away and imprisoned. And
if that be the case, that we are allowing States to proceed
accordingly--not by this legislation, this is Federal
legislation that is interfering with States' rights, if you
will.
And, therefore, I would argue that we can equally provide
extra comfort, an extra measure of comfort, by listing those
who are in good stead, comforting persons to the child, in this
instance, grandparent or sibling--and I will have additional
amendment--of the minor, people who they can rely upon in times
of trouble.
This makes this a more humane bill. It makes it more
reasonable. And it's certainly not contradictory to our already
intrusive legislative position that we take today.
I yield back. I yield to the gentleman for a question. Mr.
Nadler, I yield.
Mr. Nadler. Thank you.
I wanted to make one comment, and then ask if Mr. Chabot
would answer a question.
The comment I'll make, I was struck by----
Chairman Sensenbrenner. The gentlewoman from Texas has to
remain in the room, because the time belongs to her.
The gentleman may proceed.
Mr. Nadler. Thank you.
It struck me, when Mr. Chabot said that limiting the
amendment--passing this amendment would violate the State's
right of the State which has the parental consent law.
It seems to me what this bill is, is really akin to the
Fugitive Slave Act of the 1850's where you're enabling one
State in the South, which had slavery, to reach over into
another State, New York or Massachusetts, and say, ``We want
our slave back. That person is a slave here, and Massachusetts
cannot grant him or her freedom, because we're going to grab it
back. And the Federal Government is going to enforce that.''
What you're saying here, with this bill, is that the minor
belongs to the State and that if she goes to another State, the
Federal Government is going to yank her back so she can't take
advantage of the law of the State which she believes is more
appropriate to her.
And anybody who helps her is going to go to jail because
that State has the right over her because she came from that
State, and how dare she try and how dare anybody help her try
to go to another State, because the State owns her.
That's what this bill is really about.
But let me ask Mr. Chabot the following question: What
would you say, in light of your comment to a moment ago, to a
situation in which there is a one-parent family--the mother is
dead; the father is the only parent--there's a daughter and a
son, let's say. Let's say the father rapes the daughter. Let's
say the local judge has never granted a judicial bypass. Let's
say he's announced that, because he's an anti-choice candidate;
let's say he announced in the last election that he'll never
grant a judicial bypass. There are such judges.
So you're faced with a situation--she's faced with a
situation that she can't go to her father who impregnated her.
She can't go to the judge who has announced he will never grant
a judicial bypass. Her brother said--she says to her brother,
``Help me go to the neighboring State where I can get an
abortion.'' If we don't pass this amendment, what do you say to
that situation, sir?
Mr. Chabot. Will the gentlelady yield?
Ms. Jackson Lee. I'm happy to yield.
Mr. Chabot. I thank the gentlelady for yielding.
The gentleman has set up a hypothetical situation which, in
real life, I don't think would happen.
Mr. Nadler. It has happened.
Mr. Chabot. That would be unconstitutional relative to that
judge's handling of that situation.
The judicial bypass procedure is there to protect young
girls under difficult circumstances.
And I would argue that, again----
Ms. Jackson Lee. Reclaiming my time.
Mr. Chabot.--the whole purpose of this legislation is----
Chairman Sensenbrenner. The time belongs to the gentlewoman
from Texas.
Ms. Jackson Lee. Reclaiming my time. Reclaiming my time, I
yield to the gentleman from New York.
Mr. Nadler. Thank you.
You say the situation couldn't exist; it has existed in
certain situations. The judge may be acting unconstitutionally;
by the time that gets to the Supreme Court, they baby is 3
years old. Pregnancies don't last for 9 or 10 years, during
which this can be litigated through several levels of appeal.
The answer is, without this amendment, the bill puts that
young girl at the total mercy of a particular judge, who in
many cases, as we know to be the case, will never grant a
judicial bypass. We know that that's an illusory remedy, in
most cases. And talking about it as if it's always a remedy is
simply ignoring the fact.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The question is on the amendment by the gentleman from New
York, Mr. Nadler.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. And the gentleman from New York
wants a rollcall, correct?
Mr. Nadler. Yes, indeed.
Chairman Sensenbrenner. Those in favor of the Nadler
amendment will, as your names are called, answer aye. Those
opposed, no. And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no.
Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no.
Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye.
Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Any Members who wish to cast or
change their vote?
The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote?
If not, the clerk will report.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. The clerk will try again to report.
The Clerk. Mr. Chairman, there are 11 ayes and 16 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Before the recognizing the person to offer the next
amendment, let me give a scheduling heads-up. It is the
intention of the Chair to recess the Committee as soon as the
bell rings for the next vote. There will then be an hour's
debate on the rule, and the Committee will reconvene
immediately after the vote on the rule on the budget. So it
will be an hour's debate on the rule for a lunch hour or
whatever, and we'll come back after the next series of votes
and finish this bill.
However, the gentleman from North Carolina, Mr. Coble,
would like to ask Members of the Courts Subcommittee to stay at
the beginning of this recess for a quick markup on legislation.
So when the bell rings, the Chair is going to ask everybody to
speed it up, so the Coble Subcommittee can markup and get their
bill reported out.
And then we'll come back after the vote on the rule for the
budget.
Are there further amendments?
Mr. Frank. Mr. Chairman?
Mr. Scott. Mr. Chairman?
Ms. Jackson Lee. Amendment----
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Frank.
Mr. Frank. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. Very briefly.
But I was very struck by the comments from the gentleman
from Ohio, and I want to acknowledge what appears to be a
consensus that I had not previously thought existed, namely
that judicial bypass for a minor is an important constitutional
principle.
I had previously thought that there was, on the part of
those who would like to make abortion illegal, opposition to
the existence of judicial bypass. My recollection is that many
of the statutes passed did not allow a judicial bypass, and
that was something that many people felt was forced on them by
the courts.
So I am particularly struck to hear how often the judicial
bypass procedure is invoked in this debate as a saving grace.
And I want to say that while some of my colleagues may have
come late to the notion of defending the existence of judicial
bypass, better late than never.
I yield back.
Chairman Sensenbrenner. Are there further amendments?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 476, offered by Mr. Scott.
Page 3, after line 14, insert the following: (2) The
prohibition----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, this is the taxicab exemption.
The bill criminalizes anyone who knowingly transports an
individual across State lines in order to have an abortion. The
way the bill is written, this would include taxicab drivers,
limo drivers, the person who sells train tickets or anything
else. It also takes--all it takes for--is an individual in
question to mention that she is crossing State lines on the
mode of transportation in order to have an abortion, and the
operator of that mode of transportation will be required to
ensure that she's complied--she's in compliance with her home
State's parental notification laws or risk prosecution.
Please note that the bill specifically requires intent for
the transportation and abortion but does not require knowledge
of compliance with the State's parental consent and
notification laws. The bill says that you knowingly transport
with the intent to obtain an abortion when in fact the parental
consent and notification laws are not complied with.
And so, if a teenager in Virginia calls a taxi and asks to
go to an abortion clinic in Maryland, and acknowledges during
the trip what she intends to do, the taxicab driver, the
dispatcher, maybe the taxicab company, are all criminally
liable under the bill.
This amendment would exempt the application of the bill to
those who are in the business of providing public or private
transportation, such as taxicabs, regardless of what
information the riders tell them. Those folks have enough to
worry about, without making them criminally liable for
transporting an individual who intends to get an abortion.
Now, Mr. Chairman, it's important to note that the bill
does not prohibit a teenager from driving herself across State
lines to evade parental consent laws. It only prohibits someone
from transporting her or accompanying her--whatever
``transport'' means; it's not defined in the bill.
So I would hope that we will not criminalize the taxicab
driver for answering a call and taking someone to where they
want to go.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
This amendment is totally unnecessary, because taxicab
drivers are not liable under H.R. 476. Subsection (a)(1) allows
for the conviction of an individual who knowingly transports a
minor across State line ``with the intent that such individual
obtain an abortion.''
Although a taxicab driver may have the knowledge that the
minor that he or she is transporting will obtain an abortion as
soon as she arrives at her destination, his or her intent is
not that the minor obtain an abortion. Rather, it's to
transport the minor to her destination of choice, whether it's
an abortion clinic or a shopping mall. In other words, the
taxicab driver's reason for transporting the minor is to
receive the fare, not to ensure that she obtains an abortion.
Thus, a taxicab driver does not have the requisite intent
necessary for prosecution under 476, so the amendment is
totally unnecessary.
And I yield back the balance of my time.
Chairman Sensenbrenner. Pursuant to the Chair's prior
announcement, the Committee is recessed until immediately after
the vote on the rule on the budget.
[Recess.]
Chairman Sensenbrenner. The Committee be in order.
When the Committee recessed, the bill H.R. 476, a motion to
report favorably had been made. The bill was open for amendment
at any point. And pending was an amendment by the gentleman
Virginia, Mr. Scott, relative to taxi drivers.
Is there further discussion? If not, those in favor of the
Scott amendment will say aye.
Opposed, nay.
The aye does not have it, and the amendment is not agreed
to.
Are there further amendments to the bill?
If there are no further amendments, without objection, the
previous question on the bill is ordered. And we will await for
19 folks to appear, and we will then have a vote on reporting
the bill out favorably. Without objection, so ordered.
Those here, please don't leave. And would the staff on both
sides get the dragnet out, please?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Scott. It appears that there's still a vote going on. I
would hope that we would delay the final gavel until well after
the rollcall is closed on the floor.
Chairman Sensenbrenner. The clerk will be instructed to
call the roll slowly.
Can she do that?
Mr. Hyde. Mr. Chairman, that's a motion to adjourn that's
pending now, carrying forth the motion, and one that's brought
with substance.
Chairman Sensenbrenner. That's not a motion to adjourn.
It's----
Mr. Scott. It's a motion to table.
Chairman Sensenbrenner. It's a motion to table.
Mr. Scott. A motion to table the motion to reconsider.
Chairman Sensenbrenner. Yes. Also quite important.
Mr. Scott. Equally important.
Chairman Sensenbrenner. Yes.
Mark?
Mr. Green. I'm not going to leave. [Laughter.]
Chairman Sensenbrenner. Okay. Short leash time.
Mr. Green. I'll be out here.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The previous question has already
been ordered on amendments, so the question is on reporting the
bill favorably.
Ms. Jackson Lee. I'd like to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
We have been going through this bill. It's a very important
bill. You indicated that we would start this Committee after
the vote. The vote is not even closed. We came quickly over
here, and I just raise a personal protest for the openness and
bipartisanship of this Committee.
I indicated by call to the Committee that I was en route,
on the Democratic side, coming through door, which I did. And I
can't imagine how, in a manner of seconds, the previous
question has been called, and I'm walking through the door.
This is important legislation. Constitutional issues are
being raised. And I would hope that there would be a
possibility of a Member being able to submit an amendment that
she believes would add to the clarification of the
constitutional issue----
Chairman Sensenbrenner. No.
Ms. Jackson Lee.--and the importance of the issue.
Chairman Sensenbrenner. The Chair will state that he called
the Committee to order. There was a vote on the Scott
amendment. A working quorum was present; a working quorum of 13
was present. The Chair then called for other amendments; there
were no other amendments that were offered. And the Chair then
asked unanimous consent that the previous question be ordered,
and there was no objection. And the previous question was
ordered pursuant to the unanimous consent agreement.
Mr. Scott. Mr. Chairman?
Mr. Watt. Mr. Chairman?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. A reporting quorum is now present.
Mr. Scott. Mr. Chairman?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The Committee now returns to the
pending, unfinished business upon which the previous question--
--
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner.--was ordered on H.R. 476.
The question is on the motion to report favorably the bill
H.R.----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner.--476.
For what purpose does the gentleman from North Carolina
seek recognition?
Mr. Watt. Mr. Chairman, I move to reconsider the vote on
the previous question.
Chairman Sensenbrenner. The question is, shall the motion
ordering the previous question be reconsidered?
Those in favor will say aye.
Opposed, no.
In the opinion of the Chair, the noes have it. The noes
have it, and the motion----
Mr. Watt. Mr. Chairman, I ask for a recorded vote on that.
Chairman Sensenbrenner. The recorded vote is ordered.
The question is on reconsidering ordering the previous
question.
Those in favor will, as your names are called, answer aye.
Those opposed, no. And the clerk will call the role.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Gekas?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Goodlatte?
[No response.]
The Clerk. Mr. Bryant?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no.
Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. What is this? Yes.
The Clerk. Mr. Nadler, aye.
Mr. Scott?
Mr. Scott. Yes.
The Clerk. Mr. Scott, aye.
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members who
wish to record or change their vote?
The gentleman from California, Mr. Issa.
Mr. Issa. No, Mr. Chairman.
The Clerk. Mr. Issa, no.
Chairman Sensenbrenner. Other Members who wish to record or
change their vote? If there are none, the clerk will report.
The Clerk. Mr. Chairman, there are seven ayes and 14----
Mr. Cannon. Mr. Chairman, how am I recorded?
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. No.
Chairman Sensenbrenner. The gentleman from Pennsylvania,
Mr. Gekas.
Mr. Gekas. No.
Chairman Sensenbrenner. The clerk will report again.
The Clerk. Mr. Chairman, there are seven ayes and 16 nays.
Chairman Sensenbrenner. And the motion to reconsider----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner.--is not agreed to.
The question is----
Mr. Watt. Parliamentary inquiry.
Chairman Sensenbrenner. State your parliamentary inquiry.
Mr. Watt. Mr. Chairman, my parliamentary inquiry is this:
When the Chair says that the Committee is going to reconvene
after a vote, would it be proper for the Chair to reconvene
before the vote has closed on the floor, exactly what happened
this case, because I came----
Chairman Sensenbrenner. The Chair will respond that Members
had an opportunity to record their votes and to come back.
Mr. Watt. I--I----
Chairman Sensenbrenner. There were enough Members on both
sides of the aisle coming back to provide a working quorum. The
Chair did not start the Committee up until we had a working
quorum.
The question is now on the motion to report the bill
favorably.
Ms. Jackson Lee. Parliamentary inquiry, Mr. Chairman.
Mr. Nadler. Mr. Chairman, parliamentary inquiry.
Ms. Jackson Lee. Parliamentary inquiry, Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. Let me just, with all due respect, could
I--could we get an annunciation of the what the Chairman said?
The question of Mr. Watt was, the end of a vote, is it not the
closing of the vote, as opposed to in the midst of the vote. My
understanding was----
Chairman Sensenbrenner. The Chair will----
Ms. Jackson Lee.--we would reconvene----
Chairman Sensenbrenner.--respond this way: The Chair has
been on this Committee for almost 24 years----
Ms. Jackson Lee. Yes, sir.
Chairman Sensenbrenner.--under three Chairman before
myself. When the Chair has requested the Members to return
immediately after a vote, the lights don't have to go off up on
the clock. As soon as a reporting--or, a working quorum is
present, the Committee has resumed its sitting.
And there was an amendment that was disposed of. The Chair
then said--called for further amendments; there were no further
amendments that were offered. The Chair then said, there being
no further amendments, without objection, the previous question
is ordered; there was no objection to ordering the previous
question. So there then was a motion to reconsider ordering the
previous question; that was just not agreed to.
So, under the rules, the question is now on whether or not
to----
Ms. Waters. Parliamentary inquiry, Mr. Chairman.
Chairman Sensenbrenner.--report the bill favorably.
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California.
Ms. Waters. Mr. Chairman, I just heard your explanation for
why you proceeded with the work of the Committee and cut off
the opportunity for amendments. And certainly, you have the
gavel and you can do that. However----
Chairman Sensenbrenner. That's not a parliamentary inquiry.
The Chair has stated that he asked unanimous consent for
ordering the previous question, and that has been the standard
procedure for as long as I have been around, when we are done
with amendments, and the Chair calls for amendments, and nobody
seeks to offer an amendment.
The gentlewoman from California's statement is not a
parliamentary inquiry.
Ms. Waters. Well, I have a parliamentary inquiry.
Chairman Sensenbrenner. Again, there were--there were
bipartisan representations present, or people present. Any
Member could have objected to ordering the previous question,
in which case the previous question was not ordered.
The previous question is ordered, that brings immediately
to the vote, the question of reporting the bill favorably.
Those in favor will say aye.
Ms. Waters. Mr. Chairman, whether you recognize me or not--
--
Chairman Sensenbrenner. Those opposed will say----
Ms. Waters.--it's an abuse of power.
Chairman Sensenbrenner. Those opposed will say no.
Ms. Waters. Simply an abuse of power. That's all it is.
Chairman Sensenbrenner. The ayes appear--the Chair just
follows the rules and, you know----
Mr. Nadler. Mr. Chairman, I ask for a recorded vote.
Chairman Sensenbrenner. The ayes appear to have it. The
ayes have it----
Mr. Nadler. Mr. Chairman, I ask for a recorded vote.
Chairman Sensenbrenner. Without--a recorded vote is
ordered.
Those in favor of reporting the bill favorably will vote
aye. Those opposed will vote no. And the clerk will call the
roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye.
Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye.
Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Bryant?
Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye.
Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Mr. Chairman, I am going to vote on this under
protest, because of the deliberate----
Chairman Sensenbrenner. The--the----
Mr. Nadler.--to bring this Committee into session before--
--
Chairman Sensenbrenner. The gentleman from New York--the
gentleman from New York----
Mr. Nadler.--before--before Members came back, before the
vote was concluded on the floor----
Chairman Sensenbrenner. The gentleman from New York will
cast vote----
Mr. Nadler.--when the Chairman knew there were two
amendments----
Chairman Sensenbrenner.--and not debate.
Mr. Nadler.--when the Chair knew there were two amendments
to be----
Chairman Sensenbrenner. The Clerk will continue call the
roll.
The Clerk. Mr. Scott?
Mr. Nadler.--to be introduced.
The Clerk. Mr. Watt?
Mr. Nadler. It is an outrage that the minority is denied
its two amendments.
The Clerk. Ms. Lofgren?
Mr. Nadler. And if that's the practice in this Committee--
--
The Clerk. Ms. Jackson Lee?
Mr. Nadler.--it's going to be unpleasant in the few
meetings.
Ms. Jackson Lee. I am to be recorded as present and in
protest. I will not vote on this bill, because there has been
no opportunity for us to debate this bill fully.
Present and not--and in protest.
The Clerk. Ms. Waters?
Ms. Waters. And I don't care what the Chairman says. He's
abusing power, and he's used his gavel in a manner that I don't
expect him to use it in.
Chairman Sensenbrenner. The gentlewoman----
Ms. Waters. I don't like it.
Chairman Sensenbrenner.--from California will----
Ms. Waters. This side of the aisle does not like it.
Chairman Sensenbrenner.--cast a vote and----
Ms. Waters. And we're not going to put up with this.
If you want us to be disruptive, we know how to do that.
And I vote no on the bill.
The Clerk. Ms. Waters, no.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no.
Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members in the
room who wish to cast or change their vote?
The gentleman from South Carolina?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Mr. Chairman, how am I recorded?
The Clerk. Mr. Nadler is not recorded.
Mr. Nadler. You're sure I'm not recorded?
The Clerk. No, you're not recorded, sir.
Mr. Nadler. Then I'll vote no under protest.
The Clerk. Mr. Nadler, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Mr. Chairman, I'm not sure my name was ever
called, but if it was, I intended to vote no.
Chairman Sensenbrenner. How is Mr. Watt recorded?
The Clerk. I don't have a vote for Mr. Watt.
Mr. Watt. I just said, I intended to vote no.
The Clerk. Mr. Watt, no.
Ms. Jackson Lee. How am I recorded, Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas?
The Clerk. Ms. Jackson Lee is a present----
Ms. Jackson Lee. In protest.
The Clerk.--under protest.
Ms. Jackson Lee. Thank you.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 19 ayes and six nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to.
All Members will be given 2 days, as provided by House
rules, in which to submit additional dissenting, supplemental,
or minority views.
There being no further business to come before the meeting
of the Committee, the Committee stands adjourned.
[Whereupon, at 3:54 p.m., the Committee was adjourned.]
Dissenting Views
We strongly dissent from H.R. 476. This legislation will
increase health risks to young women who choose to have an
abortion, is anti-family, and is very likely unconstitutional.
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,
as well as leading organizations of medical professionals
concerned with the welfare of pregnant teens.\1\
---------------------------------------------------------------------------
\1\ American Civil Liberties Union, Memorandum to Interested
Persons Regarding the Teen Endangerment Act (August 30, 2001); American
Academy of Pediatrics, American College of Obstetricians and
Gynecologists, American Medical Women's Associan, Society for
Adolescent Medicine, Letter to Members of the House of Representatives,
(April 2, 2001); National Abortion and Reproductive Rights Action
League, The ``Child Custody Protection Act'' Threatens Young Women's
Health, (January 21, 2002); American Medical Association, Council on
Ethical and Judicial Affairs, Report H; House of Delegates Meeting,
(June 1992); American Public Health Association, The Adolescent Right
to Confidential Care When Considering Abortion, Policy Statement; Vol.
97, No. 5, (May 1996); National Abortion Federation, Oppose H.R. 476,
the ``Child Custody Protection Act,'' (2001); Center for Reproductive
Law and Policy, The Child Custody Protection Act (CCPA): Creating Chaos
and Punishing Adolescents, (September 2001).
---------------------------------------------------------------------------
The ``Child Custody Protection Act'' would provide civil
and criminal penalties for any individual who ``knowingly
transport[s] 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 a State where the individual
resides. . . .'' \2\ The proposed law would not require that
the defendant know that the State's parental involvement law
has not been satisfied, or that the defendant intended to aid
in its circumvention. Moreover, the legislation contains no
exceptions for any close adult relative other than the parents
or guardians of the minor. It could conceivably provide prison
time for a grandparent, adult sibling, or clergy person and
make that individual subject to a civil action by a parent who
had raped and impregnated the minor. Furthermore, it would
violate fundamental principles of Federalism by applying
criminal and civil sanctions based on the law of one State for
legal actions taken in a second State. There is no requirement
whatsoever that the minor be taken by force or coercion.
---------------------------------------------------------------------------
\2\ H.R. 476, Sec. 2(a), creating a new 18 U.S.C. 2431(a)(1).
---------------------------------------------------------------------------
This is the third Congress in a row that the House has
considered this legislation, despite the failure on the part of
any of its proponents to demonstrate that young women are being
taken against their wills to other States, or are being coerced
into having abortions.\3\
---------------------------------------------------------------------------
\3\ H.R. 476, 107th Cong. (Feb. 6, 2001), no Senate counterpart;
H.R. 1218, 106th Cong. (March 23, 1999), Passed House 270-159 (Roll no
26), placed on Senate Legislative Calendar, No. 203, no further
consideration, S. 661, 106th Cong. (March 18, 1999), referred to
Judiciary Committee, no further action; H.R. 3682, 105th Cong. (April
1, 1998), Passed House 276-150 (Roll No. 280), Placed on Senate
Legislative Calendar No 559, no further action. S.1654, 105th Cong.
(February 12, 1998), Cloture not invoked in Senate Vote 54-45 (Roll No.
282). The House has never made any amendments in order during floor
consideration.
---------------------------------------------------------------------------
Contrary to its stated intent, instead of simply
facilitating State-required parental consent and notification
laws, H.R. 476 will dramatically increase the dangers young
women will face in dealing with unintended pregnancies. In
fact, the bill contains no prohibitions whatsoever against
women traveling across State lines alone to exercise their
constitutional right to choose. It will only make it more
difficult for them to seek the assistance and guidance of
trusted adults such as grandparents, older siblings, aunts,
uncles, or clergy. 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 caring
adults 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.
Finally, we strongly object to the Majority's abuse of
power to disenfranchise Members of the Minority by calling the
Committee back into session while a vote on the floor was still
open, and moving to a final vote on the bill before many
Members had returned from the floor. The Majority had been well
advised prior to the vote that only two more amendments would
be offered and that, in an effort to promote comity and
conclude consideration of this bill in a non-dilatory fashion,
none of the Minority's other amendments would be offered.
Furthermore, in an effort to avoid repetitive debate, the
Minority offered no amendments at Subcommittee, holding all
such debate for full Committee. In view of our past experience
that no amendments have been made in order when the full House
considered this bill in the last two Congresses, the actions of
the Majority are tantamount to an unjustified and indefensible
denial of the right of Members of the Committee to be heard and
to speak for the citizens they represent. Many of us expressed
at the time our concern that such an abuse of power was a poor
response to the efforts of the Minority to work cooperatively
with the Majority.
For these and the other reasons set forth herein, we
dissent from H.R. 476.
I. H.R. 476 Will Endanger Young Women
Although an 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.\4\
Moreover, responsible health care providers do not provide
these services unless they are confident that the patient has
someone who will accompany them and assist them following the
procedure. 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.
---------------------------------------------------------------------------
\4\ 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 young women 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.\5\
---------------------------------------------------------------------------
\5\ 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., Serial 102, at 17 (May 28, 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 11-year-old from Maryland, who was
impregnated by her stepfather, 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. 476, Vicki could have been federally prosecuted for helping
her young niece cope with this pregnancy resulting from incest).
---------------------------------------------------------------------------
The Bells were the parents of a daughter who died 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. 476 could have changed this outcome or
would have convinced Becky to confide in her parents about her
pregnancy. Regrettably, healthy family communication simply
cannot be legislated.
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.\6\ 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.\7\ 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.
---------------------------------------------------------------------------
\6\ See Henshaw at 196.
\7\ 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.\8\
---------------------------------------------------------------------------
\8\ 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, 476 (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).
---------------------------------------------------------------------------
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.\9\
---------------------------------------------------------------------------
\9\ The courts in Massachusetts, Minnesota, and Rhode Island are
not open in the evenings or on weekends. See Patricia Donovan, supra
note 8, at 259.
---------------------------------------------------------------------------
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.\10\
---------------------------------------------------------------------------
\10\ 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., Serial 16, at 23 (May 27, 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.'' \11\
---------------------------------------------------------------------------
\11\ See Council on Ethical and Judicial Affairs, AMA, ``Mandatory
Parental Consent to Abortion,'' JAMA, vol. 269, no. 1 (Jan. 6, 1993):
83
---------------------------------------------------------------------------
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.\12\
---------------------------------------------------------------------------
\12\ 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 Subcommittee heard testimony from the Rev. Katherine
Ragsdale, an Episcopal Priest and Vicar of St. David's
Episcopal Church, who discussed the case of a 15-year-old girl
who had been raped and had become pregnant. The girl could not
go to her father who would have thrown her out of the house,
and she had no other family to whom she could turn. Of course,
even if she did, this legislation would place those other
relatives in legal jeopardy. Although they did not cross State
lines, Rev. Ragsdale drove the young woman rather than allowing
her to trave several hours alone by bus to and from the
procedure. Rev. Ragsdale movingly described the pastoral
counseling that she provided to the young woman during the
drive. This bill would make criminals of clergy who provided
this sort of pastoral care and guidance. Rev. Ragsdale's
observations are worth repeating:
``Mr. Chairman, you talked about all the reasons it is
important for a girl to have parental involvement
before a medical procedure; and you are absolutely
right. And if I thought that this bill would accomplish
parental involvement, if I thought it would eliminate
the kind of pain Ms. Roberts spoke about, this panel
would be even more on balance than it is because I
would be on the other side, but it won't do that. This
bill isn't about resolving problems. This bill is about
punishing people. And while I understand that even the
best of us have punitive impulses from time to time, we
have no business codifying them. They are venal. They
are beneath the dignity of any member of the human
family.'' \13\
---------------------------------------------------------------------------
\13\ Hearing Before the Subcommittee on the Constitution of the
House Committee on the Judiciary on H.R. 476, at 11 (107th Congress,
September 6, 2001)(Testimony of Rev. Katherine Ragsdale).
The argument has been made by proponents of H.R. 476 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,\14\ 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.\15\
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.\16\ 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.''
\17\ Accordingly, it is not always 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.
---------------------------------------------------------------------------
\14\ 2 F.3d 686 (6th Cir. 1993).
\15\ 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.
\16\ See Cleveland Surgi-Center, 2 F.3d at 691.
\17\ Id.
---------------------------------------------------------------------------
II. H.R. 476 is Anti-Family
H.R. 476 is hostile to the well-being of families. Despite
proponents' belief that H.R. 476 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.\18\
---------------------------------------------------------------------------
\18\ See Henshaw, at 207.
---------------------------------------------------------------------------
Although the bill excepts parents from criminal and civil
liability, even non-parent adults who are helping to raise 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. The Majority
rejected an amendment by Mr. Nadler that would have excepted a
grandparent or adult sibling from the bill's penalties. An
amendment offered by Mr. Scott would have exempted an innocent
common carrier who may have transported the minor was similarly
rejected.\19\ The Majority also defeated an amendment offered
by Ms. Waters that would have granted an exception where a
parent or any other person who has permanent or temporary care
or custody or responsibility for the supervision of the minor,
or any other household member had caused the pregnancy. The
absence of such an exception locks victims of incest into
requiring consent from the incestuous parent. Other amendments
the Minority had prepared could not be offered because of the
Chairman's action to cut off debate described above.
---------------------------------------------------------------------------
\19\ H.R. 476, proposed 18 U.S.C. Sec. 2431(e)(2). Of the 33 States
with parental involvement laws (not including the 10 States whose laws
have been enjoined by the courts or are otherwise not enforceable), 23
have laws that fit H.R. 476's definition of who may assist a minor.
Nine States have a broader definition of parental involvement. Only
Illinois and South Carolina openly allow consent or notice to a
grandparent. See ``The Child Custody Protection Act: Creating Chaos and
Punishing Adolescents,'' Center for Reproductive Law and Policy, 1
(August 2001); ``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. 476.
H.R. 476 does nothing to help build open, trusting
relationships between family members. The net result will be
the exact opposite of the sponsors' intent--weakening family
communications and creating suspicion and mistrust among close
family members.
III. H.R. 476 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.'' \20\ In other
words, this law makes it a federal crime to assist a pregnant
minor to obtain a lawful abortion without requiring 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.
---------------------------------------------------------------------------
\20\ H.R. 476, proposed 18 U.S.C. Sec. 2431(a)(1).
---------------------------------------------------------------------------
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 . .
.'' \21\
---------------------------------------------------------------------------
\21\ 18 U.S.C. Sec. 2421.
---------------------------------------------------------------------------
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. 476 has no such intent requirement and, therefore,
imposes strict criminal liability for anyone in violation.\22\
Where the Mann Act purports to guard against corruption of
minors, a laudable but not constitutionally-protected purpose,
H.R. 476 imposes significant restrictions on a
constitutionally-protected right to an abortion. Thus, it seems
to us that the analogy is at best weak. Moreover, the Mann Act
requires that the minor be transported across State lines for
the purpose of engaging in an act that is illegal, while this
legislation would impose civil and criminal liability for the
act of taking a minor across State lines to engage in an
activity which is legal in that second State, and
constitutionally protected. The analogy is simply inapplicable.
---------------------------------------------------------------------------
\22\ The affirmative defense available in H.R. 476 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.
IV. H.R. 476 Is Likely Unconstitutional
By imposing substantial new obstacles and dangers in the
path of a minor seeking an abortion, H.R. 476 also raises a
number of serious constitutional concerns. First, if enacted,
H.R. 476 could 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. 476] 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).'' \23\
---------------------------------------------------------------------------
\23\ 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 (September 2, 2001).
---------------------------------------------------------------------------
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. 476 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. 476 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. Furthermore, this legislation
would actually undermine fundamental principles of federalism
by nullifying the policies set by the laws the majority of
States in this country that have chosen not to require parental
notification and consent in these cases, or that have parental
involvement laws less restrictive than the ones incorporated
into H.R. 476. 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. 476 does.\24\ The Court reaffirmed this
principle in its landmark right to travel decision, Saenz v.
Roe.\25\ 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.\26\ 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.\27\ This
principle applies to minors' rights to seek an abortion on non-
discriminatory terms as well as to welfare benefits. In Saenz,
the Court specifically referred to Doe v. Bolton,\28\ 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.'' \29\ It also is clear that such protections
will flow to minors given that Planned Parenthood v. Danforth
\30\ held that pregnant minors have a constitutional right to
choose whether to terminate a pregnancy.
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\24\ 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.'')).
\25\ 119 S. Ct. 1518, 1525-1527 (1999) (describing the various
components of the right to travel and their constitutional
derivations).
\26\ See id. at 1526-1527.
\27\ See id.
\28\ 410 U.S. 179.
\29\ Id. at 200.
\30\ 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.\31\ Additionally, the bill may impose an ``undue
burden'' on the right to choose an abortion.\32\ The Center for
Reproductive Law & Policy also has written that H.R. 476
violates the First Amendment's right to associate as well as
the Equal Protection Principle of the Fifth Amendment.\33\
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\31\ 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. 476 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).
\32\ See Tribe Letter.
\33\ 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. 476 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. 476
is a burdensome attack on the rights and well-being of young
women, we dissent from this legislation.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.