[House Report 112-671]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-671
======================================================================
CHILD INTERSTATE ABORTION NOTIFICATION ACT
_______
September 14, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2299]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2299) 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.......................... 4
Hearings......................................................... 45
Committee Consideration.......................................... 45
Committee Votes.................................................. 45
Committee Oversight Findings..................................... 58
New Budget Authority and Tax Expenditures........................ 58
Congressional Budget Office Cost Estimate........................ 58
Performance Goals and Objectives................................. 59
Advisory on Earmarks............................................. 60
Section-by-Section Analysis...................................... 60
Changes in Existing Law Made by the Bill, as Reported............ 62
Dissenting Views................................................. 67
Purpose and Summary
H.R. 2299, the ``Child Interstate Abortion Notification
Act'' (``CIANA''), 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 health and
safety of young girls by protecting the rights of parents to be
involved in the medical decisions of their minor daughters when
such decisions involve interstate abortions.
To achieve these purposes, CIANA contains two sections,
each of which creates a new Federal crime subject to up to a
$100,000 fine, or 1 year in jail, or both.\1\
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\1\Under 18 U.S.C. Sec. 3559(a)(6) (``An offense that is not
specifically classified by a letter grade in the section defining it,
is classified if the maximum term of imprisonment authorized is 1 year
or less but more than 6 months, as a Class A misdemeanor.''), CIANA
would be classified as a Class A misdemeanor. Under the Federal fine
statute, the sentence for a Class A misdemeanor that does not result in
death is not more than $100,000, and for one that does result in death
is not more than $250,000. See 18 U.S.C. Sec. 3571(b)(4)-(5).
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First, CIANA makes it a Federal crime to transport a minor
across state lines to obtain an abortion in another state in
order to avoid a state law requiring parental involvement in a
minor's abortion decision. According to the Guttmacher
Institute, 34 states have laws in effect that require parental
involvement in minors' abortions.\2\ But too often, such laws
are circumvented. Indeed, according to ``The Impact of Laws
Requiring Parental Involvement for Abortion: A Literature
Review,'' published by the Guttmacher Institute in 2009, ``The
clearest documented impact of parental involvement laws is an
increase in the number of minors traveling outside their home
states to obtain abortion services in states that do not
mandate parental involvement or that have less restrictive
laws.''\3\
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\2\Those states are Alabama, Arizona, Arkansas, Colorado, Delaware,
Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska,
North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
West Virginia, Wisconsin and Wyoming.
\3\Amanda Dennis, Stanley K. Henshaw, Theodore J. Joyce, Lawrence
B. Finer, and Kelly Blanchard, ``The Impact of Laws Requiring Parental
Involvement for Abortion: A Literature Review'' (Guttmacher Institute:
March 2009) at 1.
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The purpose of the first section of CIANA is to prevent
people--including abusive boyfriends and older men who may have
committed rape--from pressuring young girls into circumventing
their state's parental involvement laws by receiving a secret
out-of-state abortion. This section of CIANA does not apply to
minors themselves, or to their parents. It also does not apply
in life-threatening emergencies that may require that an
abortion be provided immediately.
Second, CIANA applies when a minor from one state crosses
state lines to have an abortion in another state that does not
have a state law requiring parental involvement in a minor's
abortion decision, or when a minor from one state crosses state
lines to have an abortion in another state that does have a
state law requiring parental involvement in a minor's abortion
decision, but the physician fails to comply with such law. In
such a case, CIANA makes it a Federal crime for the abortion
provider to fail to give one of the minor's parents, or a legal
guardian if necessary, 24 hours' notice (or notice by mail if
necessary) of the minor's abortion decision before the abortion
is performed. The purpose of this section is to protect
fundamental parental rights by giving parents a chance to help
their young daughters through difficult circumstances as best
they can, including by giving a health care provider their
daughter's medical history to ensure she receives safe medical
care and any necessary follow-up treatment.
Dr. Bruce A. Lucero, an abortion provider, has supported
this legislation because ``parents are usually the ones who can
best help their teenager consider her options'' and because
``patients who receive abortions at out-of-state clinics
frequently do not return for follow-up care, which can lead to
dangerous complications.''\4\ Parental notification also allows
parents to assist their daughter in the selection of a
competent abortion provider. This section of CIANA does not
apply in the following circumstances: where the abortion
provider is presented with court papers showing that the
parental involvement law in effect in the minor's state of
residence has been complied with; where the minor states that
she has been the victim of abuse by a parent and the abortion
provider informs the appropriate state authorities of such
abuse; or where a life-threatening emergency may require that
an abortion be provided immediately.
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\4\Bruce A. Lucero, M.D., ``Parental Guidance Needed,'' The New
York Times (July 12, 1998), section 4, at 1.
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CIANA supports state laws that provide parents with the
necessary information to fulfill their obligation to care for
their minor children, and it affirms the common-sense notion
that parents have the legal right to be involved in medical
decisions relating to their minor children when those decisions
involve interstate abortions.
CIANA does not supercede, override, or in any way alter
existing state parental involvement laws. CIANA 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
and to protect parental involvement when minors cross state
lines to obtain an abortion.
The vast majority of States have enacted some form of a
parental involvement law. Such laws reflect widespread
agreement 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. These laws not only help to ensure the health and
safety of pregnant young girls, but also protect fundamental
parental rights.
Despite widespread support for parental involvement laws
and clear public policy considerations justifying them,
substantial evidence exists that such laws are regularly evaded
by adults who transport minors to abortion providers in States
that do not have parental notification or consent laws. CIANA
would curb the interstate circumvention of these laws, thereby
protecting the rights of parents and the interests of
vulnerable minors. CIANA ensures that State parental
involvement laws are not evaded through interstate activity.
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. When parents are not
involved in the abortion decisions of a child, the risks to the
child's health significantly increase. Parental involvement
will ensure that parents have the opportunity to provide
additional medical history and information to abortion
providers prior to performance of an abortion. The medical,
emotional and psychological consequences of an abortion are
serious and lasting. An adequate medical and psychological case
history is important to the physician, and parents can provide
such information for their daughters 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.
Only parents are likely to know a young girl's allergies to
anesthesia and medication or previous bouts with specific
medical conditions, including depression. 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 also improves medical treatment of
pregnant minors by ensuring that parents have adequate
knowledge to recognize and respond to any post-abortion
complications that may develop. Without the knowledge that
their daughters have had abortions, parents are unable to
ensure that their children obtain routine postoperative care
and unable to provide an adequate medical history to physicians
called upon to treat any complications that may arise. These
omissions may allow complications such as infection,
perforation, or depression to continue untreated. Such
complications may be lethal if left untreated.
Teenage pregnancies often occur as a result of predatory
practices of men who are substantially older than the minor
victim, resulting in the transportation of the girl across
State lines by an individual who has a great incentive to avoid
criminal liability for his conduct. Experience suggests that
sexual predators recognize the advantage of their victims
obtaining an abortion. Not only does an abortion eliminate
critical evidence of the criminal conduct, it allows the abuse
to continue undetected. Parental involvement laws ensure that
parents have the opportunity to protect their daughters from
those who would victimize them further.
Background and Need for the Legislation
H.R. 2299 is much-needed legislation, overwhelmingly
supported by the American people, that will protect both the
health and safety of our minor children and parental rights.
SUPPORT FOR CIANA
Polls show that the American people overwhelmingly support
parental involvement laws by huge majorities. A July 2011
Gallup Poll asked ``Do you favor or oppose each of the
following proposals? . . . A law requiring women under 18 to
get parental consent for any abortion.'' 71% responded in
favor, 27% opposed.\5\ An August 2009 Pew Research Center
Survey asked ``Do you strongly favor, favor, oppose, or
strongly oppose? . . . requiring that women under the age of 18
get the consent of at least one parent before they are allowed
to have an abortion.'' 76% responded in favor, (45% strongly
favor, 31% favor), 19% opposed.\6\ An October 2008 Marist Poll
National Survey asked ``Except in a medical emergency, which do
you think is more important: the privacy of a daughter under
the age of 18 to have an abortion or the right of a parent to
know their underage daughter is about to have this surgical
procedure?'' 77% of registered voters, and 78% of registered
Catholic voters supported the parent's right to know.\7\ A
December 2008 Harris Interactive survey commissioned by the
U.S. Conference of Cathlolic Bishops also found that ``73
percent favor laws that require giving parents the chance to be
involved in their minor daughter's abortion decision.''\8\
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\5\http://www.gallup.com/poll/148631/Common-State-Abortion-
Restrictions-Spark-Mixed-Reviews.aspx.
\6\The relevant question appears on page 5 of this document: http:/
/www.pewforum.org/uploadedfiles/Topics/Issues/Abortion/
abortion09topline.pdf. Also, on p.10 of this Pew report from October
2009 there is a comparison of the 2005 & 2009 results of the survey
that may be helpful (support for parental consent was 73% in 2005, 76%
in 2009). See http://www.pewforum.org/uploadedfiles/Topics/Issues/
Abortion/abortion09.pdf.
\7\See page 38 of this appendix of topline data found on the
Knights of Columbus website, available at http://www.kofc.org/un/en/
resources/communications/documents/moralissues_appendix.pdf.
\8\See USCCB press release, available at http://old.usccb.org/comm/
archives/2008/08-206.shtml.
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Earlier polls reveal similar results. In March, 2005, 75%
of over 1,500 registered voters surveyed favored ``requiring
parental notification before a minor could get an abortion,''
and only 18% were opposed.\9\ According to another poll
conducted in 2003, 73% of non-whites and 82% of Hispanics
support parental notification laws.\10\ A Wirthlin Worldwide
poll conducted in October, 2001, found that 83% of those
surveyed support laws requiring notification to one parent
before an abortion can be performed on a minor daughter.\11\
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\9\Quinnipiac University Poll (conducted March 2-7, 2005, with
1,534 registered voters surveyed; margin of error: +/- 2.5%).
\10\Wirthlin Worldwide Poll (October 21-23, 2003).
\11\Wirthlin Worldwide National Poll (October 19-22, 2001).
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African Americans and Hispanics overwhelmingly support
parental notification laws. A Public Opinion Strategies poll
surveyed 1,000 African-American registered voters on the
question: ``Would you favor or oppose a law that would require
a parent or guardian to be notified before a minor child, under
the age of 18, undergoes an abortion procedure?'' 84% favored
such a law (74% ``strongly favor'' and 10% ``somewhat
favor'').\12\
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\12\Public Opinion Strategies Survey (July 30, 2002).
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A Zogby poll of California voters showed that 71% of those
surveyed in that state support laws requiring notification to
one parent before an abortion can be performed on a minor
daughter.\13\
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\13\Zogby California Poll (June 2002).
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Moreover, during the November, 2004, elections, Florida
overwhelmingly passed an amendment to its state constitution
that provides that ``the Legislature is authorized to require
by general law for notification to a parent or guardian of a
minor before the termination of the minor's pregnancy.''\14\
Nearly 65 percent of Florida voters in November, 2004, approved
this state constitutional amendment.\15\
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\14\F.S.A. Const. Art. 10 Sec. 22.
\15\See Jackie Hallifax, ``Group Seeks Parental Notice End,'' The
Brandenton Herald (January 11, 2005) at 5.
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Even more rigid requirements of parental consent are
overwhelmingly supported by the American public. A Gallup poll
conducted in January, 2003, showed that 78% of those surveyed
favor laws requiring a 24-hour waiting period before an
abortion can be obtained, and 73% favor laws requiring minors
to get parental consent before an abortion can be obtained.\16\
These numbers have been confirmed in other polls.\17\ Similar
results are found in polls that consistently reflect over 70%
of the American public support parental consent or notification
laws,\18\ including 69% of the Hispanic population.\19\
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\16\Lydia Saad, Gallup News Service (January 20, 2003).
\17\See Los Angeles Times Poll (June 8-13, 2000); CBS News/New York
Times Poll (January 1998).
\18\See, e.g., CBS News/NY Times Poll (released January 15, 1998)
(78% of those polled favor requiring parental consent before a girl
under 18 years of age could have an abortion); Americans United for
Life, Abortion and Moral Beliefs, A Survey of American Opinion (1991);
Wirthlin Group Survey, Public Opinion, May-June 1989; Life/Contemporary
American Family (released December, 1981) (78% of those polled believed
that ``a girl who is under 18 years of age [should] have to notify her
parents before she can have an abortion'').
\19\Latino Opinions poll (October 5, 2004) (survey of 1,000
national adult Hispanics on the question ``[D]o you support or oppose
requiring underage teenage girls to get permission from their parents
before they are allowed to get an abortion?'' to which 58% reported
``strongly support'' and 11% reported ``somewhat support'').
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As the Associated Press has reported, even ``[o]pponents
[of parental notice laws] agree that young women are better off
telling parents about a pregnancy[.]''\20\
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\20\David Crary, ``Passage of Teen Abortion Bill Called Likely,''
The Associated Press (January 31, 2005).
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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 and the National Abortion and Reproductive
Rights Action League all advise pregnant minors to consult
their parents before proceeding with an abortion.\21\ 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.''\22\
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\21\See 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
February 2, 2005) (``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.''); National Abortion and
Reproductive Rights Action League, Young Women: Reproductive Rights
Issues, at http://www.naral.org/Issues/youngwomen/index.cfm (last
visited February 1, 2005) (``Responsible parents should be involved
when their young daughters face a crisis pregnancy.'').
\22\Council on Ethical and Judicial Affairs, American Medical
Association, ``Mandatory Parental Consent to Abortion,'' 269 JAMA 82,
83 (1993).
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THE SCOPE OF THE INTERSTATE PROBLEM CIANA ADDRESSES
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. As Dr. Anne
Foster Rosales, as Medical Director of Planned Parenthood
Golden Gate in San Francisco, said ``You may see an artificial
decrease in the abortion rate in teens in [a] state [that
adopts a parental involvement law], but when you look at
neighboring states, and the origin of patients, you see that
what's happening is those young women are just shifting
themselves to another state.''\23\
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\23\Carolyn Johnson, ``Abortion Parental Notification Back on
Ballot,'' ABC 7 News (KGO) (November 1, 2006), available at http://
abclocal.go.com/kgo/story?section=news/politics&id=4714527.
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In 1995, Kathryn Kolbert, then an attorney with the Center
for Reproductive Law and Policy (a national legal defense
organization that supports abortion), stated 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.''\24\ She asked, ``How does a
14-year-old get to New Hampshire from Boston without getting a
ride?''\25\ In 2001, 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. The experience of a number of States illuminates
the scope of this problem.
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\24\``Labor of Love Is Deemed Criminal,'' The National Law Journal
(November 11, 1996) at A8.
\25\See ``Woman Charged in Secret Abortion,'' Philadelphia
Inquirer, (September 16, 1995).
\26\Jeff Whelan, ``McGreevey Reveals Latest Abortion Stance,'' The
Star-Ledger (August 30, 2001).
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Pennsylvania
Since Pennsylvania's current parental consent law took
effect in March, 1994, news reports have confirmed that many
Pennsylvania teenagers are going out of state to New Jersey and
New York to obtain abortions. 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 New York 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,'' The New
York Times (December 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
(February 22, 1994).
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Moreover, some abortion clinics in nearby states, such as
New Jersey and Maryland, and others, use the lack of parental
involvement requirements in their own states as a ``selling
point'' in advertising directed at minors in Pennsylvania,
stating ``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 such advertisements are attached at the end of this
report.
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Missouri
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.\33\
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.\34\
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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 (August
1997).
\34\See id. at 1371.
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A St. Louis Post-Dispatch news report confirms that the
Hope Clinic in Illinois continues to attract underage girls
seeking abortions without parental involvement.\35\ A clinic
counselor estimates that she sees two girls each week seeking
to avoid their home state's parental involvement law. One
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 in 1998, and the clinic's executive director
estimates that number is 45% of the total abortions performed
at the clinic. The executive director also estimates that 13%
of the clinic's clients are minors.
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\35\See Kevin McDermott and Mark Schauerte, ``Illinois May Tighten
Rules on Abortions For Teens; Parental Consent Is Not Required;
Abortion Bill Targets Illinois as Teen Haven For Abortion,'' St. Louis
Post-Dispatch (February 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.\36\ A 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.\37\
After the parental consent law was implemented, however, the
average jumped to between 90 and 95 out-of-state abortions per
month, using data from the five states of Rhode Island, New
Hampshire, Connecticut, New York, and Maine, representing one-
third of the abortions obtained by Massachusetts' minors.\38\
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\36\The Massachusetts law was changed in 1997 to require the
consent of one parent (or judicial authorization), rather than both
parents as previously required.
\37\See Virginia G. Cartoof & Lorraine V. Klerman, ``Parental
Consent for Abortion: Impact of the Massachusetts Law,'' American
Journal of Public Health 397 (April 1986).
\38\See id. at 398.
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The study noted that due to what the authors described as
``astute marketing,'' one abortion clinic in New Hampshire was
able to nearly double the monthly average of abortions
performed on Massachusetts minors (from 14 in 1981 to 27 in
1982). The abortionist ``began advertising in the 1982 Yellow
Pages of metropolitan areas along the northern Massachusetts
border, stating `consent for minors not required.'''\39\
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\39\Id. at 399.
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In April 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.\40\
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\40\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 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 abortions. 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.''\41\ 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.''\42\
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\41\Stanley K. Henshaw, ``The Impact of Requirements for Parental
Consent on Minors' Abortions in Mississippi,'' Family Planning
Perspectives (June, 1995) at 121.
\42\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 teen-
agers who cannot tell their parents . . . will go out of state
and have abortions . . .''\43\
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\43\Lisa A. Singh, ``Those Are the People Who Are Being Hurt,''
Style Weekly (February 11, 1997).
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Virginia's parental notification law took effect on July 1,
1997. Initial reports indicated 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).\44\ It appears, however, that Virginia teenagers are
traveling to the District of Columbia in order to obtain an
abortion without involving their parents. In fact, the National
Abortion Federation (``NAF''), which runs a toll-free national
abortion hotline, said that calls from Virginia teenagers
seeking information on how to obtain an abortion out of state
were the largest source of teenage callers seeking out-of-state
abortions, at seven to ten calls per day.\45\ 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.\46\
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\44\Ellen Nakashima, ``Fewer Teens Receiving Abortions In
Virginia,'' The Washington Post (March 3, 1998).
\45\See id.
\46\See id.
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CONGRESSIONAL TESTIMONIALS HIGHLIGHT THE NEED
FOR IMMEDIATE ACTION
At hearings during the 105th, 106th, 107th, and 108th
Congresses, the Subcommittee on the Constitution heard
testimony from two mothers whose daughters were secretly taken
for abortions, with devastating consequences.
Joyce Farley, the mother of a minor girl, recounted how her
12-year-old daughter was provided alcohol, raped, and then
taken out of state by the rapist's mother for an abortion.\47\
In the words of Joyce Farley, the abortion was arranged to
destroy evidence--evidence that her 12-year-old daughter had
been raped.\48\ 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).\49\ Following the abortion, the mother of the
rapist dropped off the child in another town 30 miles from the
child's home.\50\ The child returned to her home with severe
pain and bleeding which revealed complications from an
incomplete abortion.\51\ 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.\52\ Fortunately, Ms. Farley, being a nurse, knew this
advice was wrong and could be harmful, but her daughter would
not have known this.\53\ Because of her mother's intervention,
Ms. Farley's daughter ultimately received further medical care
and a second procedure to complete the abortion.\54\
---------------------------------------------------------------------------
\47\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).
\48\See id.
\49\See id.
\50\See id.
\51\See id.
\52\See id.
\53\See id.
\54\See id.
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As Ms. Farley testified before the House Constitution
Subcommittee in 2004:
[I]n 1995, my then 12-year-old daughter, Crystal, was
intoxicated and raped by a 19-year-old male . . . On
August 31, 1995, I discovered my 13-year-old daughter,
Crystal, was missing from home. An investigation by the
police, school officials and myself revealed the
possibility that Crystal had been transported out of
State for an abortion. I can't begin to tell you the
fear that enveloped me not knowing where my daughter
was, who she was with, if she was in harm's way, and to
learn in this manner that my young daughter was
pregnant. By early afternoon Crystal was home safe with
me, but so much had taken place in that 1 day. The
mother of this 19-year-old male had taken Crystal for
an abortion in the State of New York. Apparently, this
woman decided this was the best solution for the
situation caused by her son, with little regard for the
welfare of my daughter. Situations such as this is what
the Child Custody Act [H.R. 1755 in the 108th Congress,
which included provisions that are also in CIANA] was
designed to help prevent. I am a loving, responsible
parent, whose parenting was interfered with by an adult
unknown to me. My child was taken for a medical
procedure to an unknown facility and physician without
my permission. When Crystal developed complications
from this medical procedure, this physician was not
available. He refused to supply necessary medical
records to a physician that was available to provide
Crystal the medical care she needed. I ask you to
please, in considering the Child Custody Protection
Act, to put aside your personal opinions on abortion.
Please just consider the safety of the minor children
of our Nation whose lives are put at risk when taken
out of their home State . . . Please allow loving,
careful and responsible parents the freedom to provide
the care their adolescent daughters need without
interference from criminals or people who think they
may be helping, but actually cause more harm than good.
An abortion is a medical procedure with physical and
emotional risks. An adolescent who's had an abortion
needs the care and support of family. Crystal,
unfortunately, developed both physical and emotional
side effects. Some of the effects are still present
today after 9 years have lapsed.\55\
---------------------------------------------------------------------------
\55\Child Custody Protection Act: Hearings on H.R. 1755 Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th
Cong., 6-7 (July 20, 2004) (statement of Joyce Farley).
In the 109th Congress, Marcia Carroll testified before the
Constitution Subcommittee and described the following
terrifying story that CIANA, had it been enacted into law,
---------------------------------------------------------------------------
would have prevented:
On Christmas Eve 2004, my daughter informed me she was
pregnant. I assured her I would seek out all resources
and help that was available. As her parents, her father
and I would stand beside her and support any decision
she made. We scheduled appointments with her
pediatrician, her private counselor, and her school
nurse. I followed all of their advice and
recommendations. They referred us to Healthy Beginnings
Plus, Lancaster Family Services, and the WIC program.
They discussed all her options with her. I purposefully
allowed my daughter to speak alone with professionals
so that she would speak her mind and not just say what
she thought I wanted to hear. My daughter chose to have
the baby and raise it. My family fully supported my
daughter's decision to keep her baby and offered her
our love and support.
Subsequently, her boyfriend's family began to harass
my daughter and my family. They started showing up at
our house to express their desire for my daughter to
have an abortion. When that did not work, his
grandmother started calling my daughter without my
knowledge. They would tell her that if she kept the
baby, she couldn't see her boyfriend again. They
threatened to move out of state.
I told his family that my daughter had our full
support in her decision to keep the baby. She also had
the best doctors, counselors, and professionals to help
her through the pregnancy. We all had her best
interests in mind.
The behavior of the boy's family began to concern me
to the point where I called my local police department
for advice. Additionally, I called the number for an
abortion center to see how old you have to be to have
an abortion in our state.
I felt safe when they told me my minor daughter had
to be 16 years of age in the state of Pennsylvania to
have an abortion without parental consent. I found out
later that the Pennsylvania Abortion Control Act
actually says that parental consent is needed for a
minor under 18 years of age. It never occurred to me
that I would need to check the laws of other states
around me. I thought as a resident of the state of
Pennsylvania that she was protected by Pennsylvania
state laws. Boy, was I ever wrong.
On Feb. 16th, I sent my daughter to her bus stop with
$2.00 of lunch money. I thought she was safe at school.
She and her boyfriend even had a prenatal class
scheduled after school.
However, what really happened was that her boyfriend
and his family met with her down the road from her bus
stop and called a taxi. The adults put the children in
the taxi to take them to the train station. His
stepfather met the children at the train station, where
he had to purchase my daughter's ticket since she was
only fourteen. They put the children on the train from
Lancaster to Philadelphia. From there, they took two
subways to New Jersey. That is where his family met the
children and took them to the abortion clinic, where
one of the adults had made the appointment.
When my daughter started to cry and have second
thoughts, they told her they would leave her in New
Jersey. They planned, paid for, coerced, harassed, and
threatened her into having the abortion. They left her
alone during the abortion and went to eat lunch.
After the abortion, his stepfather and grandmother
drove my daughter home from New Jersey and dropped her
off down the road from our house.
My daughter told me that on the way home she started
to cry, they got angry at her and told her there was
nothing to cry about.
Anything could have happened to my daughter at the
abortion facility or on the ride back home. These
people did not know my daughter's medical history, yet
they took her across state lines to have a medical
procedure without my knowledge or consent. Our family
will be responsible for the medical and psychological
consequences for my daughter as a result of this
procedure that was completed unbeknownst to me.
I was so devastated that this could have been done
that I called the local police department to see what
could be done. They were just as shocked and surprised
as I was that there was nothing that could be done in
this horrible situation.
The state of Pennsylvania does have a parental
consent law. Something has to be done to prevent this
from happening to other families. This is just not
acceptable to me and should not happen to families in
this country. If your child goes to her school clinic
for a headache, a registered nurse can't give her a
Tylenol or aspirin without a parent's written
permission.
As a consequence of my daughter being taken out of
our state for an abortion without parental knowledge,
she is suffering intense grief. My daughter cries
herself to sleep at night and lives with this everyday.
I think about what I could or should have done to
keep her safe. Everybody tells me I did everything I
could have and should have done. It doesn't make me
feel any better, knowing everything I did was not
enough to protect my daughter.
It does ease my mind to know with your help that we
can make a difference and change the law to protect
other girls and their families. I urge your support for
The Child Interstate Abortion Notification Act. It is
critical that this law passes in Congress. The right of
parents to protect the health and welfare of their
minor daughters needs to be protected. No one should be
able to circumvent state laws by performing an abortion
in another state on a minor daughter without parental
consent.\56\
---------------------------------------------------------------------------
\56\Child Interstate Abortion Notification Act: Hearing Before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th
Cong. 6-7 (2005) (statement of Marcia Carroll).
The physician who performed an abortion on Marcia Carroll's
daughter, Dr. Vikram Kaji, had a long history of sexually
abusing his patients. Marcia Carroll should have been given an
opportunity to learn about the history of her child's doctor.
Apparently the people who coerced her daughter into having the
abortion did not care who performed an abortion on her. Dr.
Kaji was professionally disciplined by the State of New Jersey
on November 1, 1993, and given a 12-month suspension for
sexually abusing three patients and indiscriminately
prescribing controlled dangerous substances.\57\ He was
disciplined for having sex with one patient in his office, and
for performing ``improper'' rectal and breast exams on two
other patients.\58\ According to a consent order, Dr. Kaji knew
the woman he had sex with suffered from severe depression, had
been sexually abused as a child, and had once been hospitalized
for psychiatric problems.\59\ He was also disciplined by the
Federal Drug Enforcement Agency on February 22, 1994, and made
to surrender his controlled substance license.\60\ He was also
disciplined by the State of Pennsylvania on December 23, 1994,
and his license was suspended for 36 months.\61\
---------------------------------------------------------------------------
\57\See Sidney Wolfe, M.D., Mary Gabay, Phyllis McCarthy, Alana
Bame, and Benita Marcus Adler, ``Questionable Doctors: Disciplined by
States or the Federal Government'' (State Listing for New Jersey; A
Public Citizen Health Research Group Report) (March 1996) at 68.
\58\See American Political Network, ``State Reports Pennsylvania:
PA Suspends Abortion Provider's License,'' (March 23, 1995) at 6.
\59\See Kathy Boccella, ``Abortion Doctor Banned One Year,'' The
Philadelphia Inquirer (October 29, 1993) at B1 (``A woman who had been
a patient of Kaji's since 1976 said that `numerous times (he) made
sexual advances toward her and fondled her' in his office between 1980
and 1988, the consent order read . . . Kaji knew the woman suffered
from severe depression, had been sexually abused as a child and had
once been hospitalized for psychiatric problems, the order read.'').
\60\See id. at 68.
\61\See id. at 68.
---------------------------------------------------------------------------
When Marcia Carroll was asked why she came to testify on
behalf of CIANA, she said, ``[my daughter] does suffer. She has
gone to counseling for this. I just know that she cries and she
wished she could redo everything, relive that day over. It's
just sad that it had to happen this way and this is what she
had to go through. But she did want me to come here today and
speak on her behalf. She said, `Mom, just one phone call is all
it would have taken to stop this from happening . . .' So she
asked me to come here for her sake and for other girls' safety
to speak and let you know what was happening.'' That is
precisely what CIANA affirms: the right of parents to be given
the chance to help their children through difficult times. The
parents of this Nation want to be given the chance to make sure
their children's doctors are not potential sexual abusers and
controlled substance pushers, and CIANA would give them that
chance.
Eileen Roberts also testified that her 13-year-old daughter
was encouraged by a boyfriend, with the assistance of his adult
friend, to obtain a secret abortion.\62\ The adult friend drove
Ms. Roberts' daughter to an abortion clinic 45 miles from her
home and paid for her daughter to receive the abortion.\63\
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.\64\
---------------------------------------------------------------------------
\62\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).
\63\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.
\64\See id.
---------------------------------------------------------------------------
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.\65\ The hospital
called Ms. Roberts and told her that they could not do
reparative surgery without a signed consent form.\66\ 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.\67\ Ms. Roberts and her
family were responsible for over $27,000 in medical costs, all
of which resulted from this one secret abortion.\68\
---------------------------------------------------------------------------
\65\See id.
\66\See id.
\67\See id.
\68\See id.
---------------------------------------------------------------------------
Other examples that illustrate the need for CIANA include
the following. As reported in LifeNews (which refers to a
mother and daughter as ``Anna'' and ``Jane,'' respectively):
Anna's daughter, who the Anchor has identified as
``Jane'' was like many teens. In the winter of 2008,
she started hanging out with someone her parents didn't
approve of. Anna and her husband tried to steer Jane
away from the young man, but he had become part of her
group of friends. Months later, Anna took Jane for a
drive into the Mat-Su Valley in an effort to reach her
increasingly distant daughter. Anna could tell
something was weighing on Jane's mind. Finally, at
lunch, Jane admitted, ``There's something I need to
tell you.'' Jane wrote a message on a napkin and slid
it across the table. ``I'm pregnant,'' it said . . .
``I'm going to have this baby,'' said the resolute
teen. ``Well, good!'' Anna responded happily. ``She had
our love and support,'' Anna said. Anna recalled that
over the ensuing weeks, Jane was excited. She returned
from an ultrasound appointment with images of her
unborn daughter--one for every member of the family,
each addressed to the new grandparents and aunts and
uncles. Anna's read, ``Hi, Grandma!'' And the family
went shopping for maternity clothes and baby gifts. But
not everyone welcomed the new baby. Jane told Anna that
the boyfriend's father had offered her $5,000 to abort.
But Jane was adamant to give birth to the baby. When
the offer rose to $10,000, Anna and her husband were
again concerned for their impressionable daughter and
reminded her, ``We're here to support you. We're here
to help you,'' Anna said. But soon, the boyfriend had
convinced Jane to move out and in with him. Then came
the boyfriend's ``speech.'' It began with, ``Don't tell
your family,'' explained Anna, who with Jane, later
found the boyfriend's highly crafted, typewritten
draft. ``Here is the need for parental notification,''
Anna stressed. ``Manipulative boyfriend. `Don't
tell.''' ``Isn't that what every abuser does to his
victim--gets them into a `Don't tell' situation?'''
Anna observed . . . ``I finally said, `OK [to the
abortion],''' Jane later explained to her mother. ``I
didn't say, `Yes.''' The boyfriend flew Jane to
Seattle, where Alaska abortion clinics often refer
late-term pregnant mothers. As with Alaska, Washington
does not require abortion practitioners to notify a
minor girl's parent before performing an abortion on
her. The day of the secret abortion, Jane was 17 years
old. Her unborn baby daughter was heading into her
sixth month. And because of the abortionist's silence,
Anna believes her own rights as a mother were
sacrificed that day, too.\69\
---------------------------------------------------------------------------
\69\Steven Ertelt, ``Alaska Mother Mourns Her Daughter's Secret
Abortion,'' LifeNews.com (August 6, 2010), available at http://
www.lifenews.com/2010/08/06/state-5320/.
---------------------------------------------------------------------------
Also, as reported by LifeNews:
Hagerstown, MD--When the Senate approved a bill last
week prohibiting taking a teenager to another state for
an abortion without her parents' knowledge or consent,
abortion advocates claimed the practice rarely occurs.
However, the director of a Maryland abortion business
says it routinely gets calls from teens wanting to
avoid parental involvement laws. Teenagers in
Pennsylvania's York County are apparently heading to
the Hagerstown Reproductive Health Services abortion
business in neighboring Maryland. They appear to be
wanting to avoid a Pennsylvania state law that requires
parental consent for a minor girl to have an abortion
and requires all women to wait 24 hours to have an
abortion after getting information on fetal development
and abortion's medical risks and alternatives.
The HRHS abortion facility sits just 8-10 miles away
from the Pennsylvania-Maryland border and it regularly
advertises in York County's Yellow Pages.
``It's clear to us that we receive calls from young
women in Pennsylvania who already called a clinic in
Pennsylvania, and they want to circumvent the state
laws,'' the HRHS abortion center administrator told the
York Daily Record . . .
Sheryl Wolf, spokeswoman for Hillcrest Clinic,
another Maryland abortion business, said 70 young women
came there from Pennsylvania . . . Missouri teens
frequently are taken to the Hope Clinic abortion
facility in Granite City, Illinois, which neighbors St.
Louis, Missouri. Though Missouri requires parental
involvement before an abortion, Illinois does not. Last
year, Shawn Reagan told Missouri state lawmakers about
her problems with the Illinois abortion center.
Reagan said she wept as she talked with staff at Hope
Clinic who refused to let her talk to her 14-year-old
daughter who was inside the facility preparing for an
abortion. She was eventually arrested trying to find
her daughter in the abortion facility. The girl was
reportedly taken to Hope Clinic by the mother of the
man who allegedly impregnated the 14-year-old. The
woman, posing as the girl's grandmother, had the girl
called off from school. When the girl left the abortion
facility after having an abortion, employees told her,
``No one will ever know you were here, we'll bury your
records.''\70\
---------------------------------------------------------------------------
\70\Steven Ertelt, ``Abortion Center Director Admits Out-of-State
Teens Go There to Avoid Parents,'' LifeNews.com (July 30, 2006),
available at http://www.lifenews.com/2006/07/30/nat-2461/.
As reported in American Medical News, about ``6% of the
[Hope] clinic's patients are teens. Of those, 40% are from
Missouri, compared with 50% from Illinois.''\71\ CIANA would
require Hope Clinic to notify a parent of any minor girl who
comes from Missouri for an abortion.
---------------------------------------------------------------------------
\71\Amy Lynn Sorrel, ``State High Court Limits Reach of Missouri
Abortion Consent Law,'' American Medical News (June 4, 2007), available
at http://www.ama-assn.org/amednews/2007/06/04/gvsb0604.htm.
---------------------------------------------------------------------------
Congress must act to maintain the integrity of state
parental involvement laws. In October, 2011, the Connecticut
Catholic Public Affairs Conference prepared this report on the
state of abortion in Connecticut, relying on data from the
Connecticut Department of Public Health. Table 3 on page 2 of
the report notes that ``of the 863 abortions performed on
minors from out-of-state between 2002 and 2010, 91% of those
cases came from bordering states with parental consent laws
[361 teens from Rhode Island and 422 from Massachusetts, 53
from New York].''\72\
---------------------------------------------------------------------------
\72\Available at http://www.courant.com/media/acrobat/2011-10/
65523671.pdf.
---------------------------------------------------------------------------
Further, in 2005, the State of Missouri enacted a law
creating a civil cause of action against any person who
violates the statutory prohibition that ``[n]o person shall
intentionally cause, aid, or assist a minor to obtain an
abortion'' without the consent (or court order) required by
Missouri law.\73\ In 2007, the Missouri Supreme Court
interpreted this statutory language so that it would not apply
to out-of-state abortionists. The court held that the statute
``applies to in-state conduct and not to wholly out-of-state
conduct.''\74\ The court said that ``it is beyond Missouri's
authority to regulate conduct that occurs wholly outside of
Missouri, and section 188.250 cannot constitutionally be read
to apply to such wholly out-of-state conduct. Missouri simply
does not have the authority to make lawful out-of-state conduct
actionable here, for its laws do not have extraterritorial
effect.''\75\ This is all the more reason why Congress needs to
exercise its authority and enact CIANA. Congress has the
constitutional authority to pass CIANA under the Commerce
Clause of the Constitution, which expressly authorizes Congress
to regulate interstate activity.
---------------------------------------------------------------------------
\73\Vernon's Annotated Missouri Statutes 188.250.
\74\Planned Parenthood of Kansas v. Nixon, 220 S.W.3d. 722, 743
(Mo. 2007).
\75\Planned Parenthood of Kansas v. Nixon, 220 S.W.3d. 722, 742
(Mo. 2007).
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STATE LAW AND CIANA'S PROTECTION OF STATE LAW
There are currently over 43 states with parental
involvement statutes on the books.\76\ Of these statutes, the
large majority are in effect today.\77\ Despite widespread
support for parental involvement laws and clear public policy
considerations justifying such laws, there exists substantial
evidence, outlined above, that they are frequently circumvented
by adults who transport minors to abortion providers in states
that do not have parental notification or consent laws. One
purpose of CIANA is to curb the interstate circumvention of
these laws, thereby protecting the rights of parents and the
interests of vulnerable minors.
---------------------------------------------------------------------------
\76\See Ala. Code Sec. Sec. 26-21-1 to -8 (2003); Alaska Stat.
Sec. Sec. 18.16.010-030 (Michie 2003); Ariz. Rev. Stat. Sec. 36-2152
(2004); Ark. Code Ann. Sec. Sec. 20-16-801 to -808 (Michie 2003); Cal.
Health & Safety Code Sec. 123450 (West 2004); Colo. Rev. Stat. Ann.
Sec. Sec. 12-37.5-101 to -108 (West 2004); Conn. Gen. Stat. Ann.
Sec. 19a-601 (West 2003); Del. Code Ann. tit. 24, Sec. Sec. 1780-1789B
(2003); Fla. Stat. Ann. ch. 390.01115 (Harrison 2004); Ga. Code Ann.
Sec. Sec. 15-11-110 to -118 (Harrison 2003); Idaho Code Sec. 18-609A
(2003); 750 Ill. Comp. Stat. Ann. 70/1-99 (West 2004); Ind. Code Ann.
Sec. Sec. 16-18-2-267, 16-34-2-4 (West 2004); Iowa Code Ann.
Sec. Sec. 135L.1-.8 (West 2003); Kan. Stat. Ann. Sec. 65-6705 (2003);
Ky. Rev. Stat. Ann. Sec. 311.732 (Michie 2003); La. Rev. Stat. Ann.
Sec. 40:1299.35.5 (West 2004); Me. Rev. Stat. Ann. tit. 22, Sec. 1597-A
(West 2003); Md. Code Ann., Health-Gen. I Sec. 20-103 (2004); Mass.
Gen. Laws Ann. ch. 112, Sec. 12S (West 2004); Mich. Comp. Laws Ann.
Sec. Sec. 722.901-.908 (West 2004); Minn. Stat. Ann. Sec. 144.343 (West
2004); Miss. Code Ann. Sec. Sec. 41-41-51 to -63 (2003); Mo. Ann. Stat.
Sec. Sec. 188.015, 188.028 (West 2004); Mont. Code Ann. Sec. Sec. 50-
20-201 to -215 (2003); Neb. Rev. Stat. Sec. Sec. 71-6901 to--6909
(2003); Nev. Rev. Stat. Sec. Sec. 442.255-.257 (2003); N.H. Rev. Stat.
Ann. Sec. Sec. 132:24-28 (2003); N.J. Stat. Ann. Sec. Sec. 9:17A-1 to -
1.12 (West 2004); N.M. Stat. Ann. Sec. Sec. 30-5-1 to -3 (Michie 2003);
N.C. Gen. Stat. Sec. Sec. 90-21.6 to .10 (2003); N.D. Cent. Code
Sec. Sec. 14-02.1-03.1 (2003); Ohio Rev. Code Ann. Sec. Sec. 2919.12,
2919.121-.122 (West 2004); 18 Pa. Cons. Stat. Ann. Sec. 3206 (West
2004); R.I. Gen. Laws Sec. 23-4.7-6 (2003); S.C. Code Ann.
Sec. Sec. 44-41-30 to -37 (Law. Co-op. 2003); S.D. Codified Laws
Sec. 34-23A-7 (Michie 2004); Tenn. Code Ann. Sec. 37-10-301 to -304
(2004); Tex. Fam. Code Ann. Sec. Sec. 33.001-.004 (Vernon 2004); Utah
Code Ann. Sec. 76-7-304 (2003); Va. Code Ann. Sec. 16.1-241 (Michie
2004); W. Va. Code Sec. Sec. 16-2F-1 to -8 (2004); Wis. Stat. Ann.
Sec. 48.375 (West 2003); Wyo. Stat. Ann. Sec. 35-6-118 (Michie 2003).
\77\See Planned Parenthood v. Heed, 390 F.3d 53 (1st Cir. 2004)
(unconstitutional for lack of health exception); Planned Parenthood of
Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004) (concluding that
the Idaho statute's definition of Amedical emergency@ is
unconstitutionally narrow and that, without an adequate medical
exception, the parental consent statute is invalid); Glick v. McKay,
937 F.2d 434 (9th Cir. 1991) (judicial bypass procedure rendered
statute unconstitutional); Zbaraz v. Ryan, No. 84 CV771, 1996 WL
33293423 (N.D. Ill. Feb. 8, 1996) (the Illinois Supreme Ct. refused to
issue rules implementing the Illinois statute); Planned Parenthood of
Alaska, Inc. v. State, No. 3AN-97-6014 CI (Alaska Super. Ct. Oct. 13,
2003) (decision on remand from State v. Planned Parenthood of Alaska,
35 P.3d 30 (Alaska 2001)) (parental consent law with judicial waiver
violates state constitution); American Acad. of Pediatrics v. Lungren,
940 P.2d 797, 800 (Cal. 1997) (parental consent statute violated state
constitutional right to privacy); N. Fla. Women's Health and Counseling
Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003) (state supreme
court held that law violated state right to privacy; however, the state
constitution was amended in November 2004 to allow parental
notification); Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb.
11, 1999) available at http://www.mtbizlaw.com/1stjd99/
WICKLUND_2_11.htm (parental notification law violated state
constitution); Planned Parenthood of Central New Jersey v. Farmer, 762
A.2d 620 (N.J. 2000) (parental notification law with judicial waiver
violates state constitution); N.M. A.G. Op. No. 90-19 (Oct. 3 1990)
(State attorney general holds law unenforceable due to lack of judicial
bypass procedure). In addition, Ohio's parental notification law is in
effect because a subsequently enacted parental consent statute was
enjoined. See Cincinnati Women's Services v. Voinovich, No. C-1-98-289
(S.D. Ohio Apr. 29, 1998) (preliminary injunction preventing
enforcement of the law).
---------------------------------------------------------------------------
Parental involvement laws have been in force for decades,
and there is no case where it has been established that these
laws led to parental abuse or to self-inflicted injury.\78\
Similarly, there is no evidence that these laws have led to an
increase in illegal abortions.\79\
---------------------------------------------------------------------------
\78\A 1989 memo prepared by the Minnesota Attorney General
regarding Minnesota's experience with its parental involvement law
states that ``after some 5 years of the statute's operation, the
evidence does not disclose a single instance of abuse or forceful
obstruction of abortion for any Minnesota minor.'' Testimony before the
Texas House of Representatives on Massachusetts' experience with its
parental consent law revealed a similar absence of unintended, but
harmful, consequences. Ms. Jamie Sabino, chair of the Massachusetts
Judicial Consent for Minors Lawyer Referral Panel, could identify no
case of a Massachusetts' minor being abused or abandoned as a result of
the law. See Hearing on Tex. H.B. 1073 Before the House State Affairs
Comm., 76th Leg., R.S. 21 (Apr. 19, 1999) (statement by Jamie Sabino).
\79\See Hearing on Tex. H.B. 1073 Before the House State Affairs
Comm., 76th Leg., R.S. 21 (Apr. 19, 1999) (statement by Jamie Sabino,
testifying that there had been no increase in the number of illegal
abortions in Massachusetts since the enactment of the statute in 1981).
---------------------------------------------------------------------------
Despite these critical benefits of better-informed
selection of abortion providers, improved medical histories,
appropriate post-operative care, and the affirmation of
parental rights, opponents of CIANA argue that mandatory
parental involvement results in girls' delaying their decisions
to obtain abortions, thus increasing the risks attendant to the
procedure.\80\ There is no evidence, however, that parental
involvement laws 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.''\81\
---------------------------------------------------------------------------
\80\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).
\81\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 Am. J. Pub. Health 1367, 1372 (August 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.'').
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OTHER PARENTAL NOTICE STATUTES
CIANA will strengthen the effectiveness of state laws
designed to protect children from the health and safety risks
associated with abortion.\82\ Across the country, officials
must obtain parental consent before performing even routine
medical services such as providing aspirin and before including
children in certain activities such as field trips and contact
sports.\83\ Regarding body piercing, states require written
parental consent,\84\ a parent to be present when a minor is
pierced,\85\ and written permission or a parent's physical
presence.\86\ The large majority of states have laws
prohibiting adolescents from getting tattoos without parental
consent, and a majority of states have laws against body
piercing without parental consent and laws that prohibit both
without parental consent.\87\ Also, in Maryland, for example,
as the Washington Post reports, eleven school systems require a
parent's note before sunscreen can be applied to a minor
student.\88\ Notwithstanding the extensive body of State law
requiring parental consent before minor children can engage in
a range of less consequential activity, people other than
parents can secretly take children across state lines without
the consent of their parents for abortions.
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\82\In 2001, 853,485 legal induced abortions were reported to CDC.
See Lilo T. Strauss, M.A., Joy Herndon, M.S., Jeani Chang, M.P.H.,
Wilda Y. Parker Sonya, V. Bowens, M.S., Suzanne B. Zane, D.V.M.,
Cynthia J. Berg, M.D., ``Abortion Surveillance--United States, 2001,''
Centers for Disease Control, Division of Reproductive Health, National
Center for Chronic Disease Prevention and Health Promotion (November
26, 2004).
\83\See, e.g., William D. Valente, 2 Education Law: Public and
Private Sec. 19.23 at 212 (acknowledging ``[t]he common school practice
of obtaining written parental consents or waivers . . . for designated
[school field trip] activities''); Cal. Educ Code Ann Sec. 49302
(requiring parental consent before pupils can be transported).
\84\See, e.g., Ala. Code Sec. 22-17A2; Alaska Stat. Sec. 08.13.217;
Del. Code Ann. tit. 11, Sec. 1114; 720 Ill. Comp. Stat. Ann. 5/12-10.1;
Kan. Stat. Ann. Sec. 65-1953; Me. Rev. Stat. Ann. tit. 32, Sec. 4323;
Mich. Comp. Laws Ann. Sec. 333.13102; Mo. Ann. Stat. Sec. 324.520; N.C.
Gen. Stat. Sec. 14-400; Okla. Stat. Ann. tit. 21, Sec. 842.1; Tenn.
Code Ann. Sec. 62-38-302; Tex. Health & Safety Code Ann. Sec. 146.012.
\85\See, e.g., Ariz. Rev. Stat. Ann. Sec. 13-3721; La. Rev. Stat.
Ann. Sec. 14:93.2; R.I. Gen. Laws Sec. 23-1-39; Utah Code Ann. Sec. 76-
10-2201; Va. Code Ann. Sec. 18.2-371.3.
\86\See, e.g., Cal. Penal Code Sec. 652; Fla. Stat. Ann.
Sec. 381.0075(7); Ind. Code Ann. Sec. 35-42-2-7; S.C. Code Ann.
Sec. 44-32-120.
\87\Ala. Code 22-17A-2 (prohibits anyone from performing a tattoo,
brand or body piercing on a minor unless prior written informed consent
is obtained from the minor's parent or legal guardian); Ariz. Rev.
Stat. Ann. Sec. 13-3721 (establishes that it is unlawful to either
tattoo or body pierce anyone under age 18 without the physical presence
of the parent or legal guardian; violators are guilty of a Class 6
felony; allows anyone to avoid prosecution if he or she requested the
ID and relied on the accuracy of the information contained in the ID);
Ark. Stat. Ann. Sec. 5-27-228 (prohibits anyone from tattooing, body
piercing or branding a minor without the written consent of one of the
minor's parents, a guardian or a custodian; violators are guilty of a
misdemeanor and, upon conviction, will be fined between $20 and $200);
Cal. Penal Code Sec. 652 (establishes that it is unlawful to tattoo or
offer to tattoo anyone under age 18; violators are guilty of a
misdemeanor; prohibits anyone from performing or offering to perform
body piercing upon anyone under age 18 unless the piercing is performed
in the presence of a parent or guardian or as directed by and notarized
by the minor's parent or guardian; does not apply to emancipated minors
and does not include pierces of the ear); Col. Rev. Stat. Ann. Sec. 25-
4-2103 (prohibits anyone from performing a body art procedure on a
minor unless the artist has received express consent from the minor's
parent or guardian; failure to obtain permission before performing the
procedures on a minor shall constitute a petty offense punishable by a
fine of $250); Conn. Gen. Stat. Sec. 19a-92g (establishes that it is
illegal to tattoo an unemancipated minor under age 18 without the
written consent of the minor's parent or guardian; requires written
consent of the minor's parent in order to perform body piercing on an
unemancipated minor under age 18); Del. Code Ann. Title 11, Ch 5
Sec. 1114(a) (it is illegal for a person to either knowingly or
negligently tattoo or body pierce a minor without the prior written
consent of the parent or legal guardian who must be over age 18); Fla.
Stat. Sec. 381.0075 (requires written, notarized consent of a minor's
parent or legal guardian in order to tattoo a minor; prohibits body
piercing of a minor without the written, notarized consent of the
parent or legal guardian or if he or she is accompanied by a parent or
legal guardian); Ga. Code Sec. 16-5-71.1 (prohibits the tattooing of
anyone under age 18 by anyone other than a licensed osteopath or
technician acting under the direct supervision of a licensed physician
or osteopath; violators are guilty of a misdemeanor; prohibits anyone
from body piercing anyone under age 18 without prior written consent of
the custodial parent or guardian; violators are guilty of a
misdemeanor); Idaho Chapter No. 127 2004 (effective July 1, 2004)
(prohibits the tattooing, branding or body piercing of minors under the
age of 14; prohibits the tattooing, branding or body piercing on anyone
between the ages of 14 and 18 without the written informed consent of
the minor's parent or legal guardian; written informed consent must be
executed in the presence of the person performing the act or an
employee or agent of that person; violators are guilty of a misdemeanor
and will be fined up to $500 and subsequent violations within 1 year
will be fined between $500 and $1,000; piercing of the ear lobes and
piercing for medical purposes are exempted from this legislation) Ill.
Compiled Stat. 5/12-10.1 (it is a Class C misdemeanor for anyone, other
than a person licensed to practice medicine in all branches, to tattoo
or offer to tattoo a person under age 21; establishes that anyone who
pierces the body of a minor under age 18 without written consent of the
parent or legal guardian commits a Class C misdemeanor; does not apply
to emancipated or married minors; Ind. Code Ann. Sec. 35-42-2-7
(requires a minor's parent or legal guardian to be present on order to
either tattoo or perform body piercing on a minor under age 18;
requires the parent or guardian to also provide written permission for
the minor to receive the tattoo or body piercing); Iowa Code
Sec. 135.37 (prohibits anyone from tattooing an unmarried minor under
age 18; upon conviction, violators are guilty of a serious
misdemeanor); Ky. Rev. Stat. Sec. 211.760 (prohibits anyone from
tattooing or body piercing minors without the written, notarized
consent of a parent or guardian); La. Rev. Stat. Ann. Sec. 14:93.2 (it
is unlawful for anyone to tattoo or body pierce a minor under age 18
without the consent of the minor's accompanying parent or legal
custodian; upon conviction, violators shall be fined between $100 and
$500 or imprisoned between 30 and 100 days, or both); Me. Rev. Stat.
Ann. Title 32, Ch. 64 Sec. 4323 (establishes that it is illegal to
tattoo anyone under age 18; requires prior written consent of a minor's
parent or legal guardian to perform body piercing on anyone under age
18); Mich. Comp. Laws Ann. Sec. 333.13102 (prohibits anyone from either
tattooing or performing body piercing on a minor without prior written,
informed consent of the minor's parent or legal guardian; requires the
parent or legal guardian to execute the consent in the presence of
either the person performing the body piercing or tattooing on the
minor or in the presence of an employee or agent of the individual;
does not include emancipated minors); Minn. Stat. Sec. 609.2246 (it is
unlawful for anyone under age 18 to receive a tattoo without written
parental consent); Miss. Laws Sec. 73-61-3 (prohibits anyone from
tattooing or body piercing a minor under age 18; violators are guilty
of a misdemeanor and will be fined a maximum of $500); Mo. Rev. Stat.
Sec. 324.520 (prohibits anyone from knowingly tattooing or body
piercing a minor without prior written, informed consent of the minor's
parent or legal guardian; requires the parent or legal guardian to
execute the written consent in the presence of either the person
performing the tattooing or body piercing or an employee or agent of
that person; violators are guilty of a misdemeanor and will be fined a
maximum of $500; subsequent violations within 1 year of the initial
violation will be subject to a fine of between $500 and $1,000); Mont.
Code Ann. Sec. 45-5-623 (prohibits anyone from knowingly tattooing a
child under the age of majority without the explicit in-person consent
of the child's parent or guardian; upon conviction, violators will be
either fined a maximum of $500, imprisoned for up to 6 months, or both;
those convicted of a second offense will either be fined a maximum of
$1,000, imprisoned for up to 6 months, or both); N.C. Gen. Stat.
Sec. 14-400 (prohibits anyone from tattooing a minor under age 18;
violators are guilty of a Class 2 misdemeanor; prohibits anyone from
piercing any part of a minor under age 18 other than the ears without
the prior consent of the custodial parent; violators are guilty of a
Class 2 misdemeanor); Ohio Rev. Code Ann. Sec. 3730.06 (it is illegal
to tattoo, body pierce or pierce the ears of anyone under age 18
without the consent of the minor's parent, guardian or custodian;
requires the consenting individual to appear in person at the business
at the time the procedure is performed and sign a document that
provides informed consent); Okla. Stat. Title 21 Sec. Sec. 841 and
842.1 (prohibits anyone other than a licensed practitioner of the
healing arts in the course of their practice from tattooing or offering
to tattoo anyone; it is unlawful for anyone to perform, or offer to
perform, body piercing on a child under age 18 unless the parent or
legal guardian gives written consent for and is present during the
procedure; penalties for violations include imprisonment for up to 90
days and a fine of up to $500, or both); Pa. Cons. Stat. Title 18
Sec. 6311 (it is unlawful to provide tattoo services to anyone under
age 18 without the consent of the parent or guardian; violators are
guilty of a misdemeanor of the third degree and, upon conviction, will
be sentenced to either pay a maximum fine of $100 or be imprisoned a
maximum of 3 years, or both); R.I. General Laws Sec. Sec. 11-9-15; 23-
1-39 (prohibits tattooing or body piercing a minor who is unaccompanied
by his or her consenting parent or guardian; violators are guilty of a
misdemeanor and, upon conviction, will either be imprisoned a maximum
of 1 year or fined a maximum of $300); S.D. Codified Laws Ann. Sec. 26-
10-19 (requires anyone who is tattooing a minor under age 18 to obtain
a signed consent form from the minor's parents authorizing a tattoo;
violators are guilty of a Class 2 misdemeanor); Tenn. Code Ann.
Sec. Sec. 62-38-207; 62-38-305 and 306 (establishes that a minor age 16
or older may be tattooed with the written consent of the parent or
legal guardian to cover up an existing tattoo and requires the parent
or legal guardian to be present during the procedure; it is a Class C
misdemeanor for anyone to tattoo a person under age 18; allows a minor
age 18 or younger to undergo body piercing with the written consent of
the parent, legal guardian or legal custodian and requires them to be
present during the procedure; they must sign a document that explains
the procedure and methods for proper care, present proof of age and
attest in writing that they are the minor's parent, legal guardian or
legal custodian; violators will be charged with a Class C misdemeanor
and will be imprisoned for up to 30 days or pay a fine of up to $50);
Texas Health and Safety Code Ann. Sec. Sec. 146.012; 146.0125
(prohibits anyone from performing a tattoo on anyone under age 18
without the consent of a parent or guardian who believes it is in the
best interest of the minor to cover an obscene of offensive tattoo;
required consent may be the physical presence of the individual's
parent or guardian or the provision of evidence that he or she is the
parent or guardian of the person who is getting the tattoo; prohibits
anyone from performing body piercing on an individual under age 18
without the consent of the individual's parent, managing conservator or
guardian; consent must specify the part of the body to be pierced.
Required consent is the physical presence of the individual's parent or
guardian and the provision of evidence stating their parental or
guardian status); Utah Code Ann. Sec. 76-10-2201 (prohibits anyone from
performing or offering to perform a tattoo or body piercing upon a
minor without receiving the consent of the minor's parent or legal
guardian; establishes that a person is not guilty of a violation if he
or she (a) had no actual knowledge of the minor's age and (b) reviewed,
recorded and maintained a personal identification number for the minor
prior to performing the body piercing or tattoo; violators are guilty
of a Class C misdemeanor and the owner or operator of the establishment
where the act takes place is subject to a civil penalty of $750 for
each violation); Vt. Stat. Ann. Title 26 Sec. 4102 (prohibits anyone
from tattooing a minor without the written consent of his or her parent
or guardian); Va. Code Sec. 18.2-371.3 (prohibits anyone from tattooing
or performing body piercing on a person under age 18, knowing or having
reason to believe that the person is under 18 except (a) in the
presence of the person's parent or guardian or (b) when done by or
under the supervision of a medical doctor, registered nurse, or other
medical services personnel in the performance of their duties;
violators are guilty of a Class 2 misdemeanor. A second or subsequent
violation shall be punished as a Class 1 misdemeanor; excludes ear
piercing as a form of body piercing); Wash. Rev. Code Sec. 26.28.085
(applying a tattoo to a minor under age 18 is illegal and violators are
guilty of a misdemeanor; prohibits anyone from stating that he or she
did not know the minor's age as a defense to prosecution, unless he or
she establishes that by a preponderance of evidence he or she made a
reasonable attempt to determine the true age of the minor by requiring
a driver's license or other picture ID card and did nor rely solely on
oral allegations); W. Va. Code Sec. 16-38-3 (requires prior written
consent from a parent or guardian for the tattooing of a minor); Wis.
Stat. Sec. 948.70 (prohibits anyone other than a physician in the
course of his or her professional practice from tattooing or offering
to tattoo a child; violators are subject to a Class D forfeiture); Wyo.
Stat. Sec. 14-3-107 Chapter 47 2004 (Effective July 1, 2004) (prohibits
anyone from tattooing a person under the age of majority, except with
the consent of the person's parent or legal guardian who is present at
the time the procedure is performed; violators are guilty of a
misdemeanor and punishable by imprisonment for a maximum of 6 months, a
fine of a maximum of $750, or both; prohibits performing body art on
anyone who had not reached the age of majority without the consent of
the parent or legal guardian and who is present at the time of the
procedure; violators are guilty of a misdemeanor and punishable by
imprisonment for a maximum of 6 months, a fine of a maximum of $750, or
both; body art is defined as the practice of body piercing, branding
scarification, sculpting or tattooing).
\88\See Daniel de Vise, ``Bill Would Legislate Maryland Students'
Use of Sunscreen,'' The Washington Post (March 29, 2005).
---------------------------------------------------------------------------
STATE JUDICIAL BYPASS PROCEDURES
In Bellotti v. Baird,\89\ a plurality of the United States
Supreme Court set forth the basic test by which judicial bypass
proceedings pursuant to a parental consent statute, if judicial
bypass provisions are enacted at all, must be reviewed. Bypass
procedures must allow the minor to show that she possesses
maturity and information to make the abortion decision, in
consultation with her physician, without regard to her parents'
wishes; allow the minor to show that, even if she cannot make
the decision by herself, the ``desired abortion would be in her
best interests''\90\ ; be confidential; and be conducted ``with
expedition to allow the minor an effective opportunity to
obtain the abortion.''\91\
---------------------------------------------------------------------------
\89\443 U.S. 622 (1979) (Bellotti II).
\90\Id. at 644.
\91\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 physical, sexual, or emotional abuse by
parents or guardians, and abortion alternatives such as marriage,
adoption, and single motherhood.
---------------------------------------------------------------------------
Critics of CIANA 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 state of South
Carolina would hear a judicial bypass petition, and one of
those judges, according to Ms. Lominick, would hear petitions
only from girls residing in his county.\92\
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\92\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).
---------------------------------------------------------------------------
Such examples ignore the fact that CIANA provides
assistance only 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.''\93\
---------------------------------------------------------------------------
\93\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 (``Bellotti II'').\94\ 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.'''\95\ 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,''\96\ and many judges were avoided
``for reasons of hostility.''\97\ 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.\98\
---------------------------------------------------------------------------
\94\868 F.2d 459 (1st Cir. 1989).
\95\Id. at 469 (quoting Hodgson v. Minnesota, 648 F. Supp. 756, 777
(D. Minn. 1986)).
\96\Id. at 463.
\97\Id. at 461 n.6.
\98\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 v. Lawall,\99\ 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.''\100\ 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.''\101\
---------------------------------------------------------------------------
\99\Planned Parenthood v. Lawall, 180 F.3d 1022 (9th Cir. 1999).
\100\Id. at 1027.
\101\Id. at 1030.
---------------------------------------------------------------------------
The Fifth Circuit employed essentially identical reasoning
in striking down a Louisiana judicial bypass procedure having
indefinite time limits.\102\ 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.''\103\
---------------------------------------------------------------------------
\102\See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir.
1997).
\103\Id. at 1110-11.
---------------------------------------------------------------------------
As these cases illustrate, judicial bypass procedures must
be readily accessible and efficient in order to pass
constitutional muster. CIANA will assist in the enforcement of
only those State parental involvement laws that meet the
relevant constitutional criteria.
In any case, the minority's own witness at a hearing on
H.R. 1755, the ``Child Custody Protection Act,'' which
contained the same provision in CIANA regarding judicial bypass
laws, admitted that ``I am personally not aware of cases where
[a judicial bypass procedure] hasn't worked.''\104\
Furthermore, testimony received by the Constitution
Subcommittee indicates that, where judicial bypass procedures
are in place, they are not needed in the overwhelming number of
cases because a parent's involvement is obtained. In 2002, 852
girls received abortions in Alabama with a parent's approval
and 12 with a judge's approval, according to state health
department records. Idaho similarly reported less than 5
percent of minors using judicial bypass to avoid that state's
parental consent law (64 minors with parental consent, 3 with
judicial bypass) in 2002. South Dakota reported 14 of 76 minors
obtained judicial bypasses, rather than parental consent. In
Texas where 3,654 minors obtained abortions, the Texas
Department of Health paid for assistance in 284 judicial bypass
proceedings. In Wisconsin, less than 10% of the minors
obtaining abortions did so with the use of an order obtained
through judicial bypass (727 with parental involvement, 63 with
judicial bypass).\105\
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\104\Child Custody Protection Act: Hearings on H.R. 1755 Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th
Cong., 41 (2004) (testimony of Rev. Lois M. Powell).
\105\Id. at 37 (statement of Teresa Collett).
---------------------------------------------------------------------------
And far from being too complicated or too intrusive, the
judicial bypass procedure has been described as ``remarkably
simple'' by the Nebraska Supreme Court in Orr v. Knowles.\106\
In fact, the average judicial bypass hearing lasts only 12
minutes, and ``more than 92 percent of the hearings [were] less
than or equal to 20 minutes.''\107\ The young girl is not
subjected to an adversarial process. She is not ``on trial.'' A
young girl must merely present evidence only about her maturity
level, not intimate details of her personal life, to the court.
Then the judge will make his decision.
---------------------------------------------------------------------------
\106\See Orr v. Knowles, 337 N.W.2d 699, 706 (Neb. 1983) (``This
statute does not provide that the state or anyone else will contest the
minor's claim that she is mature enough to make the abortion decision
herself. Rather, she will present evidence, and the judge will then
make the decision as to her maturity. Since there is no adversarial
aspect to these proceedings, we find that no petitioning minor,
indigent or otherwise, is entitled to free court-appointed counsel as a
matter of right in proceedings under Sec. 28-347(2).''). Accord Joseph
W. Moylan, ``No Law Can Give Me the Right to Do What Is Wrong,'' in
Life and Learning V: Proceedings of the Fifth University Faculty for
Life Conference at 234, 235 (1995) (explaining Judge Moylan's decision
to resign from a bench in the juvenile court he had occupied for more
than 20 years) (``When the bill, taken from a Minnesota law, did get
passed, it stated that at the hearing the pregnant minor is entitled to
have an attorney appointed for her and even a guardian ad litem. There
is nobody on the other side, unless a judge takes it on himself. Now I
know of no other case that is like that, where it is truly one-sided.
If after that one-sided hearing, the judge finds that the girl is
mature and can give an informed consent, then the judge is required to
authorize the abortion physician to perform the abortion.'').
\107\Id. at 648.
---------------------------------------------------------------------------
Indeed, judicial bypass procedures are overwhelmingly
granted by the courts. Judicial bypasses provide a safe and
effective means of insuring the well-being of young girls
seeking to abort their pregnancies. A survey of Massachusetts
cases found that every minor who sought judicial authorization
to bypass parental consent received it.\108\ Another
Massachusetts study found that only 1 of 477 girls was refused
judicial authorization.\109\ A Minnesota study cited that a
Federal trial court determined that of the 3,573 bypass
petitions filed, six were withdrawn, nine were denied, and
3,558 were granted.\110\ A survey of the Virginia statute
requiring parental notification found that out of 18 requests
for judicial bypass, ``all but one of the requests were granted
eventually.''\111\
---------------------------------------------------------------------------
\108\Robert H. Mnookin, ``Bellotti v. Baird, A Hard Case'' in In
the Interest of Children: Advocacy, Law Reform, and Public Policy 149,
239 (Robert H. Mnookin ed., 1985).
\109\Susanne Yates & Anita J. Pliner, ``Judging Maturity in the
Courts: the Massachusetts Consent Statute,'' 78 Am. J. Pub. Health 646,
647 (1988).
\110\Hodgson v. Minnesota, 648 F.Supp. 756, 765 (D. Minn. 1986).
\111\See Ellen Nakashima, ``Fewer Teens Receiving Abortions in
Virginia: Notification Law to Get Court Test,'' Washington Post (March
3, 1998) at A1 (``In Virginia, since the law took effect, 18 teenagers
have gone to a judge, who determines whether the girl is mature enough
to make her own decision about abortion. All but one of the requests
were granted eventually.'')
---------------------------------------------------------------------------
CIANA IS BASED ON THE PROPOSITION THAT PARENTS SHOULD BE GIVEN A CHANCE
TO PLAY A ROLE IN THE LIVES OF THEIR MINOR CHILDREN
Children's feelings should not trump parental authority.
Parents are not simply placeholders in a child's life. They are
the foundational pillars of civilization. The family unit has
provided the comfort, stability, and safety necessary to
sustain civilization, and it has done so for millennia. Parents
must be given a chance to work with their own children through
difficult situations. There is no guarantee that parents will
be successful in that endeavor, and unfortunately there will,
no doubt, be a few parents who will be indifferent when they
are made aware of their daughter's pregnancy. But that is
surely the rare case, and even in that rare case nothing in
this legislation will bar an abortion. What this legislation
affirms is the proposition that parents deserve a chance.
Opponents of CIANA must rest their objections on the notion
that most parents do not deserve that simple chance. But
parents do deserve that chance, and CIANA would give that
chance to parents who have not abused or neglected their child.
Even famously liberal Justice Stevens wrote in his concurring
opinion in H.L. v. Matheson that ``[t]he possibility that some
parents will not react with compassion and understanding upon
being informed of their daughter's predicament or that, even if
they are receptive, they will incorrectly advise her, does not
undercut the legitimacy of the State's attempt to establish a
procedure that will enhance the probability that a pregnant
young woman exercise as wisely as possible her right to make
the abortion decision.''\112\
---------------------------------------------------------------------------
\112\450 U.S. 398, 424 (1981) (Stevens, J., concurring).
---------------------------------------------------------------------------
Nothing in this bill requires a minor who was abused by her
parents to notify an abusive parent before having an abortion.
And all state judicial bypass provisions that are protected by
this bill are both the product of state law and required to
conform to the Supreme Court's own standards for judicial
bypass provisions. Furthermore, all the various additional
exceptions opponents have proposed be added to CIANA are simply
legislative excuses to deny parents that chance. Those who
oppose giving parents a chance claim life is hopelessly
confusing and therefore Congress should not act to protect
parental rights. But a sister or a brother, or a minister, or
some other third party, is not a parent. Sisters and brothers,
and ministers, can of course provide their own counseling if a
minor girl seeks it. But parents are special, and parents
deserve unique protections when it comes to their ability to
protect the health and safety of their children. That much is
clear.
Anyone who is truly interested in the best interests of a
pregnant girl--be they a minister, a sibling, a friend, or
anyone else--will encourage her to inform her parents and give
them the chance of helping her address her situation
appropriately. It is beyond dispute that it is not in a
pregnant girl's best interests to allow anyone to assist her in
circumventing state laws providing for parental involvement or
to allow anyone to give a pregnant girl who has crossed state
lines a secret abortion that could have serious medical
consequences without notifying a parent.
Unfortunately, during consideration of this legislation,
some opponents of this legislation have equated parents with
slave owners.\113\ Parental rights are not those of a slave
owner. They are the rights of caring people who deserve a
chance to work with their children through difficult times and
should be provided a chance to express their love to their
children in their children's moments of greatest need.
---------------------------------------------------------------------------
\113\See, e.g., H.R. Rep. No. 107-397 (2002) at 56 (``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 . . . and say, `We want our slave
back.''') (remarks of Mr. Nadler D-NY).
---------------------------------------------------------------------------
THE FUNDAMENTAL NATURE OF PARENTAL RIGHTS
The United States Supreme Court has described parents'
right to control the care of their children as ``perhaps the
oldest of the fundamental liberty interests recognized by this
Court.''\114\ In addressing the right of parents to direct the
medical care of their children, the Supreme Court has stated:
---------------------------------------------------------------------------
\114\Troxel v. Granville, 530 U.S. 57, 65 (2000) (overturning
Washington visitation statute which unduly interfered with parental
rights).
Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with
broad parental authority over minor children. Our cases
have consistently followed that course; our
constitutional system long ago rejected any notion that
a child is ``the mere creature of the State'' and, on
the contrary, asserted that parents generally ``have
the right, coupled with the high duty, to recognize and
prepare [their children] for additional obligations.''
Surely, this includes a ``high duty'' to recognize
symptoms of illness and to seek and follow medical
advice. The law's concept of the family rests on a
presumption that parents possess what a child lacks in
maturity, experience, and capacity for judgment
required for making life's difficult decisions.\115\
---------------------------------------------------------------------------
\115\Parham v. J.R., 442 U.S. 584, 602 (1979) (emphasis added)
(citations omitted) (rejecting claim that minors had right to
adversarial proceeding prior to commitment by parents for treatment
related to mental health).
The parents of a minor child have a fundamental right to
direct the upbringing and education of that child. The Supreme
Court first recognized the right to ``establish a home and
bring up children'' as a ``privilege[] long recognized at
common law as essential to the orderly pursuit of happiness by
free men'' in the 1923 case of Meyer v. Nebraska in which it
struck down as unconstitutional a Nebraska law forbidding all
schools within its boundaries from teaching pupils in any
language other than English.\116\ Two years later, striking
down an Oregon statute requiring all children, under compulsory
education laws, to attend public schools, the Court affirmed
this principle stating, ``The child is not the mere creature of
the state; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare
him for additional obligations.''\117\
---------------------------------------------------------------------------
\116\262 U.S. 390, 399 (1923).
\117\Pierce v. Society of the Sisters, 268 U.S. 510, 535 (1925).
---------------------------------------------------------------------------
Coupled with this right, however, is the duty of parents to
provide for the care and safety of their children, including
their physical and medical well-being. A parent's duty to
provide medical care to his or her child is a duty arising from
the relationship of parent and child. Indeed, the Court has
described the ``care and nurture'' of a child as being a
``primary function'' of parents.\118\ Ignoring or violating a
parent's legal right to direct the upbringing of their
children, including the right to direct the medical care
received by those children, can result in liability.\119\ In
Meyer, the Court stated, ``Corresponding to the right of
control, it is the natural duty of the parent to give his
children education suitable to their station in life
[.]''\120\Certainly this duty to educate includes instructing
one's children on how to best make decisions concerning their
health.
---------------------------------------------------------------------------
\118\See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
\119\Unauthorized medical examinations of minors have resulted in
liability. See van Emrik v. Chemung County Dep't of Soc. Servs., 911
F.2d 863, 867 (2d Cir. 1990) (parental consent required for x-ray);
Tenebaum v. Williams, 193 F.3d 581, 597-99 (2d Cir. 1999)(parental
consent required for gynecological exam).
\120\Meyer, 262 U.S. at 400.
---------------------------------------------------------------------------
Holding that the State of Georgia's commitment procedures
for minor children did not violate the due process rights of
minors, the Court recognized ``the traditional presumption that
the parents act in the best interests of their child'' and
warned against discarding ``wholesale those pages of human
experience that teach that parents generally do act in the
child's best interests.''\121\ The Court added, ``Surely, this
includes a `high duty' to recognize symptoms of illness and to
seek and follow medical advice.''\122\
---------------------------------------------------------------------------
\121\Parham, 442 U.S. at 602-04. See also Hodgson v. Minnesota, 497
U.S. 417 (1990) (a parent is ``presumed to act in the minor's best
interest and thereby assures that the minor's decision to terminate her
pregnancy is knowing, intelligent, and deliberate'').
\122\Parharm, 442 U.S. at 602.
---------------------------------------------------------------------------
The Supreme Court has consistently recognized that parents
have a legal right to be involved in their minor daughter's
decision to seek medical care, which includes the abortion
procedure. Therefore, the Court has consistently affirmed a
state's right to restrict the circumstances under which a minor
may obtain an abortion in ways in which adult women seeking
abortions may not be restricted. Holding that a state may not
grant to a third party an absolute, and possibly arbitrary,
veto over a minor's decision to have an abortion in Planned
Parenthood v. Danforth, the Court added ``the State has
somewhat broader authority to regulate the activities of
children than of adults.''\123\ Indeed, ``the status of minors
under the law is unique in many respects'' and the ``unique
role in our society of the family, the institution by which `we
inculcate and pass down many of our most cherished values,
moral and cultural,' requires that constitutional principles be
applied with sensitivity and flexibility to the special needs
of parents and children.''\124\
---------------------------------------------------------------------------
\123\428 U.S. 52, 74 (1976).
\124\Bellotti v. Baird, 443 U.S. 622, 633-34 (1979) (Bellotti II).
---------------------------------------------------------------------------
SUPREME COURT PRECEDENT SUPPORTS GIVING PARENTS A CHANCE TO PLAY A ROLE
IN THEIR CHILDREN'S ABORTION DECISIONS
Supreme Court precedents support CIANA. The Supreme Court
has observed that ``[t]he medical, emotional, and psychological
consequences of an abortion are serious and can be
lasting,''\125\ and that ``[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.''\126\ 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.
---------------------------------------------------------------------------
\125\H.L. v. Matheson, 450 U.S. 398, 411 (1981).
\126\Planned Parenthood v. Danforth, 428 U.S. 52, 91 (1976).
---------------------------------------------------------------------------
On an issue as contentious and divisive as abortion, it is
both remarkable and instructive that there is such firm and
long-standing support for laws requiring parental involvement.
Various reasons underlie this broad and consistent support. As
the Supreme Court, including Justices O'Connor, Kennedy, and
Souter, observed in Planned Parenthood v. Casey,\127\ parental
consent and notification laws related to abortions ``are based
on the quite reasonable assumption that minors will benefit
from consultation with their parents and that children will
often not realize that their parents have their best interests
at heart.''
---------------------------------------------------------------------------
\127\505 U.S. 833, 895 (1992).
---------------------------------------------------------------------------
In Planned Parenthood of Central Missouri v. Danforth,\128\
noted liberal Justice Stewart wrote, ``There can be little
doubt that the State 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.''\129\ Three years later, in
Bellotti v. Baird,\130\ a plurality of the Court acknowledged
that parental consultation is critical for minors considering
abortion because minors often lack the experience, perspective,
and judgment to avoid choices that could be detrimental to
them. The Bellotti plurality also observed that parental
consultation is particularly desirable regarding the abortion
decision since, for some, the situation raises profound moral
and religious concerns.\131\
---------------------------------------------------------------------------
\128\428 U.S. 52 (1976).
\129\Planned Parenthood v. Danforth, 428 U.S. 52, 91 (1976)
(Stewart, J., concurring).
\130\443 U.S. 622, 640 (1979) (Bellotti II) (plurality opinion).
\131\Id. at 635.
---------------------------------------------------------------------------
Significantly, the Supreme Court has already concluded that
notice statutes do not give parents any ``veto power''\132\
over the minor's abortion decision. As the Court reiterated in
Akron II, ``notice statutes are not equivalent to consent
statutes because they do not give anyone a veto power over a
minor's abortion decision.''\133\ A one-parent notification law
such as one containing CIANA's abuse and life-endangerment
exception does not require a judicial bypass. As the Fourth
Circuit Court of Appeals recognized in Planned Parenthood of
the Blue Ridge v. Camblos, ``In contrast to its assessment of
parental consent statutes, the [Supreme] Court has consistently
recognized that the same potential for absolute veto over the
abortion decision that inheres in a parental consent statute
does not inhere in a parental notice statute, and therefore
that notice statutes are fundamentally different from--and less
burdensome than--consent statutes.''\134\
---------------------------------------------------------------------------
\132\See H.L. v. Matheson, 450 U.S. 398, 411 (1981) (``The Utah
Statute gives neither parents nor judges a veto power over the minor's
abortion decision.'').
\133\Ohio v. Akron Center for Reproductive Health, 497 U.S. 502,
511 (1992).
\134\Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352,
363 (4th Cir. 1998).
---------------------------------------------------------------------------
Parental involvement in a pregnant minor girl's abortion
decision is supported by the common-sense realization that
minors often lack the maturity to fully comprehend the
significance and consequences of their actions. In 1976, when
it first addressed Massachusetts' parental consent statute, the
Supreme Court recognized that with minors, ``there are
unquestionably greater risks of inability to give an informed
consent.''\135\ During its second review of Massachusetts'
parental consent law, the Court stated, ``Viewed together, our
cases show that although children generally are protected by
the same constitutional guarantees against governmental
deprivations as are adults, the State is entitled to adjust its
legal system to account for children's vulnerability and their
needs for concern, . . . sympathy, and . . . paternal
attention.''\136\ The Court continued to describe its previous
rulings to allow states to ``limit the freedom of children to
choose for themselves in the making of important, affirmative
choices with potentially serious consequences'' as being
``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.''\137\
---------------------------------------------------------------------------
\135\Bellotti v. Baird, 428 U.S. 132, 147 (1976) (Bellotti I).
\136\Bellotti II, 443 U.S. at 635 (quotations and citations
omitted).
\137\Id. at 635.
---------------------------------------------------------------------------
The Supreme Court has pointed to the ``guiding role of
parents in the upbringing of their children'' as the basis for
its rulings preserving for parents a unique legal authority
over the conduct of their children.\138\ The Court has reasoned
that ``parents naturally take an interest in the welfare of
their children[.]''\139\ This, in the Court's view, creates
``an important state interest in encouraging a family rather
than a judicial resolution of a minor's abortion
decision.''\140\ In H.L. v. Matheson,\141\ the Court upheld a
Utah statute requiring a physician to notify, if possible,
parents of a minor upon whom an abortion is to be performed and
stated:
---------------------------------------------------------------------------
\138\See id. at 637.
\139\Id. at 648.
\140\Id.
\141\450 U.S. 398 (1981).
There can be little doubt that the State 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. That is a grave
decision, and a girl of tender years, under emotional
stress, may be ill-equipped to make it without mature
advice and emotional support. It seems unlikely that
she will obtain adequate counsel and support from the
attending physician at an abortion clinic, where
abortions for pregnant minors frequently take
place.\142\
---------------------------------------------------------------------------
\142\Id. at 409-10.
In Planned Parenthood v. Casey, the Court upheld the
parental consent provisions of Pennsylvania's Abortion Control
Act of 1982, stating that they ``provide the parent or parents
of a pregnant young woman the opportunity to consult with her
in private, and to discuss the consequences of her decision in
the context of the values and moral or religious principles of
their family.''\143\ It continued, ``The State commonly
protects its youth from adverse governmental action and from
their own immaturity by requiring parental consent to or
involvement in important decisions by minors.''\144\
---------------------------------------------------------------------------
\143\505 U.S. 833, 899-900 (1992).
\144\Bellotti, 443 U.S. at 637.
---------------------------------------------------------------------------
It is instructive that the Court has always held that this
important duty to ensure and provide for the care and nurture
of minor children lies only with parents--a conclusion that
arises from the traditional legal recognition ``that natural
bonds of affection lead parents to act in the best interests of
their children.''\145\
---------------------------------------------------------------------------
\145\Parham v. J.R., 442 U.S. 584, 602 (1979)(emphasis added). See
also Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166 (1944)
(``It is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor
hinder.''); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (``The history
and culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition.'').
---------------------------------------------------------------------------
Significantly for CIANA, the Court recently struck down a
Washington State visitation law under which grandparents were
granted visitation to their grandchildren over the objection of
the children's mother precisely because it failed to provide
special protection for the fundamental right of parents to
control with whom their children associate.\146\ The Court
concluded that the lower court ``gave no special weight at
all'' to a mother's conclusion that excessive grandparent
visitation was not in her minor children's best interests, and
continued, ``so long as a parent adequately cares for his or
her children (i.e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the
family to further question the ability of that parent to make
the best decisions concerning the rearing of that parent's
children.''\147\ This failure, the Court stated, ``directly
contravened the traditional presumption that a fit parent will
act in the best interest of his or her child.''\148\
---------------------------------------------------------------------------
\146\Troxel v. Granville, 530 U.S. 57 (2000).
\147\Id. at 68-69.
\148\Id. at 69.
---------------------------------------------------------------------------
CIANA PROTECTS THE HEALTH OF MINOR GIRLS
Young girls face serious risks to their health and well-
being when they are secretly taken for abortions without their
parents' knowledge. When an abortion is performed on a girl
without the physician having full knowledge of her medical
history--which is usually available only from a parent--the
risks greatly increase. Moreover, minor girls who do not
involve their parents usually do not return for follow-up
treatment, which can lead to dangerous complications. 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. None of
these precautions can be taken when a pregnant girl is taken to
have an abortion without her parents' knowledge. Consequently,
when parents are not involved, the risks to the minor girl's
health significantly increase. CIANA is designed to safeguard
minor girls' physical and emotional health by helping to ensure
parental involvement in their interstate abortion decisions.
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
possess a much greater ability to evaluate and select competent
healthcare providers than their minor children often do:
In this case . . . we are concerned only with minors
who, according to the record, range in age from
children of 12 years to 17-year-old teenagers. Even the
latter 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.\149\
---------------------------------------------------------------------------
\149\Bellotti v. Baird, 443 U.S. 622, 641 n.21 (1979) (Bellotti
II).
The Supreme Court's concern for that ability of minors to
distinguish competent and ethical abortion providers is
particularly justified in states where non-physicians are
allowed, by statute, to perform abortions. The National
Abortion and Reproductive Rights Action League 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 20
minutes away from the location where the abortion is to
occur.\150\ 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.
---------------------------------------------------------------------------
\150\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 ensure that parents have
the opportunity to provide additional medical history and
information to abortion providers prior to performance of the
abortion. As the Supreme Court has stated:
The medical, emotional, and psychological consequences
of an abortion are serious and can be lasting . . . An
adequate medical and psychological case history is
important to the physician. Parents can provide medical
and psychological data, refer the physician to other
sources of medical history, such as family physicians,
and authorize family physicians to give relevant
data.\151\
---------------------------------------------------------------------------
\151\H.L. v. Matheson, 450 U.S. 398, 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.\152\
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.\153\ 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.\154\ Yet evidence was
presented that Sandra had a history of psychological illness
and that her behavior was noticeably different after the
abortion.\155\ 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.
---------------------------------------------------------------------------
\152\See Edison v. Reproductive Health Services, 863 S.W.2d 621
(Mo. App. E.D. 1993).
\153\See id. at 624.
\154\See id. at 628.
\155\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 a pregnant minor. Parental
involvement provides adults with the opportunity to advise and
assist the girl in giving her informed consent to the
procedure.
Third, parental involvement will improve medical treatment
of pregnant minors by ensuring that parents have adequate
knowledge to recognize and respond to any post-abortion
complications that may develop.\156\ The rate of many of the
complications associated with abortion are unknown. As a
clinician's guide states, ``The abortion reporting systems of
some counties 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.''\157\ Furthermore,
women typically have no pre-existing relationship with an
abortion provider,\158\ which likely accounts for the fact that
only about one-third return to the provider for their post-
operative exam.\159\ Teenagers are even less likely to return
for follow-up appointments.\160\ 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 for fear of compromising
the secrecy that often surrounds abortions.
---------------------------------------------------------------------------
\156\See Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502,
519 (1990).
\157\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).
\158\See Florida Dep't of Health v. North Florida Women's Health
and Counseling Service, 852 So.2d 254, 264 n.3 (Fla. App. 1 Dist.,
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.
\159\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).
\160\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-thirds of Vermont women
keep their follow up appointments, although ``teenagers are notorious
for `no-showing''').
---------------------------------------------------------------------------
At least one American court has held that a perforated
uterus is a ``normal risk'' associated with abortion.\161\
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.''\162\ Evidence about these dangers presented at trial
persuaded a Florida appellate court to uphold that State's
parental notification law:
---------------------------------------------------------------------------
\161\Reynier v. Delta Women's Clinic, 359 So.2d 733, 738 (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.''). Frequent injuries from
incomplete abortions are discussed in Swate v. Schiffers, 975 S.W.2d 70
(Tex. App.-San Antonio 1998) (abortionist's 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 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.'').
\162\Phillip G. Stubblefield and David A. Grimes, ``Current
Concepts: Septic Abortions,'' New Eng. J. Med. 310 (August 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.\163\
---------------------------------------------------------------------------
\163\Florida Dep't of Health v. North Florida Women's Health and
Counseling Service, 852 So.2d 254, 262-63 (Fla. App. 1 Dist. 2001),
quashed by North Florida Women's Health and Counseling Services, Inc.
v. State, 866 So.2d 612 (Fla. 2003) (striking down state law under
state constitution's ``right to privacy''). The Florida Constitution
was subsequently amended to state ``Notwithstanding a minor's right to
privacy . . . the Legislature is authorized to require by general law
for notification to a parent or guardian of a minor before the
termination of the minor's pregnancy.'' Fla. Stat. Ann. Const. Art. 10
Sec. 22.
Young adolescent girls are particularly at risk of certain
adverse 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 years old or younger.\164\ Cervical
injury is of serious concern because it may predispose the
young girl to adverse outcomes in future pregnancies. Girls 17
years old 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.\165\
---------------------------------------------------------------------------
\164\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 621-24.
\165\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. Dr.
Lucero, who supported the Child Custody Protection Act (federal
legislation similar to CIANA) in 1998, wrote in The New York
Times about his own experience with minor girls seeking
abortions. ``In almost all cases,'' Dr. Lucero wrote, ``the
only reason that a teen-age girl doesn't want to tell her
parents about her pregnancy is that she feels ashamed and
doesn't want to let her parents down.''\166\ However, according
to Dr. Lucero, ``parents are usually the ones who can best help
their teen-ager consider her options. And whatever the girl's
decision, parents can provide the necessary emotional support
and financial assistance.''\167\ 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 teen-ager who has an abortion
across state lines without her parents' knowledge is even more
unlikely to tell them that she is having complications.''\168\
---------------------------------------------------------------------------
\166\Bruce A. Lucero, M.D., ``Parental Guidance Needed,'' The New
York Times (July 12, 1998), section 4, at 1.
\167\Id.
\168\Id.
---------------------------------------------------------------------------
Opponents also argue that the bill needs a broader ``health
exception.'' It does not. CIANA specifically provides that its
notification requirements would not apply if ``the abortion is
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.'' If the concern is
about health risks of a non life-threatening nature, then the
best course of action, of course, is involving the parents.
Finally, the Supreme Court has upheld as constitutional a state
parental notification statute that did not contain a health
exception. That state statute provided only for a ``judicial
bypass'' exception, which would of course take some time for a
minor to utilize, and an exception for cases in which emergency
treatment prior to notice ``is necessary to prevent the woman's
death.''\169\
---------------------------------------------------------------------------
\169\Hodsgon v. Minnesota, 497 U.S. 417, 426 n.7 (1990) (citing
Minnesota statute Sec. 144.343, subd. 4(a)).
---------------------------------------------------------------------------
Without the knowledge that their daughters have had
abortions, parents are incapable of ensuring 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.
In short, the physical and psychological risks of abortions
to minors are great, and laws requiring parental involvement in
such abortions reduce that risk. The widespread practice of
evading such laws by transporting minors across State lines
through interstate commerce may be prevented only through
Federal legislation.
CIANA PROTECTS MINOR GIRLS 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.''\170\ 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.''\171\
Other studies have found that most teenage pregnancies are the
result of predatory practices by men who are substantially
older.\172\
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\170\American Academy of Pediatrics Committee on Adolescence,
``Adolescent Pregnancy--Current Trends and Issues: 1998,'' 103
Pediatrics 516, 519 (1999).
\171\Mike A. Males, ``Adult Involvement in Teenage Childbearing and
STD,'' 346 Lancet 64 (July 8,1995) (emphasis added).
\172\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); American Academy of Pediatrics Committee on
Adolescence, ``Adolescent Pregnancy--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 unwanted
sexual experiences, only 18% of the perpetrators were within
the victim's age group. Another 18% were three to 5 years older
than the victim. Seventeen percent were six to 10 years older,
and 40% were more than 10 years older than their victims.\173\
Another study reports that when a minor's parents have not been
told about her pregnancy, 58 percent of the time it is the
girl's boyfriend who accompanies her for an abortion, and the
minor's boyfriend helped pay for the abortion 76 percent of the
time.\174\
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\173\See Gershenson, et al. ``The Prevalence of Coercive Experience
Among Teenage Mothers,'' 24 J. Interpersonal Violence 4 (1989).
\174\See Stanley Henshaw & Kathryn Post, Parental Involvement in
Minors' Abortion Decisions, Family Planning Perspectives, Sept./Oct.
1992, at 206.
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As Professor Teresa Stanton Collett testified before the
House Constitution Subcommittee:
[A]s this Congress learned through a congressional
report from the Center for Disease Control, two-thirds
of the fathers of teenage mothers are age 20 years or
older, suggesting that there is in fact differences in
power and status between the sexual partners.\175\ In
addition to that, a survey of 1,500 unmarried minors
having abortions revealed that among the minors who
reported that neither parent knew of the abortion, 89
percent said that a boyfriend was involved in deciding
or arranging the abortion, and 93 percent of those 15
and under said that the boyfriend was involved.\176\
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\175\See Department of Health and Human Services, ``Report to
Congress on Out-of-Wedlock Childbearing'' (September 1995) at x
(``Evidence also indicates that among unmarried teenage mothers, two-
thirds of the fathers are age 20 or older, suggesting that differences
in power and status exist between many sexual partners.'').
\176\Child Custody Protection Act: Hearings on H.R. 1755 Before the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th
Cong., 22 (July 20, 2004) (statement of Teresa Collett).
Experience suggests that sexual predators recognize the
advantage of their victims' obtaining an abortion.\177\ Not
only does an abortion eliminate a critical piece of evidence of
the criminal conduct,\178\ but it also allows the abuse to
continue undetected.\179\ As a recent presentation given at a
U.S. Department of Health and Human Services Conference on the
Sexual Exploitation of Teens showed, of minor girls' first
sexual experiences, 13% constitute statutory rape.\180\
Further, the younger a sexually experienced teen is, the more
likely they are to experience statutory rape. Of sexually
experienced teens age 13 or younger, 65% experienced statutory
rape. Of those age 14, 53% experienced statutory rape. And of
those age 15, 41% experienced statutory rape.\181\ And young
girls who are younger at their first sexual experience are more
likely to say their first sexual experience was non-
voluntary.\182\ Also, blacks and Hispanics are more likely to
experience statutory rape.\183\ Parental involvement laws help
ensure that parents have the opportunity to protect their
daughters from those who would victimize them further. Secret
abortions protect and perpetuate the illegal conduct of these
adult male predators.
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\177\On June 14, 2000, a 36-year-old Omaha man who impersonated the
father of his teen-age victim in order to assist her in obtaining an
abortion was sentenced to 1\1/2\-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, e.g., Child
Custody Protection Act: Hearings on H.R. 3682 Before the Subcomm. on
the Constitution of the House Comm. on the Judiciary, 105th Congress,
May 21, 1998 (statement of Joyce Farley). http://www.house.gov/
judiciary/222460.htm.
\178\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. Commonwealth,
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 682 (Ohio App.
1985) (prosecutor subject to contempt order for failure to comply with
discovery orders).
\179\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 abuser 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).
\180\Kristin Moore, Ph.D. and Jennifer Manlove, Ph.D., ``A
Demographic Portrait of Statutory Rape,'' Presentation given at the
United States Department of Health and Human Services' Conference on
the Sexual Exploitation of Teens (March 23-24, 2005) (defining
statutory rape as occurring when teens aged 15 or younger have sex with
a partner 3 or more years older).
\181\Id.
\182\Id. (of those younger than 14, 18%; of those age 15-16, 10%;
and of those age 17-19, 5%).
\183\Id. (Hispanic, 17%, black, 16%, white, 11%).
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CONGRESS HAS CLEAR CONSTITUTIONAL AUTHORITY TO ENACT CIANA
CIANA is a regulation of commerce among the several
states.\184\ Commerce, as that term is used in the
Constitution, includes travel whether or not that travel is for
reasons of business.\185\ To transport another person across
state lines is to engage in commerce among the states.\186\
Under current Supreme Court precedents, Congress can enact
legislation concerning interstate commerce, such as CIANA, for
reasons related primarily to local activity rather than
commerce itself.\187\
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\184\See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241 (1964) (upholding enactment of Title II of the Civil Rights
Act under Congress' commerce clause power).
\185\See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
\186\There is therefore no need to address the scope of Congress'
power to regulate activity that is not, but that affects, commerce
among the States. 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).
\187\See United States v. Darby, 312 U.S. 100 (1941).
---------------------------------------------------------------------------
The interstate transportation of minors for the purpose of
securing an abortion is clearly a form of interstate commerce
which the Constitution expressly empowers Congress to
regulate.\188\ CIANA regulates only conduct which involves
interstate movement, activity which the national government
alone is expressly authorized by the Constitution to address.
---------------------------------------------------------------------------
\188\U.S. Const., art. I, Sec. 8, cl. 3.
---------------------------------------------------------------------------
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,\189\ which, before its
amendment in 1986, prohibited 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.\190\ 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.\191\ The Mann Act flatly
prohibited the interstate transportation of women for
``prostitution'' or for ``any other immoral purpose.'' In
upholding the law as a valid exercise of Congress' commerce
power, the Court stated:
---------------------------------------------------------------------------
\189\18 U.S.C. Sec. 2421 (1970). As amended, the statute prohibits
the knowing transportation of any individual across state lines ``with
intent that such individual engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal offense,
or attempts to do so . . .'' 18 U.S.C. Sec. 2421 (1999).
\190\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.'').
\191\See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978).
The 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.\192\
---------------------------------------------------------------------------
\192\Caminetti, 242 U.S. 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, or from physicians who might not otherwise
notify a minor's parents.
The Mann Act is not the only example of a Federal law 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.''\193\ A statute to this effect is still
in force.\194\ 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.\195\ That provision was upheld by the Supreme
Court in Champion v. Ames\196\ and is still in effect.
---------------------------------------------------------------------------
\193\United States v. Edge Broadcasting Co., 509 U.S. 418, 421
(1993).
\194\See 18 U.S.C.A. Sec. 1302 (prohibiting the mailing of lottery
tickets or letters, circulars, and other materials regarding a
lottery).
\195\See 18 U.S.C. Sec. 1301.
\196\188 U.S. 321 (1903).
---------------------------------------------------------------------------
CIANA does not supercede, override, or alter existing state
laws regarding minors' abortions. Rather, CIANA is predicated
on Congress' authority to regulate interstate activity. The
bill does nothing to regulate purely local activity, and it
does not impose any new rules regarding conduct that occurs
solely within one state. CIANA embodies rules to regulate
interstate activities that involve two or more states, as is
entirely appropriate under the Commerce Clause. In short, CIANA
does not encroach on state powers.
CIANA IS CONSISTENT WITH SUPREME COURT PRECEDENT
In Roe v. Wade,\197\ 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 that 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.\198\ In Planned Parenthood v.
Casey,\199\ 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.\200\
---------------------------------------------------------------------------
\197\410 U.S. 113 (1973).
\198\See Planned Parenthood v. Casey, 505 U.S. 833, 985 (1992)
(Scalia, J., dissenting).
\199\505 U.S. 833 (1992).
\200\For the articulation of the ``undue burden'' standard in
Casey, see id. at 874-80. 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 984-95 (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 involving babies that are not viable. 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.'').
---------------------------------------------------------------------------
CIANA does not place an undue burden upon a woman's right
to an abortion. To the extent that a state rule is inconsistent
with the Court's doctrine, that rule is ineffective and CIANA
would not make it effective. Regarding the bill's provisions
that govern interstate abortions conducted in States without
parental involvement laws, a requirement that a parent simply
be notified is not an undue burden.
Following the Court's decision in Roe v. Wade,\201\ many
states enacted parental notice or consent 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.
---------------------------------------------------------------------------
\201\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.\202\ 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.\203\ 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 . . . may give effective consent for termination of her
pregnancy.''\204\
---------------------------------------------------------------------------
\202\428 U.S. 52 (1976).
\203\Id. at 74.
\204\Id. at 74, 75.
---------------------------------------------------------------------------
The Court next addressed state parental involvement laws in
Bellotti v. Baird,\205\ 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.\206\ The statute returned to the Supreme
Court in Bellotti v. Baird (Bellotti II).\207\ 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.
---------------------------------------------------------------------------
\205\428 U.S. 132 (1976).
\206\In doing so the Court recognized minors bear ``unquestionably
greater risks of inability to give an informed consent.'' Id. at 147.
\207\443 U.S. 622 (1979).
---------------------------------------------------------------------------
Justice Powell stated in his plurality opinion,
``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.''\208\ 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: ``[t]he peculiar vulnerability of children; their
inability to make critical decisions in an informed, mature
manner; and the importance of the parental role in child
rearing.''\209\ Thus, the plurality sought to design guidelines
for a judicial bypass proceeding that allowed states to address
these interests in a parental consent statute.
---------------------------------------------------------------------------
\208\Id. at 638.
\209\Id. at 634.
---------------------------------------------------------------------------
In H.L. v. Matheson,\210\ 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 held 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.''\211\
---------------------------------------------------------------------------
\210\450 U.S. 398 (1981).
\211\Id. at 409-10.
---------------------------------------------------------------------------
In Planned Parenthood Association of Kansas City, Missouri,
Inc. v. Ashcroft,\212\ the Court upheld the constitutionality
of a State law that 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.
---------------------------------------------------------------------------
\212\462 U.S. 476 (1983).
---------------------------------------------------------------------------
In Ohio v. Akron Center for Reproductive Health,\213\ 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.\214\ 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.
---------------------------------------------------------------------------
\213\497 U.S. 502 (1990).
\214\See id. at 514-15.
---------------------------------------------------------------------------
In Hodgson v. Minnesota,\215\ 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.
---------------------------------------------------------------------------
\215\497 U.S. 417 (1990).
---------------------------------------------------------------------------
CIANA, consistent with these Supreme Court precedents,
requires--in cases in which a minor from one state seeks to
obtain an abortion in another state without a parental
involvement law--that before an abortion can be obtained,
either (1) the physician is presented with documentation
showing with a reasonable degree of certainty that a court in
the minor's state of residence has waived any parental
notification required by the laws of that state, or has
otherwise authorized that the minor be allowed to procure an
abortion; (2) the minor declares in a signed written statement
that she is the victim of sexual abuse, neglect, or physical
abuse by a parent, and, before an abortion is performed on the
minor, the physician notifies the authorities specified to
receive reports of child abuse or neglect by the law of the
State in which the minor resides of the known or suspected
abuse or neglect; or (3) the abortion is 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.
In Planned Parenthood of Central Missouri v. Danforth,\216\
the first of a series of Supreme Court cases dealing with
parental consent or notification laws, noted liberal Justice
Stewart wrote, ``There can be little doubt that the State
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 of whether or not
to bear a child.''\217\
---------------------------------------------------------------------------
\216\428 U.S. 52 (1976).
\217\Planned Parenthood v. Danforth, 428 U.S. 52, 91 (1976)
(Stewart, J., concurring).
---------------------------------------------------------------------------
While the Supreme Court has, to date, ``declined to decide
whether a parental notification statute must include some sort
of bypass provision to be constitutional,''\218\ it is of note
that even famously liberal Justice Stevens wrote in his
concurring opinion in H.L. v. Matheson, that ``[t]he fact that
certain members of the class of unmarried minor women who are
suffering unwanted pregnancies and desire to terminate the
pregnancies may actually be emancipated or sufficiently mature
to make a well-reasoned abortion decision does not, in my view,
undercut the validity of the [state] statute [in question] . .
. [A] state legislature has constitutional power to utilize,
for purposes of implementing a parental-notice requirement, a
yardstick based upon the chronological age of unmarried
pregnant women. That this yardstick will be imprecise or even
unjust in particular cases does not render its use by a state
legislature impermissible under the Federal
Constitution.''\219\
---------------------------------------------------------------------------
\218\Lambert v. Wicklund, 520 U.S. 292, 295 (1997).
\219\H.L. v. Matheson, 450 U.S. 398, 424-25 (1981) (Stevens, J.,
concurring) (citations and quotations omitted).
---------------------------------------------------------------------------
Furthermore, the Court in Hodgson v. Minnesota,\220\ wrote
that:
---------------------------------------------------------------------------
\220\497 U.S. 417 (1990).
We think it is clear that a requirement that a minor
wait 48 hours after notifying a single parent of her
intention to get an abortion would reasonably further
the legitimate state interest in ensuring that the
minor's decision is knowing and intelligent . . . The
brief waiting period provides the parent the
opportunity to consult with his or her spouse and a
family physician, and it permits the parent to inquire
into the competency of the doctor performing the
abortion, discuss the religious or moral implications
of the abortion decision, and provide the daughter
needed guidance and counsel in evaluating the impact of
the decision on her future.''\221\
---------------------------------------------------------------------------
\221\Hodgson v. Minnesota, 497 U.S. 417, 448-49 (1990).
The Supreme Court has clearly indicated that a parental
notification requirement does not impose an undue burden on a
minor's ability to obtain an abortion, finding that ``[a] 48-
hour delay imposes only a minimal burden on the right of the
minor to decide whether or not to terminate her
pregnancy.''\222\
---------------------------------------------------------------------------
\222\Id. at 449 (emphasis added).
---------------------------------------------------------------------------
The Court then stated in Planned Parenthood v. Casey that:
Numerous forms of state regulation might have the
incidental effect of increasing the cost or decreasing
the availability of medical care, whether for abortion
or any other medical procedure. The fact that a law
which serves a valid purpose, one not designed to
strike at the right itself, has the incidental effect
of making it more difficult or more expensive to
procure an abortion cannot be enough to invalidate it.
Only where state regulation imposes an undue burden on
a woman's ability to make this decision does the power
of the State reach into the heart of the liberty
protected by the Due Process Clause.\223\
---------------------------------------------------------------------------
\223\Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992).
The Court continued that ``[a] finding of an undue burden
is a shorthand for the conclusion that a state regulation has
the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable
fetus.''\224\ A parental notice requirement, which the Supreme
Court has described as a ``minimal burden''\225\ is clearly not
a ``substantial obstacle''\226\ to receiving an abortion.
---------------------------------------------------------------------------
\224\Id. at 877 (1992) (emphasis added).
\225\Hodgson v. Minnesota, 497 U.S. 417, 449 (1990) (emphasis
added).
\226\The Supreme Court elaborated that ``Some guiding principles
should emerge. What is at stake is the woman's right to make the
ultimate decision, not a right to be insulated from all others in doing
so. Regulations which do no more than create a structural mechanism by
which the State, or the parent or guardian of a minor, may express
profound respect for the life of the unborn are permitted, if they are
not a substantial obstacle to the woman's exercise of the right to
choose.'' Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992).
---------------------------------------------------------------------------
The Supreme Court continued: ``We reject the rigid
trimester framework of Roe v. Wade. To promote the State's
profound interest in potential life, throughout pregnancy the
State may take measures to ensure that the woman's choice is
informed, and measures designed to advance this interest will
not be invalidated as long as their purpose is to persuade the
woman to choose childbirth over abortion. These measures must
not be an undue burden on the right . . . As with any medical
procedure, the State may enact regulations to further the
health or safety of a woman seeking an abortion . . .
[P]arental notification or consent requirements . . . and our
judgment that they are constitutional, are based on the quite
reasonable assumption that minors will benefit from
consultation with their parents and that children will often
not realize that their parents have their best interests at
heart.''\227\
---------------------------------------------------------------------------
\227\Planned Parenthood v. Casey, 505 U.S. 833, 878, 895 (1992).
---------------------------------------------------------------------------
Even famously liberal Justice Stevens wrote in his
concurring opinion in H.L. v. Matheson,\228\ that:
---------------------------------------------------------------------------
\228\450 U.S. 398 (1981).
In my opinion, the special importance of a young
woman's abortion decision . . . provides a special
justification for reasonable state efforts intended to
ensure that the decision be wisely made. Such
reasonable efforts surely may include a requirement
that an abortion be procured only after consultation
with a licensed physician. And, because the most
significant consequences of the [abortion] decision are
not medical in character, the State unquestionably has
an interest in ensuring that a young woman receive
other appropriate consultation as well. In my opinion,
the quality of that interest is plainly sufficient to
support a state legislature's determination that such
appropriate consultation should include parental advice
. . . [T]he State may legitimately decide that such
consultation should be made more probable by ensuring
that parents are informed of their daughter's decision:
If there is no parental-[notice] requirement, many
minors will submit to the abortion procedure without
ever informing their parents. An assumption that the
parental reaction will be hostile, disparaging, or
violent no doubt persuades many children simply to
bypass parental counsel which would in fact be loving,
supportive, and, indeed, for some indispensable. It is
unrealistic, in my judgment, to assume that every
parent-child relationship is either (a) so perfect that
communication and accord will take place routinely or
(b) so imperfect that the absence of communication
reflects the child's correct prediction that the parent
will . . . [act] arbitrarily to further a selfish
interest rather than the child's interest. A state
legislature may conclude that most parents will be
primarily interested in the welfare of their children,
and further, that the imposition of a parental-[notice]
requirement is an appropriate method of giving the
parents an opportunity to foster that welfare by
helping a pregnant distressed child to make and to
implement a correct decision.\229\
---------------------------------------------------------------------------
\229\H.L. v. Matheson, 450 U.S. 398, 422-24 (1981) (Stevens, J.,
concurring) (citations and quotations omitted).
Even earlier, the Court stated in H.L. v. Matheson that
``[t]he Constitution does not compel a state to fine-tune its
statutes so as to encourage or facilitate abortions. To the
contrary, state action encouraging childbirth except in the
most urgent circumstances is rationally related to the
legitimate governmental objective of protecting potential
life.''\230\
---------------------------------------------------------------------------
\230\Id. at 413 (citations and quotations omitted).
---------------------------------------------------------------------------
THE RIGHT TO TRAVEL IS PRESERVED UNDER CIANA
Opponents also argue that CIANA 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 CIANA on these grounds argue
that the legislation will 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 ever limited by the ``right to travel.'' Even
assuming, however, that Congress' authority under the Commerce
Clause is limited by the right to travel doctrine,\231\ 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.''\232\ 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.
---------------------------------------------------------------------------
\231\Contrary to claims by some opponents of CIANA, Saenz v. Roe,
526 U.S. 489 (1999) does not in any way impugn the constitutionality of
CIANA. In Saenz, the Supreme Court addressed ``the citizen's right to
be treated equally in her new State of residence.'' Id. at 505
(emphasis added). A minor who is a resident of one state and who
crosses state lines to obtain an abortion in another state is by
definition not a resident of the state in which such abortion is
performed. Both operative sections of CIANA specifically restrict its
applications to situations in which a minor resides in one state and
seeks an abortion in another state.
\232\Saenz v. Roe, 526 U.S. 489, 502 (1999).
---------------------------------------------------------------------------
However, the notion that CIANA is inconsistent with the
constitutional right to travel is not supportable under the
Supreme Court's jurisprudence. Neither a state nor the Federal
Government can interfere with a citizen's ability to leave a
state for the purpose of visiting another State or prevent its
citizens from returning; either would violate ``the right of a
citizen of one State to enter and to leave another
State.''\233\ CIANA does not even implicate this limitation,
for it does not preclude the minor from traveling. The minor's
right to travel to another state is wholly unimpeded by CIANA.
---------------------------------------------------------------------------
\233\See id. at 500.
---------------------------------------------------------------------------
In addition, the Court has recognized that the right to
interstate travel ``may be regulated or controlled by the
exercise of a State's police power'' and by the Federal
Government as well.\234\ 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 heightened risk of suffering from long-term
physical and psychological complications. 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.''\235\ 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.''\236\ 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,''\237\ 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.''\238\
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.'''\239\
---------------------------------------------------------------------------
\234\United States v. Guest, 383 U.S. 745, 759 n.17 (1966).
\235\Bellotti v. Baird, 443 U.S. 622, 638 (1979) (Bellotti II).
\236\Id. at 639.
\237\Id. at 634.
\238\Id. at 635.
\239\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.\240\
---------------------------------------------------------------------------
\240\Id.
Therefore, ``[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.''\241\ Consequently, 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. Similarly,
Congress may restrict the right of minors to travel across
state lines to a greater extent than it may adults.
---------------------------------------------------------------------------
\241\Id. at 638-39.
---------------------------------------------------------------------------
CIANA's opponents sometimes also argue that CIANA violates
the rights of states to enact and enforce their own laws
governing conduct within their territorial boundaries. This
contention is clearly specious because CIANA does not attempt
to regulate conduct occurring solely within the territorial
boundaries of a state. Rather, CIANA regulates interstate
commerce, and Congress has the exclusive authority to regulate
such activity.
Hearings
The Committee's Subcommittee on the Constitution held 1 day
of hearings on H.R. 2299 on March 8, 2012. Testimony was
received from Professor Teresa Collett, Professor of Law,
University of St. Thomas School of Law; The Very Rev. Dr.
Katherine Hancock Ragsdale, President and Dean, Episcopal
Divinity School; and Dr. Michael New, Department of Social
Sciences, University of Michigan--Dearborn.
Committee Consideration
On March 27, 2012, the Committee met in open session and
ordered the bill H.R. 2299 favorably reported without
amendment, by a rollcall vote of 20 to 13, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 2299.
1. An amendment offered by Mr. Nadler that provides an
exemption for grandparents and adult siblings, provided that
such grandparent or adult sibling did not have sexual contact
with the minor. Failed by a vote of 7-16.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly.................................
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin.................................. X
Mr. Marino...................................
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt.....................................
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 7 16
------------------------------------------------------------------------
2. An amendment offered by Mr. Scott that provides an
exemption for taxicab drivers, and others in the business of
professional transport, unless the individual had sexual
contact with the minor. Failed by a vote of 10-14.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle...................................
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 10 14
------------------------------------------------------------------------
3. An amendment offered by Mr. Watt that provides an
exemption for persons transporting a minor if delay endangers
the physical health of the minor seeking the abortion. Failed
by a vote of 11-13.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle...................................
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 13
------------------------------------------------------------------------
4. An amendment offered by Mr. Watt that provides an
exemption for cases where the abortion is necessary to protect
the health or save the life of the abortion-seeking minor.
Failed by a vote of 12-15.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 12 15
------------------------------------------------------------------------
5. An amendment offered by Ms. Jackson Lee that provides an
exemption for clergy, godparents, aunts, uncles, or first
cousins, unless the individual had sexual contact with the
minor. Failed by a vote of 11-16.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 16
------------------------------------------------------------------------
6. An amendment offered by Ms. Jackson Lee that provides an
exemption for cases where pregnancy is a result of sexual
contact with parent, guardian, or other household member.
Failed by a vote of 11-17.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 17
------------------------------------------------------------------------
7. An amendment offered by Ms. Jackson Lee that changes the
effective date from 45 days to 120 days after enactment. Failed
by a vote of 11-17.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 17
------------------------------------------------------------------------
8. An amendment by Mr. Johnson that provides an exception
to the disclosure requirement if the minor's home poses a
threat to physical safety. Failed by a vote of 11-18.
ROLLCALL NO. 8
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 18
------------------------------------------------------------------------
9. An amendment offered by Mr. Quigley that provides an
exemption for cases of rape or incest. Failed by a vote of 11-
15.
ROLLCALL NO. 9
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 11 15
------------------------------------------------------------------------
10. An amendment offered by Ms. Chu that provides an
exemption in Section 2 of the bill for those who have
transported a minor in order to protect the life and health of
the minor. Failed by a vote of 9-15.
ROLLCALL NO. 10
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 9 15
------------------------------------------------------------------------
11. An amendment offered by Mr. Nadler that provides for a
Federal judicial bypass. Failed by a vote of 8-16.
ROLLCALL NO. 11
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes...................................
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross.....................................
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member.............
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley..................................
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis....................................
--------------------------
Total.................................... 8 16
------------------------------------------------------------------------
12. An en bloc amendment offered by Mr. Scott that
restricts prosecution to offenders in the first degree and
provides that no Federal notification is required if both the
minor's home state, and the state in which she is seeking an
abortion, do not require parental involvement in the minor's
decision. Failed by a vote of 14-17.
ROLLCALL NO. 12
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes...................................
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross..................................... X
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters................................... X
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 14 17
------------------------------------------------------------------------
13. H.R. 2299 was favorably reported without amendment, by
a rollcall vote of 20 to 13, a quorum being present.
ROLLCALL NO. 13
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross..................................... X
Ms. Adams....................................
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters................................... X
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 20 13
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises 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.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives 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. 2299, 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, April 9, 2012.
Hon. Lamar Smith, 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. 2299, the ``Child
Interstate Abortion Notification 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,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2299--Child Interstate Abortion Notification Act.
As ordered reported by the House Committee on the Judiciary on
April 9, 2012.
CBO estimates that implementing H.R. 2299 would have no
significant cost to the Federal Government. Enacting the bill
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any
effects would be insignificant for each year.
H.R. 2299 would establish new Federal crimes relating to
the transporting of minors across State lines without parental
notification to obtain abortions. Because the legislation would
establish new offenses, the government would be able to pursue
cases that it otherwise would not be able to prosecute. We
expect that H.R. 2299 would apply to a relatively small number
of offenders, so any increase in costs for law enforcement,
court proceedings, or prison operations would not be
significant. Any such costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 2299
could be subject to criminal fines, the Federal Government
might collect additional fines if the legislation is enacted.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. CBO expects that any additional
revenues and direct spending would not be significant because
of the small number of cases likely to be affected.
H.R. 2299 contains an intergovernmental and a private-
sector mandate as defined in the Unfunded Mandates Reform Act
(UMRA) by requiring doctors, in certain cases, to provide
parental notification in person or by certified mail before
performing an abortion on a minor who is not a resident of the
State in which the abortion would be performed. CBO estimates
the cost for doctors in publicly owned or private medical
facilities to comply with that mandate would be minimal. The
bill also contains a private-sector mandate by prohibiting the
transport of a minor across State lines with the intent to
obtain an abortion in a State that does not require parental
notification or consent. CBO estimates that the aggregate costs
of the intergovernmental and private-sector mandates would be
small and well below the annual thresholds established in UMRA
($73 million for intergovernmental mandates and $146 million
for private-sector mandates in 2012, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs) and Melissa Merrell and Marin Randall (for
mandates). The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2299 is designed to prohibit taking minors across State lines
in circumventions of laws requiring the involvement of parents
in abortion decisions.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2299 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title.
Section 1 provides this Act may be cited as the ``Child
Interstate Abortion Notification Act.''
Sec. 2. Transportation of Minors in Circumvention of Certain Laws
Relating to Abortion.
Subsection (a) of Section 2 provides that, unless one of
the exceptions listed below is met, whoever knowingly
transports a minor across a State line, with the intent that
such minor obtain an abortion, and thereby abridges the right
of a parent under a law (in force in the minor's state of
residence) requiring parental involvement in a minor's abortion
decision, shall be fined or imprisoned not more than 1 year, or
both. An abridgement of a parent's right occurs if an abortion
is performed or induced on the minor, in a State other than the
State where the minor 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 minor resides.
Subsection (b) of Section 2 provides for the following
exceptions to prosecuting or suing someone under this section:
(1) the prohibition 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) the bill exempts
from prosecution or suit the minor herself (the girl being
transported) and any parent of that minor.
Subsection (c) of Section 2 provides that a defendant can
present an affirmative defense to a prosecution for an offense,
or to a lawsuit, based on a violation of this section if the
defendant: (1) reasonably believed, based on information the
defendant obtained directly from a parent of the minor, that
before the minor obtained the abortion, the parental consent or
notification took place that was required under State law had
the abortion been performed in the State where the minor
resides; or (2) was presented with documentation showing with a
reasonable degree of certainty that a court in the minor's
State of residence waived any parental notification required by
the laws of that State, or otherwise authorized that the minor
be allowed to obtain an abortion.
Subsection (d) of Section 2 provides that any parent who
suffers harm from a violation of subsection (a) may obtain
appropriate relief in a civil action.
Subsection (e) of Section 2 provides, among other, the
following definitions. The term a ``law requiring parental
involvement in a minor's abortion decision'' means a law
requiring, before an abortion is performed on a minor, either:
(1) notification to, or consent of, a parent of that minor; or
(2) proceedings in a State court. A ``law requiring parental
involvement in a minor's abortion decision'' does not include a
law that allows notification or consent to be given by anyone
other than a ``parent'' as defined in the bill. 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 State law requiring parental
involvement in a minor's abortion decision. The term ``parent''
means: (1) a parent or guardian; (1) a legal custodian; or (3)
a person with the requisite legal status to have 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.
Sec. 3. Child Interstate Abortion Notification.
Subsection (a) of Section 3 provides that a physician who
knowingly performs or induces an abortion on a minor in
violation of the requirements of this section shall be fined
under this title or imprisoned not more than 1 year, or both.
Subsection (a) further provides that, unless one of the
exceptions described below is met, a physician who knowingly
performs or induces an abortion on a minor who is a resident of
a State other than the State in which the abortion is performed
must provide at least 24 hours actual notice to a parent of the
minor before performing the abortion. If actual notice to such
parent is not possible after a reasonable effort has been made,
24 hours constructive notice must be given to a parent.
Subsection (b) of Section 3 provides that subsection (a)
does not apply if: (1) the abortion is performed or induced in
a State that has a law in force requiring parental involvement
in a minor's abortion decision and the physician complies with
the requirements of that law; (2) the physician is presented
with documentation showing with a reasonable degree of
certainty that a court in the minor's State of residence has
waived any parental notification required by the laws of that
State, or has otherwise authorized that the minor be allowed to
procure an abortion; (3) the minor declares in a signed written
statement that she is the victim of sexual abuse, neglect, or
physical abuse by a parent, and, before an abortion is
performed on the minor, the physician notifies the authorities
specified to receive reports of child abuse or neglect by the
law of the State in which the minor resides of the known or
suspected abuse or neglect; (4) the abortion is 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; or (5) the minor is
physically accompanied by a person who presents the physician
or his agent with documentation showing with a reasonable
degree of certainty that he or she is in fact the parent of
that minor.
Subsection (c) of Section 3 provides that any parent who
suffers harm from a violation of subsection (a) may obtain
appropriate relief in a civil action.
Subsection (d) of Section 3 defines the following terms,
among others. The term ``actual notice'' means the giving of
written notice directly, in person. The term ``constructive
notice'' means notice that is given by certified mail, return
receipt requested, restricted delivery to the last known
address of the person being notified, with delivery deemed to
have occurred 48 hours following noon on the next day
subsequent to mailing on which regular mail delivery takes
place, days on which mail is not delivered excluded. The term a
``law requiring parental involvement in a minor's abortion
decision'' is given the same meaning as in Section 2. The term
``minor'' means an individual who is not older than 18 years
and who is not emancipated under State law. The term ``parent''
means a parent or guardian; a legal custodian; or a person
standing in loco parentis who has care and control of the
minor, and with whom the minor regularly resides, as determined
by State law. The term ``physician'' means a doctor of medicine
legally authorized to practice medicine by the State in which
such doctor practices medicine, or any other person legally
empowered under State law to perform an abortion.
Sec. 4. Severability and Effective Date.
Subsection (a) of Section 4 provides that if any provision
of this Act, or any application thereof, is found
unconstitutional, that finding shall not affect any provision
or application of the Act not so adjudicated.
Subsection (b) of Section 4 provides that the provisions of
this Act shall take effect upon enactment.
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
Chapter. Sec.
General Provisions...............................................1
* * * * * * *
117A. Transportation of minors in circumvention of certain laws
relating to abortion................................ 2431
117B. Child interstate abortion notification...................... 2435
* * * * * * *
CHAPTER 117A--TRANSPORTATIONOF MINORS IN CIRCUMVENTION OF CERTAIN LAWS
RELATING TO ABORTION
Sec.
2431. Transportation of minors in circumvention of certain laws relating
to abortion.
2432. 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 a minor across a
State line, with the intent that such minor 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 minor 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 or induced on the
minor, in a State or a foreign nation other than the
State where the minor 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 minor
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) A minor transported in violation of this
section, and any parent of that minor, 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 of this title 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--
(1) reasonably believed, based on information the
defendant obtained directly from a parent of the minor,
that before the minor obtained the abortion, the
parental consent or notification 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 minor
resides; or
(2) was presented with documentation showing with a
reasonable degree of certainty that a court in the
minor's State of residence waived any parental
notification required by the laws of that State, or
otherwise authorized that the minor be allowed to
procure an abortion.
(d) Civil Action.--Any parent who suffers harm from a
violation of subsection (a) may obtain appropriate relief in a
civil action unless the parent has committed an act of incest
with the minor subject to subsection (a).
(e) Definitions.--For the purposes of this section--
(1) the term ``abortion'' means the use or
prescription of any instrument, medicine, drug, or any
other substance or device intentionally to terminate
the pregnancy of a female known to be pregnant, with an
intention other than to increase the probability of a
live birth, to preserve the life or health of the child
after live birth, to terminate an ectopic pregnancy, or
to remove a dead unborn child who died as the result of
a spontaneous abortion, accidental trauma or a criminal
assault on the pregnant female or her unborn child;
(2) the term a ``law requiring parental involvement
in a minor's abortion decision'' means 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;
(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;
(4) 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; and
(5) the term ``State'' includes the District of
Columbia and any commonwealth, possession, or other
territory of the United States, and any Indian tribe or
reservation.
Sec. 2432. Transportation of minors in circumvention of certain laws
relating to abortion
Notwithstanding section 2431(b)(2), whoever has committed
an act of incest with a minor and knowingly transports the
minor across a State line with the intent that such minor
obtain an abortion, shall be fined under this title or
imprisoned not more than one year, or both. For the purposes of
this section, the terms ``State'', ``minor'', and ``abortion''
have, respectively, the definitions given those terms in
section 2435.
CHAPTER 117B--CHILDINTERSTATE ABORTION NOTIFICATION
Sec.
2435. Child interstate abortion notification.
Sec. 2435. Child interstate abortion notification
(a) Offense.--
(1) Generally.--A physician who knowingly performs
or induces an abortion on a minor in violation of the
requirements of this section shall be fined under this
title or imprisoned not more than one year, or both.
(2) Parental notification.--A physician who
performs or induces an abortion on a minor who is a
resident of a State other than the State in which the
abortion is performed must provide, or cause his or her
agent to provide, at least 24 hours actual notice to a
parent of the minor before performing the abortion. If
actual notice to such parent is not possible after a
reasonable effort has been made, at least 24 hours
constructive notice must be given to a parent before
the abortion is performed.
(b) Exceptions.--The notification requirement of subsection
(a)(2) does not apply if--
(1) the abortion is performed or induced in a State
that has, in force, a law requiring parental
involvement in a minor's abortion decision and the
physician complies with the requirements of that law;
(2) the physician is presented with documentation
showing with a reasonable degree of certainty that a
court in the minor's State of residence has waived any
parental notification required by the laws of that
State, or has otherwise authorized that the minor be
allowed to procure an abortion;
(3) the minor declares in a signed written
statement that she is the victim of sexual abuse,
neglect, or physical abuse by a parent, and, before an
abortion is performed on the minor, the physician
notifies the authorities specified to receive reports
of child abuse or neglect by the law of the State in
which the minor resides of the known or suspected abuse
or neglect;
(4) the abortion is 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, but an
exception under this paragraph does not apply unless
the attending physician or an agent of such physician,
within 24 hours after completion of the abortion,
notifies a parent in writing that an abortion was
performed on the minor and of the circumstances that
warranted invocation of this paragraph; or
(5) the minor is physically accompanied by a person
who presents the physician or his agent with
documentation showing with a reasonable degree of
certainty that he or she is in fact the parent of that
minor.
(c) Civil Action.--Any parent who suffers harm from a
violation of subsection (a) may obtain appropriate relief in a
civil action unless the parent has committed an act of incest
with the minor subject to subsection (a).
(d) Definitions.--For the purposes of this section--
(1) the term ``abortion'' means the use or
prescription of any instrument, medicine, drug, or any
other substance or device intentionally to terminate
the pregnancy of a female known to be pregnant, with an
intention other than to increase the probability of a
live birth, to preserve the life or health of the child
after live birth, to terminate an ectopic pregnancy, or
to remove a dead unborn child who died as the result of
a spontaneous abortion, accidental trauma, or a
criminal assault on the pregnant female or her unborn
child;
(2) the term ``actual notice'' means the giving of
written notice directly, in person, by the physician or
any agent of the physician;
(3) the term ``constructive notice'' means notice
that is given by certified mail, return receipt
requested, restricted delivery to the last known
address of the person being notified, with delivery
deemed to have occurred 48 hours following noon on the
next day subsequent to mailing on which regular mail
delivery takes place, days on which mail is not
delivered excluded;
(4) the term a ``law requiring parental involvement
in a minor's abortion decision'' means 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;
(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;
(5) the term ``minor'' means an individual who is
not older than 18 years and who is not emancipated
under the law of the State in which the minor resides;
(6) 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;
as determined by State law;
(7) the term ``physician'' means a doctor of
medicine legally authorized to practice medicine by the
State in which such doctor practices medicine, or any
other person legally empowered under State law to
perform an abortion; and
(8) the term ``State'' includes the District of
Columbia and any commonwealth, possession, or other
territory of the United States, and any Indian tribe or
reservation.
Dissenting Views
H.R. 2299, the ``Child Interstate Abortion Notification
Act,'' (CIANA) imposes draconian criminal penalties on a vast
array of individuals--including the clergy, grandparents, and
health care professionals--arising from their involvement in
assisting a minor in obtaining an abortion. This measure is yet
another attack by the Majority against women's reproductive
freedom.\1\ For example, the House Judiciary Committee has, to
date, met on 12 occasions during this Congress to consider
various measures intended to restrict women's reproductive
freedom.\2\
---------------------------------------------------------------------------
\1\See, e.g., Jessica Valenti, Republicans Wage War on Women:
Latest Paternalistic Efforts
to Control Female Sexuality Are Part of a Long Pattern, Baltimore Sun,
Feb. 28, 2012, available at http://articles.baltimoresun.com/2012-02-
28/news/bs-ed-war-on-women-20120228_1_
democratic-women-republicans-contraception.
\2\No Taxpayer funding for Abortion Act: Hearing on H.R. 3 Before
the Subcomm. on the Const. of the H. Comm. on the Judiciary, 112th
Cong. (2011); Markup of H.R. 3, the No Taxpayer Funding for Abortion
Act, by the H. Comm. on the Judiciary, 112th Cong. (Mar. 3, 2011); The
State of Religious Liberty in the United States: Hearing Before the
Subcomm. on the Const. of the H. Comm. on the Judiciary, 112th Cong.
(2011); Susan B. Anthony and Frederick Douglass Prenatal
Nondiscrimination Act (PRENDA) of 2011: Hearing on H.R. 3541 Before the
Subcomm. on the Const. of the H. Comm. on the Judiciary, 112th Cong.
(2011); Markup of H.R. 3541, the Susan B. Anthony and Frederick
Douglass Prenatal Nondiscrimination Act of 2011 by the H. Comm. on the
Judiciary, 112th Cong. (Feb. 7, 8, 16, 2012); Child Interstate Abortion
Notification Act: Hearing on H.R. 2299 Before the Subcomm. on the
Const. of the H. Comm. on the Judiciary, 112th Cong. (2012)
[hereinafter CIANA Hearing]; Markup of H.R. 3803, the District of
Columbia Pain-Capable Unborn Child Protection Act, by the H. Comm. on
the Judiciary, 112th Cong. (July 18, 2012); Markup of H.R. 2299, the
Child Interstate Abortion Notification Act, by the H. Comm. on the
Judiciary, 112th Cong. (Mar. 27, 2012); The District of Columbia Pain-
Capable Unborn Child Protection Act: Hearing on H.R. 3803 Before the H.
Subcomm on the Const. of the H. Comm. on the Judiciary, 112th Cong.
(2012); The Obama Administration's Abuse of Power: Hearing Before the
H. Comm. on the Judiciary, 112th Cong. (2012).
---------------------------------------------------------------------------
While, in most instances, young women\3\ should and do turn
to their parents when facing difficult decisions regarding
their pregnancy, not all circumstances are ideal. In some
cases, it is impossible or even dangerous for a young woman to
involve her parents in that decision, or even to inform them of
the pregnancy. Where, for example, the parent, close relative,
or family friend may have caused the pregnancy, it may become
necessary for the young woman to turn to a sibling, a
grandparent, a clergyperson, or other trusted adult for
assistance and guidance. CIANA, however, would turn that
responsible adult into a criminal and thereby effectively force
this young woman to face one of the most difficult situations
in her life alone.
---------------------------------------------------------------------------
\3\H.R. 2299 defines a ``minor'' as ``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.'' H.R. 2299, 112th Cong.
Sec. 2 (2011).
---------------------------------------------------------------------------
CIANA also imposes criminal penalties on health care
professionals who fail to comply with the bill's unreasonable
notification requirements. Under the bill, health care
professionals would be forced to be knowledgeable of and to
comply with the laws of all 50 states, the District of
Columbia, Puerto Rico, territories, possessions, and Indian
tribes and reservations. Such professionals would also be
forced under CIANA to comply with a new Federal parental
notification requirement, which is unconstitutionally
restrictive. Health care professionals would be subject to
criminal sanction under the bill if they fail to comply with
these requirements. As a result, CIANA would criminalize the
otherwise lawful practice of medicine and dangerously undermine
the doctor-patient relationship.
Finally, CIANA violates fundamental principles of
federalism. The bill would effectively force a young woman to
carry the laws of her state on her back whenever she traveled
across state lines. And, it would impose laws enacted in one
state on the citizens of another state, even in those states
that have no comparable statutes and states that specifically
rejected such measures.
Not surprisingly, H.R. 2299 is opposed by the American
Academy of Pediatrics, the American Congress of Obstetricians
and Gynecologists, and the Society for Adolescent Health and
Medicine;\4\ the National Latina Institute for Reproductive
Health;\5\ Physicians for Reproductive Choice and Health;\6\
the National Partnership for Women and Families;\7\ the
Reproductive Health Technologies Project;\8\ the National
Abortion Federation;\9\ the American Civil Liberties Union;\10\
the Center for Reproductive Rights;\11\ a coalition of 26
women's health and civil liberties organizations;\12\ and a
coalition of 17 religious and faith based organizations and
communities.\13\
---------------------------------------------------------------------------
\4\CIANA Hearing (letter from the American Academy of Pediatrics,
the American Congress of Obstetricians and Gynecologists, & the Society
for Adolescent Health and Medicine to Rep. Trent Franks (R-AZ), Chair,
& Rep. Jerrold Nadler (D-NY), Ranking Member, Subcomm. on the Const. of
the H. Comm. on the Judiciary (Mar. 7, 2012)) (on file with the H.
Comm. on the Judiciary, Democratic staff).
\5\Id. at 104 (testimony of the National Latina Institute for
Reproductive Health).
\6\Id. at 145 (testimony of Michelle Forcier, Board Member,
Physicians for Reproductive Choice and Health).
\7\Id. at 140 (testimony of Debra Ness, President, & Andrea
Friedman, Director of Reproductive Health Programs, National
Partnership for Women and Families).
\8\Id. at 149 (testimony of Kirsten Moore, President & CEO,
Reproductive Health Technologies Project).
\9\Id. at 137 (testimony of the National Abortion Federation).
\10\Id. at 109 (testimony of Laura W. Murphy, Director, Washington
Legislative Office, et al. American Civil Liberties Union).
\11\Id. at 117 (testimony of the Center for Reproductive Rights).
\12\Id. at 134 (letter from Abortion Care Network, Advocates for
Youth, American Association of University Women, American Civil
Liberties Union, American Medical Student Association, Association of
Reproductive Health Professionals, Black Women's Health Imperative,
Break the Cycle, Center for Reproductive Rights, DC For Democracy,
JACPAC, National Abortion Federation, National Asian Pacific American
Women's Forum, National Council of Jewish Women, National Latina
Institute for Reproductive Health, National Family Planning &
Reproductive Health, National Network of Abortion Funds, National
Partnership for Women & Families, National Women's Health Network,
National Women's Law Center, National Organization for Women, NARAL
Pro-Choice America, People For the American Way, Physicians for
Reproductive Choice and Health, Planned Parenthood Federation of
America, and Population Connection to Rep. Trent Franks (R-AZ), Chair,
& Rep. Jerrold Nadler (D-NY), Ranking Member, Subcomm. on the Const. of
the H. Comm. on the Judiciary (Mar. 8, 2012).
\13\Letter from Anti-Defamation League, Catholics for Choice,
Concerned Clergy for Choice, Hadassah, Jewish Reconstructionist
Federation, Jewish Women International, Methodist Federation for Social
Action, National Council of Jewish Women, Presbyterian Voices for
Justice, Religious Coalition for Reproductive Choice, Religious
Institute, Spiritual Youth for Reproductive Freedom, Union for Reform
Judaism, Unitarian Universalist Association of Congregations, Unitarian
Universalist Women's Federation, Women's Alliance for Theology, Ethics
and Ritual, Women of Reform Judaism to Rep. Trent Franks (R-AZ), Chair,
& Rep. Jerrold Nadler (D-NY), Ranking Member, Subcomm. on the Const. of
the H. Comm. on the Judiciary (Mar. 27, 2012) (on file with the H.
Comm. on the Judiciary, Democratic staff).
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For these reasons, and those described below, we
respectfully dissent and we urge our colleagues to reject this
seriously flawed bill.
DESCRIPTION AND BACKGROUND
CIANA is old wine in a new bottle. Similar legislation has
been introduced in at least five prior Congresses under
Republican leadership.\14\ The bill provides both criminal
penalties for, and a civil cause of action against, a person
who takes an unemancipated minor across state or international
boundaries for the purpose of obtaining an abortion in
circumvention of the minor's home state's parental involvement
laws. It also imposes criminal penalties on, and provides for a
civil cause of action against, any physician who performs such
an abortion.
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\14\See, e.g., Child Interstate Abortion Notification Act, H.R.
748, 109th Cong. (2005); Child Custody Protection Act, S. 403, 109th
Cong. (2005); Child Custody Protection Act, H.R. 1755, 108th Cong.
(2003); Child Custody Protection Act, S. 851, 108th Cong. (2003); Child
Custody Protection Act, H.R. 476, 107th Cong. (2001); Child Custody
Protection Act, H.R. 1218, 106th Cong. (1999); Child Custody Protection
Act, S. 661, 106th Cong. (1999); Child Custody Protection Act, H.R.
3682, 105th Cong. (1998); Child Custody Protection Act, S. 1645, 105th
Cong. (1998).
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A summary of the principal substantive provisions of H.R.
2299 follows. The bill amends title 18 of the United States
Code to add two new chapters 117A and 117B. As added by the
bill, chapter 117A consists of sections 2431 and 2432.\15\ New
section 2431(a)(1), in turn, makes it a crime, punishable by a
fine or imprisonment of up to 1 year for anyone who ``knowingly
transports a minor across a State line, with the intent that
such minor 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
minor resides.'' The prohibition is triggered if ``an abortion
is performed or induced on the minor, in a State or a foreign
nation other than the State where the minor 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 minor
resides.'' Subsection 2431(a)(2) makes this prohibition
applicable to an individual who takes the minor across an
international boundary.
---------------------------------------------------------------------------
\15\For reasons that are not entirely clear, both sections 2331 and
2332 are entitled ``Transportation of minors in circumvention of
certain laws relating to abortion.''
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Section 2431(b) specifies an unconstitutionally narrow
exception to the bill's prohibition. The exception applies only
``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.''
Section 2431(c) sets forth two affirmative defenses. It
provides that it is an affirmative defense to a prosecution for
an offense, or to a civil action, based on a violation of new
section 2431, if the defendant:
(1) reasonably believed, based on information the
defendant obtained directly from a parent of the minor,
that before the minor obtained the abortion, the
parental consent or notification 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 minor
resides; or
(2) was presented with documentation showing with a
reasonable degree of certainty that a court in the
minor's State of residence waived any parental
notification required by the laws of that State, or
otherwise authorized that the minor be allowed to
procure an abortion.
Section 2431(d) provides a cause of action to a parent
``who suffers harm from a violation'' of section 2431(a),
unless the parent committed an act of incest with the minor.
Section 2431(e) sets forth various definitions.
New section 2432 specifies that an individual who has had
incest with a minor and transports that minor across state
lines with the intention that the minor obtain an abortion
would be subject to a fine or imprisonment of not more than 1
year.
New chapter 117B, as added to title 18 of the United States
Code, consists solely of section 2435, which does not impose
any legal duties or penalties on the minor. Rather, the focus
of this provision is on the health care profession.
Section 2435(a) mandates that a physician give 24 hours
``actual notice'' to a parent before performing an abortion on
a minor who is from out-of-state. This provision applies even
if the minor came from a state that does not have a parental
consent or notification law. Note that section 2435(d)(2)
defines ``actual notice'' as ``the giving of a written notice
directly, in person.'' Section 2435(a)(2), in turn, authorizes
the physician to give at least 24 hours ``constructive notice''
to the patient's parents if it is not possible to provide them
with ``actual notice'' after the abortion provider has made a
reasonable effort to do so. Although section 2435(d)(3) defines
``constructive notice'' as ``notice that is given by certified
mail, return receipt requested, restricted delivery to the last
known address of the person being notified,'' the bill fails to
define ``reasonable effort.''
Section 2435(b) specifies five exceptions to section
2435(a):
(1) the abortion is performed or induced in a State
that has, in force, a law requiring parental
involvement in a minor's abortion decision and the
physician complies with the requirements of that law;
(2) the physician is presented with documentation
showing with a reasonable degree of certainty that a
court in the minor's State of residence has waived any
parental notification required by the laws of that
State, or has otherwise authorized that the minor be
allowed to procure an abortion;
(3) the minor declares in a signed written statement
that she is the victim of sexual abuse, neglect, or
physical abuse by a parent, and, before an abortion is
performed on the minor, the physician notifies the
authorities specified to receive reports of child abuse
or neglect by the law of the State in which the minor
resides of the known or suspected abuse or neglect;
(4) the abortion is 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, but an
exception under this paragraph does not apply unless
the attending physician or an agent of such physician,
within 24 hours after completion of the abortion,
notifies a parent in writing that an abortion was
performed on the minor and of the circumstances that
warranted invocation of this paragraph; or
(5) the minor is physically accompanied by a person who
presents the physician or his agent with documentation
showing with a reasonable degree of certainty that he
or she is in fact the parent of that minor.
It should be noted that the bill fails to include any exception
for an instance where the parent cannot be located or where it
is otherwise impossible to provide timely written notice. The
bill's exception for a minor accompanied by an individual who
``presents the physician or his agent with documentation
showing with a reasonable degree of certainty that he or she is
in fact the parent of that minor,'' fails to specify what would
qualify as sufficient documentation. Also, the narrowness of
the exception for the minor's medical condition would prohibit
a physician from performing an abortion where the minor is from
out of state and the minor has a non-life threatening medical
emergency.
Section 2435's requirements, as set forth in subsection
(a), and limited exceptions, as set forth in subsection (b),
create some very convoluted requirements for physicians and
their patients. If a minor from a state with no parental
consent or notice laws traveled to a state also with no
parental consent or notification laws, the bill requires the
physician to provide ``actual notice'' directly in person to
the patient's parents without the minor having the option of a
judicial bypass. The bill's failure to provide for this option
directly violates prior Supreme Court rulings.\16\ Also, in
order for the exceptions to apply in cases where the minor is
the victim of sexual abuse, the doctor must report any sexual
abuse to the proper authorities where the minor resides. This
exception only comes into play if one of the abusers was a
parent pursuant to section 2435(b)(3). H.R. 2299, however,
fails to define the term ``proper authorities.''
---------------------------------------------------------------------------
\16\Bellotti v. Baird, 443 U.S. 622, 643-44 (1979).
---------------------------------------------------------------------------
Other problems presented by the provisions include the
following. If a minor from a state with a strict parental
consent or notification law went to another state with a strict
parental consent or notice law, the minor is required to abide
by her own state law in order for an adult to transport her
across state lines. H.R. 2299 requires the physician to comply
with the laws of the state in which her practice is located as
well. Minors who live in very rural states may find that cities
in adjoining states are closer than cities in other states.
Additionally, the minor's own jurisdiction may not have a
provider of abortion services.
If a minor who comes from a state with a strict parental
consent or notification law seeks an abortion in a state with
no parental consent or notice law, then the minor must still
abide by her state law in order for an adult to transport her
across state lines. And, the physician must provide ``actual
notice'' to the patient's parents. As a result, a physician
would be required to know: (1) the requirements of this
legislation; (2) the laws of all 50 states, the District of
Columbia, Puerto Rico, territories, possessions, Indian tribes
and reservations concerning parental consent or notice; and (3)
the place of residence of the minor in order for her to comply
with this bill.
Section 2435(c) authorizes a parent who ``suffers harm''
from a violation of section 2435(a) to file a civil action
unless the parent had committed an act of incest with the
minor. And, section 2435(d) sets forth various definitions.
CONCERNS WITH H.R. 2299
I. H.R. 2299 ENDANGERS THE HEALTH AND SAFETY OF YOUNG WOMEN
Every young woman should be able to turn to her parents
when faced with a pregnancy and receive the counsel and support
she needs. Fortunately, that occurs in the overwhelming
majority of cases, and this bill would be inapplicable under
such circumstances.
Unfortunately, there are many reasons why some pregnant
young women cannot turn to their parents for support and
guidance. CIANA simply ignores this very real fact and fails to
take into account those instances where a minor may need
immediate treatment or where the minor's parents themselves
pose a direct threat to the young woman.
A major flaw of CIANA is that it would render responsible
adults--including well-intentioned siblings, grandparents, and
members of the clergy--subject to criminal prosecution and
civil suit. The bill would make it impossible for a pregnant
minor to seek the assistance of any other adult no matter what
the situation is at home.
We attempted to address this serious defect of the bill by
offering amendments to exempt persons to whom a young woman
might turn for assistance in a difficult situation. For
example, Rep. Jerrold Nadler (D-NY) offered an amendment to
exempt a grandparent or adult sibling of the minor unless the
grandparent or adult sibling had sexual contact with the minor.
Rep. Robert C. ``Bobby'' Scott (D-VA) offered an amendment that
would have exempted taxicab drivers, bus drivers, or other
persons in the business of professional transport who might
unwittingly be subject to this legislation, unless that person
had sexual conduct with the minor or is a registered sex
offender. Rep. Scott also offered an amendment that would have
added siblings to the minor and the parents of the minor as
persons who could not be sued or prosecuted under the bill.
Rep. Sheila Jackson Lee (D-TX) offered an amendment creating an
exception for clergy, godparents, aunts, uncles, or first
cousins of the minor unless that person had sexual contact with
the minor. Each of these amendments was rejected.
Another equally serious flaw of CIANA is that it ignores
the kinds of problems young people face. An estimated 772,000
children were found to be victims of abuse or neglect in
2008.\17\ Young women considering abortion are particularly
vulnerable because family violence is often at its worst during
a family member's pregnancy.\18\
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\17\U.S. Department of Health and Human Services, Administration of
Children, Youth and Families, Children's Bureau, Child Maltreatment
2008 (2010).
\18\See, e.g., H. Amaro et al., Violence During Pregnancy and
Substance Abuse, 80 Am. J. of Pub. Health 575-579 (1990); University of
Pittsburgh Medical Center, Information for Patients, Abuse During
Pregnancy, ED/JAW Rev. (Mar. 2003).
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Nearly half of pregnant teens who have a history of abuse
report being assaulted during their pregnancy, most often by a
family member.\19\ For example, at the hearing on this
legislation, The Very Reverend Dr. Katherine Hancock Ragsdale
discussed some of these problems that young women face.\20\ She
movingly described a 15-year-old who had been made pregnant
during a date rape and sought to obtain an abortion on her own
because she feared violence if her father found out about the
pregnancy.
---------------------------------------------------------------------------
\19\American Psychological Association, Parental Consent Laws for
Adolescent Reproductive Health Care: What Does the Psychological
Research Say? (Feb. 2000), citing A.B. Berenson, et al., Prevalence of
Physical and Sexual Assault in Pregnant Adolescents, 13 J. of
Adolescent Health 466-69 (1992).
\20\CIANA Hearing at 43 (testimony of the Very Reverend Kathleen
Ragsdale).
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Among minors who did not tell a parent of their abortion,
30 percent had experienced violence in their family or feared
violence or being forced to leave home.\21\ As one young woman
explained, ``[m]y older sister got pregnant when she was
seventeen. My mother pushed her against the wall, slapped her
across the face and then grabbed her by the hair, pulled her
through the living room out the front door and threw her off
the porch. We don't know where she is now.''\22\ In Idaho, a
13-year-old student named Spring Adams was shot to death by her
father after he learned she was to terminate a pregnancy caused
by his acts of incest.\23\
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\21\Martin Donohoe, Parental Notification and Consent Laws for Teen
Abortions: Overview and 2006 Ballot Measures MEDSCAPE Ob/Gyn & Women's
Health, Feb. 9, 2007, available at http://www.medscape.com/viewarticle/
549316 (last visited Oct. 20, 2010); Stanley K. Henshaw & Kathryn Kost,
Parental Involvement in Minors' Abortion Decisions, 24 Family Planning
Perspectives 197, 199-200 (1992).
\22\Helena Silverstein, Girls on the Stand: How Courts Fail
Pregnant Minors (2007) (quoting Melissa Jacobs). Are Courts Prepared to
Handle Judicial Bypass Proceedings? 32 Human Rights 4 (Winter 2005).
\23\Margie Boule, An American Tragedy, Sunday Oregonian, Aug. 27,
1989.
---------------------------------------------------------------------------
As the Supreme Court has recognized, ``[m]ere notification
of pregnancy is frequently a flashpoint for battering and
violence within the family. The number of battering incidents
is high during the pregnancy and often the worst abuse can be
associated with pregnancy.''\24\
---------------------------------------------------------------------------
\24\Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 889 (1992) (citing expert witness testimony).
---------------------------------------------------------------------------
To address this very real danger, Rep. Hank Johnson (D-GA)
offered an amendment that would have created an exception to
the bill if the disclosure of the pregnancy or the decision to
terminate the pregnancy to one or both of the minor's parents
would endanger the physical safety of the minor. Similarly,
Rep. Jackson Lee offered an amendment that would have created
an exception where the pregnancy was the result of sexual
contact with a parent or any other person who has permanent or
temporary care or custody or responsibility for the supervision
of the minor, or by any household or family member. Both
amendments were rejected.
II. H.R. 2299 IS UNCONSTITUTIONAL
A. LH.R. 2299 Lacks an Adequate Exception To Protect the Life of a
Young Woman and Fails To Include Any Exception To Protect Her
Health
H.R. 2299 has an unconstitutionally narrow exception to
protect the life of the woman, and no health exception. These
exceptions are especially important in light of the tremendous
uncertainty and onerous civil and criminal penalties
responsible adults and health care providers would face under
the bill. In particular, the delay that the bill's notice
requirements would impose under section 2432 could be fatal or
dangerous to a young woman's health and future fertility.
The narrowness of the ``life'' exception in both sections--
applying only ``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''--would also place health care providers
in an impossible position. Just how severe must a physical
threat to a woman's health be before a physician could feel
confident that a life exception may be invoked? How much could
a court second-guess a medical decision of this type in a
future court proceeding? What would be the cost of defending
such a case even if a physician ultimately prevailed in a civil
or criminal case, or both?
As the Supreme Court has long-recognized, laws containing
life exceptions cannot pick and choose among life-threatening
circumstances.\25\ The Court requires any restriction on
abortion to include an exception ``where it is necessary, in
appropriate medical judgment, for the preservation of the life
or the health of the mother.''\26\ In Ayotte v. Planned
Parenthood of Northern New England, the Court expressly
reiterated its prior holdings in Roe and Casey that a state may
not restrict access to an abortion that is necessary to
preserve the life or health of the pregnant woman.\27\ The
Court also stated the factual proposition that in a small
number of cases a pregnant minor requires an immediate abortion
to prevent serious health consequences, something proponents of
this legislation still incorrectly assert is not the case.\28\
Therefore, a state statute that restricts a pregnant minor's
access to an abortion must include an exception for medical
emergencies involving the minor's health or life.
---------------------------------------------------------------------------
\25\Casey, 505 U.S. at 879.
\26\Id.
\27\126 S. Ct. 961, 967 (2006). In Doe v. Bolton, 410 U.S. 179
(1973), the Court held that, to determine whether an abortion is
necessary to protect a woman's ``health,'' a doctor may exercise his or
her judgment based on various factors, such as a woman's physical,
emotional, psychological, and familial well-being, as well as her age.
\28\Ayotte, 126 S. Ct. at 967 (``New Hampshire has not taken real
issue with the factual basis of this litigation: In some very small
percentage of cases, pregnant minors, like adult women, need immediate
abortions to avert serious and often irreversible damage to their
health.'').
---------------------------------------------------------------------------
In recognition of the fact that CIANA fails to include any
health exception whatsoever in clear violation of Supreme Court
precedent,\29\ Rep. Judy Chu (D-CA) offered an amendment that
would have expanded the exception to save the life of the young
woman to include protecting her health as required by the
Constitution. Rep. Melvin Watt (D-NC) offered an amendment that
would have created an exception for a person who has a good
faith belief that the minor's life or health would be
endangered by the delay necessary to comply with the law
requiring parental involvement in a minor's abortion decision
in the state where the minor resides, including any proceedings
in state court. Rep. Watt also offered an amendment to create
an exception to protect the life and health of the minor. Rep.
Mike Quigley (D-IL) offered an amendment to create an exception
of the minor's pregnancy was the result of rape or incest. All
of these amendments were rejected.
---------------------------------------------------------------------------
\29\Roe v. Wade, 410 U.S. 113, 164-65 (1973) (holding that a state
may regulate or proscribe post-viability abortions with the exception
where it is necessary for the preservation of the life or health of the
woman).
---------------------------------------------------------------------------
B. LH.R. 2299 Fails To Include the Constitutionally-Mandated Judicial
Bypass for Parental Notification and Consent Laws
The Supreme Court has held that a state may not impose a
blanket parental-consent requirement that would empower a
parent to veto a young woman's decision to have an
abortion.\30\ If a state requires a minor to obtain consent
from one or both of the minor's parents, it must also give her
the opportunity to bypass that mandate by seeking a judicial
determination that she is either sufficiently mature to make
her own decision or that, even if she is ``immature,'' the
proposed abortion is in her ``best interests.''\31\ As the
Supreme Court has recognized, ``Any independent interest the
parent may have in the termination of the minor daughter's
pregnancy is no more weighty than the right of privacy of the
competent minor mature enough to become pregnant.''\32\
Consistent with this holding, the courts have made it clear
that reasonable alternatives to parental consent are necessary
for these laws to pass constitutional scrutiny.
---------------------------------------------------------------------------
\30\Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976).
\31\Bellotti, 443 U.S. at 643-44.
\32\Danforth, 428 U.S. at 75.
---------------------------------------------------------------------------
The Court has also invalidated state parental consent laws
that do not include judicial bypass procedures. In Ohio v.
Akron Center for Reproductive Health, the Court, in holding
that the Ohio parental notification statute at issue was
constitutional, appeared to suggest that the statute's judicial
bypass procedure adequately protected a pregnant minor's right
to obtain an abortion.\33\ The Court expressly declined,
however, to decide whether a state parental notification law
that did not include a judicial bypass procedure would per se
violate the Constitution. In Lambert v. Wicklund, the Court
similarly declined to reach the question of whether a state
parental notification law must contain a judicial bypass
procedure.\34\ Rather, the Court held narrowly that the Montana
parental notification law at issue, which contained a judicial
bypass procedure, did not place an undue burden on a pregnant
minor's right to obtain an abortion.\35\
---------------------------------------------------------------------------
\33\497 U.S. 502 (1990).
\34\520 U.S. 292 (1997).
\35\Id. at 295.
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A parental notification law would be unconstitutional if it
did not provide a pregnant minor with some alternative to
parental notification. In H.L. v. Matheson, the Court upheld as
constitutional a state statute that requires an unemancipated
minor who lives with her parents to notify them, ``if
possible,'' before she obtains an abortion, but includes
exceptions for a minor who demonstrates that notification is
not in her best interests.\36\ Moreover, in Belotti v. Baird,
the Court indicated that a parental notification law would be
unconstitutional if it did not provide an alternative to
notification for a ``mature'' minor or when notification would
not be in a minor's best interests.\37\ In that case, the Court
observed:
---------------------------------------------------------------------------
\36\450 U.S. 398 (1981).
\37\Belotti v. Baird, 443 U.S. 622 (1979).
[U]nder state regulation such as that undertaken by
Massachusetts, every minor must have the opportunity--
if she so desires--to go directly to a court without
first consulting or notifying her parents. If she
satisfies the court that she is mature and well enough
informed to make intelligently the abortion decision on
her own, the court must authorize her to act without
parental consultation or consent.\38\
---------------------------------------------------------------------------
\38\Id. at 647.
The Court has yet to establish specific parameters for the
adequacy of judicial bypass procedures in the context of state
parental involvement laws. In writing for the majority in
Akron, Justice Kennedy rejected the dissenting opinion's call
to articulate specific procedural thresholds for the
constitutionality of a judicial bypass alternative, such as
whether it must be anonymous or only confidential, or how
quickly a state must provide a pregnant minor with the
opportunity for a court proceeding. He stated only that the
Ohio judicial bypass procedure contained ``reasonable steps''
to protect the identity of pregnant minors seeking a judicial
bypass and that the procedure included adequate provisions to
expedite a pregnant minor's request for a proceeding.\39\ The
Court's majority also held that a state may validly require a
pregnant minor to establish ``by clear and convincing
evidence'' during a judicial bypass hearing that she is mature
enough to make an abortion decision without parental
involvement.\40\
---------------------------------------------------------------------------
\39\Akron, 497 U.S. at 513.
\40\Id. at 515.
---------------------------------------------------------------------------
To address this defect, Rep. Nadler offered an amendment
that would have allowed an adult who had a reasonable belief
that compliance with the judicial bypass procedure of the
minor's state of residence would either compromise the minor's
intent to maintain confidentiality with respect to the choice
to terminate the pregnancy, or would be futile or ineffective
in the minor's home state, could apply to a Federal district
court in the district in which the minor resides for a waiver
of the application of the Act. The amendment was rejected.
C. LH.R. 2299 Imposes an Unconstitutional Undue Burden on a Young
Woman's Right To Obtain an Abortion
The Supreme Court has ruled that the constitutional right
to privacy includes a minor's decision to terminate her
pregnancy.\41\ In addition, the Court has held that any
restriction that has the purpose or effect of placing an
``undue burden'' on a woman's right to choose to have an
abortion prior to viability is unconstitutional.\42\ H.R. 2299
is in conflict with this longstanding precedent.
---------------------------------------------------------------------------
\41\Danforth, 428 U.S. at 74.
\42\Casey, 505 U.S. at 874.
---------------------------------------------------------------------------
The bill's Federal parental notification provision--which
is imposed where neither the state in which the procedure is
performed nor the young woman's home state have their own
parental notification schemes--does not include any judicial
bypass.\43\ Accordingly, the young woman will not be able to
obtain an abortion until the physician provides notice of the
abortion to one of her parents.\44\ CIANA's Federal
notification provision thus makes parental notification
mandatory for these young women with absolutely no option for a
court bypass. As a result, this provision directly violates the
Supreme Court's holdings that a statute requiring parental
involvement, in order to be constitutional, must offer an
alternative such as a judicial bypass.\45\
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\43\The following states do not have enforceable parental
involvement laws and would likely be subject to CIANA's Federal
notification provisions: Alaska, California, Connecticut, Florida,
Hawaii, Idaho, Illinois, Montana, Nevada, New Hampshire, New Jersey,
New Mexico, New York, Oklahoma, Oregon, Vermont, Washington, and the
District of Columbia. NARAL Pro-Choice America Foundation, Who Decides?
The Status of Women's Reproductive Rights in the United States (21th
ed. 2012), available at www.WhoDecides.org.
\44\The bill provides two exceptions: the narrow exception to
preserve the life, but not the health of the young woman; and the
exception for a young woman who ``declares in a signed written
statement that she is the victim of sexual abuse, neglect, or physical
abuse by a parent, and, before an abortion in performed on the minor,
the physician notifies the authorities specified to receive reports of
child abuse or neglect by the law of the State in which the minor
resides of the known or suspected abuse or neglect.'' H.R. 2299, 112th
Cong. Sec. 2435(a)(4)-(5) (2011) (emphasis added).
\45\Hodgson v. Minnesota, 497 U.S. 417, 420 (1990); Akron 497 U.S.
at 510.
---------------------------------------------------------------------------
Moreover, the requirement that the doctor must provide 24
hours actual notice, or at least 48 hours of constructive
notice to the parents of the minor before providing the
abortion care, would also impose an undue burden on a woman's
right to choose.\46\ In contrast, the Supreme Court in Casey
upheld a 24-hour delay precisely because there was an exception
for the preservation of the life and health of the woman.\47\
---------------------------------------------------------------------------
\46\Id.
\47\Casey, 505 U.S. at 886.
---------------------------------------------------------------------------
Without these exceptions, CIANA's Federal notification
provision would likely be held unconstitutional because these
delays will place a woman's health at risk and impose an
``undue burden'' on a woman's right to choose.
III. H.R. 2299 VIOLATES FUNDAMENTAL PRINCIPLES OF FEDERALISM
H.R. 2299 would require young women to carry their own
state laws with them when they travel to other states.\48\ As
Professors Laurence Tribe of Harvard Law School and Peter Rubin
of Georgetown University Law Center have explained, the
predecessor version of this legislation ``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.''\49\
---------------------------------------------------------------------------
\48\Memorandum from Professors Laurence H. Tribe, Harvard
University School of Law, & Peter J. Rubin, Georgetown University Law
Center, to the H. Comm. on the Judiciary, at 2 (Sept. 2, 2001) (on file
with the H. Comm. on the Judiciary, Democratic staff).
\49\Id.
---------------------------------------------------------------------------
It would, moreover, impose on the people of one state who
have specifically considered and rejected parental notification
laws, the laws of another state requiring such notification. It
would nullify the right of a state, within its own borders, to
set its own policies in this very difficult area.
To address this defect, Rep. Scott offered an amendment
creating an exception if neither the minor's state of
residence, nor the state in which the abortion is performed,
have a parental notification law in effect. The amendment was
rejected.
This bill would also treat a young woman who travels to a
state, or who resides in a state temporarily (such as a college
student), differently than a minor living in that state. For
example, New York does not have a parental notification or
consent law. Nevertheless, a young woman who travels into New
York, or who temporarily resides in New York, would be subject
under H.R. 2299 to an entirely different legal scheme. She
would either have to obtain a court bypass from her home state
or, if no bypass is available, be subject to the bill's Federal
mandatory notice requirements. CIANA would thus discriminate
against young women within the same state on the basis of their
state of origin and would deprive them of their right to travel
to engage in conduct legal in another state in violation of
constitutionally protected rights to equal protection and
interstate travel.
CONCLUSION
Without question, promoting the involvement of parents in
decisions concerning the pregnancy of a minor is a laudable and
desirable goal. H.R. 2299, however, ignores the real
circumstances that often affect young pregnant women and, by
doing so, places these women at mortal risk. These young people
must not be forced to risk their lives and health if they seek
the protection of responsible adults in those circumstances
where their parents have or will precipitate a dangerous
situation for their child. This bill violates these basic
principles of humanity and regard for human dimension of these
problems. It also violates the Constitution in significant
respects and tramples upon fundamental principles of
federalism.
For these reasons, we respectfully dissent, and we urge our
colleagues to oppose this seriously flawed and unconstitutional
legislation.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Mike Quigley.
Judy Chu.
Ted Deutch.
Linda T. Sanchez.
Jared Polis.