SPEAKERS CONTENTS INSERTS
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58–271
1999
CHILD CUSTODY PROTECTION ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.R. 3682
MAY 21, 1998
Serial No. 102
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
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LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
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BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
May 21, 1998
TEXT OF BILL
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H.R. 3682
OPENING STATEMENT
Canady, Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Collett, Prof. Teresa Stanton, Professor of Law, South Texas College of Law
Farley, Joyce, Dushore, PA
Graci, Robert A., Assistant Deputy Attorney General of Pennsylvania
Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas
Lowey, Hon. Nita, a Representative in Congress from the State of New York
Oberstar, Hon. James L., a Representative in Congress from the State of Minnesota
Presser, Prof. Stephen, Raoul Berger Professor of Legal History, Northwestern University School of Law
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Roberts, Eileen, Mothers Against Minors' Abortion (MAMA)
Ros-Lehitnen, Hon. Ileana, a Representative in Congress from the State of Florida
Smith, Hon. Christopher H., a Representative in Congress from the State of New Jersey
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Canady, Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution: Prepared statement
Collett, Prof. Teresa Stanton, Professor of Law, South Texas College of Law: Prepared statement
Farley, Joyce, Dushore, PA: Prepared statement
Graci, Robert A., Assistant Deputy Attorney General of Pennsylvania: Prepared statement
Lowey, Hon. Nita, a Representative in Congress from the State of New York: Prepared statement
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Oberstar, Hon. James L., a Representative in Congress from the State of Minnesota: Prepared statement
Presser, Prof. Stephen, Raoul Berger Professor of Legal History, Northwestern University School of Law: Prepared statement
Roberts, Eileen, Mothers Against Minors' Abortion (MAMA): Prepared statement
Ros-Lehitnen, Hon. Ileana, a Representative in Congress from the State of Florida: Prepared statement
CHILD CUSTODY PROTECTION ACT
THURSDAY, MAY 21, 1998
House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2226, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Bob Inglis, Ed Bryant, Bob Goodlatte, Asa Hutchinson, Robert C. Scott and Jerrold Nadler.
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Staff Present: John Ladd, Acting Chief Counsel; Cathleen Cleaver, Counsel; Robert Corry, Counsel; Michael Connelly, Staff Assistant; Brian Woolfolk, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
This morning the Subcommittee on the Constitution convenes to hear testimony concerning H.R. 3682, the Child Custody Protection Act.
[The bill, H.R. 3682, follows:]
105TH CONGRESS
2D SESSION
H.R. 3682
To amend title 18, United States Code, to prohibit taking minors across
State lines to avoid laws requiring the involvement of parents in abortion
decisions.
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IN THE HOUSE OF REPRESENTATIVES
APRIL 1, 1998
Ms. ROS-LEHTINEN (for herself, Mr. BARCIA of Michigan, Mr. GINGRICH, Mr. ARMEY, Mr. DELAY, Mr. BOEHNER, Mr. HASTERT, Mr. DIAZ-BALART, Mr. CANADY of Florida, Mr. GOSS, Mr. STEARNS, Mr. MCCOLLUM, Mr. MICA, Mr. YOUNG of Florida, Mr. WELDON of Florida, Mr. GOODE, Mr. HALL of Texas, Mr. HEFNER, Mr. JOHN, Mr. MINGE, Mr. OBERSTAR, Mr. PETERSON of Minnesota, Mr. RAHALL, Mr. STENHOLM, Mr. BACHUS, Mr. BARR of Georgia, Mr. BARRETT of Nebraska, Mr. BARTLETT of Maryland, Mr. BATEMAN, Mr. BLILEY, Mr. BLUNT, Mr. BRYANT, Mr. BUNNING of Kentucky, Mr. BURR of North Carolina, Mr. BURTON of Indiana, Mr. CALVERT, Mr. CAMP, Mr. CANNON, Mr. CHABOT, Mr. CHAMBLISS, Mr. CHRISTENSEN, Mr. COBLE, Mr. COBURN, Mr. CRANE, Mr. CUNNINGHAM, Mr. DAVIS of Virginia, Mr. DICKEY, Mr. DOOLITTLE, Mr. DUNCAN, Mr. EHLERS, Mrs. EMERSON, Mr. ENSIGN, Mr. GOODLATTE, Mr. GOODLING, Mr. GUTKNECHT, Mr. HOEKSTRA, Mr. HOSTETTLER, Mr. HUNTER, Mr. HYDE, Mr. INGLIS of South Carolina, Mr. ISTOOK, Mr. KING of New York, Mr. KINGSTON, Mr. KNOLLENBERG, Mr. LAHOOD, Mr. LARGENT, Mr. LATHAM, Mr. LEWIS of Kentucky, Mr. LINDER, Mr. LIVINGSTON, Mr. MCCRERY, Mr. MCDADE, Mr. MCINTOSH, Mr. MCKEON, Mr. MANZULLO, Mr. METCALF, Mrs. MYRICK, Mr. NEY, Mr. NORWOOD, Mr. PAPPAS, Mr. PETERSON of Pennsylvania, Mr. PITTS, Mr. PORTMAN, Mr. QUINN, Mr. RYUN, Mr. DAN SCHAEFER of Colorado, Mr. SENSENBRENNER, Mr. SESSIONS, Mr. SHADEGG, Mr. SMITH of New Jersey, Mrs. LINDA SMITH of Washington, Mr. SNOWBARGER, Mr. SOLOMON, Mr. SOUDER, Mr. TALENT, Mr. TIAHRT, Mr. THUNE, Mr. WALSH, Mr. WATTS of Oklahoma, and Mr. WHITFIELD) introduced the following bill; which was referred to the Committee on the Judiciary
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A BILL
To amend title 18, United States Code, to prohibit taking minors across State lines to avoid laws requiring the involvement of parents in abortion decisions.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Child Custody Protection Act'.
SEC. 2. TRANSPORTATION OF MINORS TO AVOID CERTAIN LAWS RELATING TO ABORTION.
(a) IN GENERAL.—Title 18, United States Code, is amended by inserting after chapter 117 the following:
''CHAPTER 117A—TRANSPORTATION OF MINORS TO AVOID CERTAIN LAWS RELATING TO ABORTION
''Sec.
''2401. Transportation of minors to avoid certain laws relating to abortion.
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''2401. Transportation of minors to avoid certain laws relating to abortion
''(a) OFFENSE.—Except as provided in subsection (b), whoever knowingly transports an individual who has not attained the age of 18 years across a State line, with the intent such individual obtain an abortion, if in fact the requirements of a law, requiring parental involvement in a minor's abortion decision, in the State where the individual resides, are not met before the individual obtains the abortion, shall be fined under this title or imprisoned not more than one year, or both.
''(b) EXCEPTION.—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.
''(c) CIVIL ACTION.—Any parent or guardian who suffers legal harm from a violation of subsection (a) may obtain appropriate relief in a civil action.
''(d) DEFINITIONS.—For the purposes of this section—
''(1) a law requiring parental involvement in a minor's abortion decision is a law—
''(A) requiring, before an abortion is performed on a minor, either—
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''(i) the notification to, or consent of, a parent or guardian of that minor; or
''(ii) proceedings in a State court; and
''(B) that does not provide as an alternative to the requirements described in subparagraph (A) notification to or consent of any person or entity who is not described in that subparagraph;
''(2) the term 'minor' means an individual who is not older than the maximum age requiring parental notification or consent, or proceedings in a State court, under the law requiring parental involvement in a minor's abortion decision; and
''(3) the term 'State' includes the District of Columbia and any commonwealth, possession, or other territory of the United States.''.
(b) CLERICAL AMENDMENT.—The table of chapters for part I of title 18, United States Code, is amended by inserting after the item relating to chapter 117 the following new item:
''117A. Transportation of minors to avoid certain laws relating to abortion.......2401.''.
Mr. CANADY. The Child Custody Protection Act is designed to address the problem of people transporting minor girls across State lines to circumvent parental notification and consent laws.
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Currently over 20 States have laws that require the consent or notification of at least one parent or a court authorization before a minor can obtain an abortion. Yet despite court approval of and overwhelming public support for these laws, vulnerable children are taken from their families to out-of-State abortion clinics in flagrant disregard of the legal protections the States have provided.
Across the country a child can't even get an aspirin at school without her parents' permission, and many States have decided that a serious surgical procedure like abortions should also involve the child's parents or a judge. When parents are not involved, the risk to a child's health significantly increases. For instance, only parents have knowledge of their daughter's prior medical and psychological history and would, for instance, be able to alert the abortionist of allergies to medication and provide authorization for the release of pertinent data from family physicians. When a pregnant girl is taken across State lines by a stranger for an abortion, none of these precautions can be taken. The Child Custody Protection Act will simply ensure the effectiveness of State laws designed to provide a layer of protection against these dangers to children's health and safety.
Abortion activists say taking girls out of State is the only option when the girls are afraid to tell their parents about their pregnancy, but this ignores the judicial bypass option that is available for just this type of situation. And abortion activists also like to claim that it is simply a loving aunt or grandmother who takes the girl for the secret out-of-State abortion, when their own study conducted in 1992 by the Allen Guttmacher Institute shows that in a majority of cases it is not a family member who accompanies the girl for an abortion without the knowledge of her parents.
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I believe that it is entirely appropriate for Congress, with this constitutional authority to regulate interstate commerce to curb this outrageous circumvention of State laws.
[The prepared statement of Mr. Canady follows:]
PREPARED STATEMENT OF CHARLES T. CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
This morning the Subcommittee on the Constitution convenes to hear testimony from parents and legal experts concerning H.R. 3682: The Child Custody Protection Act.
The Child Custody Protection Act is designed to address the problem of people transporting minor girls across state lines to circumvent parental notification and consent laws.
Currently, over twenty states have laws that require the consent or notification of at least one parent, or court authorization, before a minor can obtain an abortion. Yet despite court approval of and overwhelming public support for these laws, vulnerable children are taken from their families to out-of-state abortion clinics in flagrant disregard for the legal protections the states have provided.
Across the country, a child can't even be given an aspirin at school without her parent's permission. And many states have decided that a serious surgical procedure like abortion should also involve the child's parents, or a judge. When parents are not involved, the risks to the child's health significantly increases. For instance, only parents have knowledge of their daughter's prior medical and psychological history, and would, for instance, be able to alert the abortionist of allergies to medication and provide authorization for the release of pertinent data from family physicians. When a pregnant girl is taken across state lines by a stranger for an abortion, none of these precautions can be taken. The Child Custody Protection Act will simply ensure the effectiveness of state laws designed to provide a layer of protection against these dangers to children's health and safety.
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Abortion activists say taking girls out of state is the only option when the girls are afraid to tell their parents about their pregnancy, but this ignores the judicial bypass option that is available for just this type of situation.
And abortion activists also like to claim that it is simply a loving aunt or grandmother who takes the girl for the secret out-of-state abortion, when their own study—conducted in 1992 by the Alan Guttmacher Institute—shows that in a majority of cases it is not a family member who accompanies the girl for an abortion without the knowledge of her parents.
It is entirely appropriate for Congress, with its constitutional authority to regulate interstate commerce, to curb this circumvention of state laws.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the opportunity to participate in this hearing to discuss H.R. 3682, the Child Custody Protection Act. The bill purports to protect children by prosecuting those who might accompany them when they travel across State lines to get abortion if they are not in compliance with their home State's parental consent or notification laws.
This bill unfortunately may have the unintended consequence of actually endangering children much more than it will protect them. It will have the cruel practical effect of encouraging young girls to risk their lives traveling alone cross State lines to obtain very serious surgical procedures despite the fact that it is in their best medical interests to have someone accompany them. So unfortunately we may be jeopardizing the well-being of women by attempting to pass this bill that will have the effect of making it more dangerous to obtain a legal abortion.
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The overwhelming majority of minors seeking abortions consult their parents before they undergo the procedure. Even in States that have no mandatory parental consent or notice requirements, more than 75 percent of minors under the age of 16 involve one or more of their parents, which is not much different from the percentages of minors who consult their parents in States with a parental consent law, but no new big government mandates to make minors talk to their parents more than they already do.
More than half of all minors not involving their parents in abortion decisions did involve an adult, including 15 percent who involved a stepparent or adult relative. These are the very same people that we will make criminals if this law is enacted in the same manner as it will be isolated because of this bill. The compassionate older sibling or grandparent who insists on accompanying a minor in order to assure their safety is the one who will be sent to jail if this bill becomes law. Even those relatives and family friends who oppose abortion but wish to ensure the minor undergoes a safe procedure and comes home unharmed will be considered criminals under this bill.
In yesterday's Senate hearing, members of the Senate Subcommittee on the Constitution heard some very moving testimony from Bill and Mary Bell, the parents of a daughter who died receiving an illegal abortion because she did not want her parents to know about her pregnancy. Indiana law required parental notice before she could have a legal abortion. A Planned Parenthood counselor in Indiana informed Becky that she would either have to notify her parents or petition a judge in order to get an abortion. Becky responded that she did not want to tell her parents because she did not want to hurt them. She also replied that if she could not tell her parents that she was very close to, she would feel even less comfortable asking a judge that she didn't even know.
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The counselor suggested that Becky travel 110 miles away to Kentucky where she would not need to notify her parents. Instead she underwent a botched illegal abortion closer to home and died as a result. And I ask for unanimous consent to include the Bells' testimony from yesterday in today's record.
Mr. CANADY. Without objection.
[The information referred to follows:]
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GANNETT NEWS SERVICE ARTICLE DATED NOVEMBER 24, 1989
ABORTION LAW: FATAL EFFECT?
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WASHINGTON—Rebecca Bell died at age 17 because she was afraid to talk to her parents.
For years, she had treated her mother like her best friend, but that was before she got pregnant. After that, Rebecca hid her medical condition from her family, convinced they would throw her out of the house.
She tried to get an abortion near her home in Indianapolis, Ind., but was turned away because state law required her to get approval from her parents. In the end, she died in silence, after hemorrhaging for hours and developing pneumonia from an abortion-related infection.
''She loved (her parents) so much, she couldn't bear telling them,'' said Heather Clark, Bell's friend and the only person who know about the pregnancy.
Now, all Rebecca's parents can do is decorate their daughter's grave and wonder why Rebecca had to suffer by herself.
How Rebecca's abortion occurred remains a mystery. Her mother believes Rebecca got an illegal abortion. Rebecca's best friend thinks she had a spontaneous abortion.
Either way, the National Abortion Rights Action League says Rebecca is the first teen-ager in the country whose death can be linked to a parental-consent laws. Now, Rebecca's parents say they may work to repeal parental consent laws, which are among the most controversial abortion statutes in the country. The Supreme Court Wednesday will hear two cases concerning parental-consent and notification laws in Ohio and Minnesota.
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''Mad there not been that law, she'd be here today,'' William Bell said in his first interview since his daughter died September 1988.
''Kids ought to listen to their parents,'' William Bell said. ''But how can you legislate morality? It's insane.''
The Bells never thought this would happen to their daughter. The blonde-haired, blue-eyed girl was a cheerleader in junior high, and often bubbled with enthusiasm. She kept posters of James Dean and Marilyn Monroe on her bedroom walls, and was almost always fighting for some cause.
One year, she raised money for the Humane Society, turning cartwheels for cash until her hands were covered with blisters, her mother said. Before she died, she had become interested in the plight of the American Indian.
For years, the Bell household was filed with Rebecca's friends. They remember spending some time with the family eating pancakes, which Rebecca's mother made in the shape of bunnies, with chocolate chips as eyes.
Among her closest friends was her mother. They were so close—they even discussed sex.
''I just can't imagine doing anything. It just makes me sick,'' Karen Bell remembers her daughter telling her.
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''Then,'' she said, ''she met this monster.''
Rebecca's last love was a high school dropout, according to family and friends. They claim he was violent and introduced her to drugs.
''It was a sick love,'' Clark said. ''She was so obsessed by him.''
Clark said she knew that Rebecca and the boy had been having sex, but that he swore to Rebecca he was sterile because of some early childhood disease. And before long, Rebecca feared she was pregnant, which her mother learned about through a family friend.
Karen Bell rushed her daughter to Planned Parenthood for tests, which proved to be negative. Later, she and her husband put Rebecca in a detoxification center for seven weeks, to rid her of her new drug habit.
''Becky, I don't want to go through this again,'' William Bell recalls telling his daughter.
But Rebecca remembered that conversation differently, Clark said, recalling repeatedly that her parents told her if she messed up one more time, she'd be thrown out of the house.
So, when Rebecca feared she was pregnant the second time, she confided only in Clark. Together, they went to Planned Parenthood, where a counselor confirmed their fears and told them about the Indiana parental-consent law, Clark said.
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''I hate this baby. I cannot have this baby. This is the devil's baby,'' Rebecca told Clark after leaving the clinic. ''She just thought her boyfriend was such a bad person that the baby would have to be, too.''
During the four months of her pregnancy, though, Rebecca wavered about her decision, Clark said. She contemplated a trip to a Kentucky abortion clinic or running away to California, where she planned to have the baby and put it up for adoption. Most of the time, she said, Rebecca favored the abortion, but she kept postponing her trip out of state.
What happened in the final six days of her life remains a mystery.
One Saturday night, Rebecca came home late, even though she was supposed to spend the night with a friend.
''Mom, forgive me. I know I'm late,'' her mother recalls her saying. ''I wanted to be home in my own bed. Mommy, I'm so sick. I feel like somebody put something in my drink.''
Karen Bell believes her daughter had someone try to induce an illegal abortion that night. ''She'd gone to a bad part of town.'' she said.
Clark insists her friend did nothing of the sort, saying Rebecca talked about getting a legal abortion in Kentucy until she died. She thinks Rebecca had a spontaneous abortion.
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Whatever happened, Rebecca got sicker by the day.
She was so sick at school on Tuesday, she was crying when she saw her friend Clark.
''She had a real sharp pain in her chest,'' Clark recalled. ''She knew if she went to the doctor, they'd be able to tell (she was pregnant), and the doctor would tell her parents.''
Rebecca told her parents she had the flu, which her father believed since he'd just recovered from a similar illness. The flu, however, was really pneumonia, triggered by the infection in her womb. The Bells said they repeatedly tried to persuade their daughter to go the doctor, but she refused.
By Thursday, ''She was so sick, she could not breathe.'' Clark said. ''She couldn't lay down all the way.''
Still, Rebecca asked Clark to make a Saturday appointment at the Kentucky abortion clinic. As she lay dying, Clark said Rebecca requested she call one of her friends, who'd gone to the Kentucky clinic. That girl described the procedure to Rebecca.
All the while, Rebecca's mother had no clue what was going on. She didn't understand why her daughter kept muttering, ''Nothing's happening.'' Now, she realizes that Rebecca was anxiously awaiting the onset of a miscarriage.
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Friday, Rebecca started to hemorrhage.
''Mommy, I started.'' she said with a smile, her mother recalls, thinking that meant her daughter had started menstruating. She said she thought it was odd her daughter was happy. Rebecca usually dreaded her period since she often had cramps.
Once the bleeding began, Rebecca agreed to see a doctor.
It was too late.
''Her lungs literally came apart.'' Karen Bell said.
Neither she nor her husband learned about the pregnancy until they talked to a doctor at the hospital, who said, ''I don't know whether we're going to be able to save the baby.''
Only after the death did Karen Bell open her daughter's purse and discover a list of abortion clinics and adoption agencies. ''If only she'd been able to go to a clean place and take care of herself,'' Rebecca's mother said.
The funeral was filled with grieving teen-agers, who squirmed as they listened to the stern eulogy about illegal abortion.
''Becky did not have to die,'' the minister said, urging the children always to seek help. ''You can never make a mistake or commit a sin that cannot be forgiven. . . . Don't count your parents out. Even though you may not have the greatest relationship, they love you and are in your corner.''
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He told the children the Bells had offered to help any of them if they did not want to talk to their parents.
In the months that followed, ''At least 18 kids came to me to tell me about their abortions.'' Karen Bell said. ''They know of a place to get it done illegally.''
One girl left a note on Rebecca's grave, Karen Bell said, which read, ''I did exactly what you did, Becky, but I lived.''
Rebecca's mother still treats her daughter as though she is still alive.
She visits the grave daily, and continually decorates it with flowers and balloons. At Halloween, she left a pumpkin there, and she is already making plans for a Christmas tree. Always, there are empty notebooks at the grave, so passers by can record their thoughts.
For the past year, Rebecca's mother searched for the perfect tombstone, deciding to hire a stone carver to chisel a five-foot angel, complete with her daughter's face.
She has kept her daughter's room intact, letting Rebecca's friends borrow her clothes and play her stereo. Karen Bell often listens to a recording her daughter made when she was 14. ''I play it because I love to hear her voice,'' she said.
When Bell's brother, Billy, gets depressed, he said he'll sleep in his sister's old room. ''Just to be close to her.''
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Fourteen months after her death, the family is ready to speak out against parental-consent laws. William Bell said he may testify before the Indiana Legislature to get his state's law repealed.
''If you had a beautiful daughter and she was lying in a graveyard, what would you do?'' Karen Bell asked. ''Becky would expect us to do this to save others.
''Whatever I can do, I will do. I haven't got anything to lose. I lost it. I've lost my life, my daughter, my only daughter. She died from one mistake.''
Karen Bell pauses and says, ''I try to live with a broken heart and stay—alive.''
(Rochelle Sharpe writes for Gannett News Service in Washington.)
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Mr. SCOTT. Although this bill technically would not have affected Becky Bell, it will hurt women in similar situations who are unable—who would be unable to cross State lines to get a safe legal abortion. I urge my colleagues in this subcommittee to pause and take a long, hard look at the only consequence that will result from this bill encouraging the isolation and endangerment of the young Becky Bells of the world.
Mr. CANADY. Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, the so-called Child Custody Protection Act is a terrible proposal that would punish young women, force them to risk their health, and isolate them from adults who might be able to help them in a time of crisis. Yes, young women should be encouraged to seek their parents' advice and counsel when facing difficult choices regarding abortion, or anything else for that matter, and the statistics show more than 75 percent of minors under 16 already do so. But in a situation where the young person has good reasons not to involve her parents, perhaps due to sexual abuse, to violence in the family or other equally valid concerns, we should not make it more difficult for her to go to someone who she does trust for assistance. Why isolate young women in a time of crisis in their lives?
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This bill could force a grandmother to go to jail for coming to the aid of her grandchild in a time of crisis. It could criminalize any adult relative of a child who tries to help the young women at this time. It could even imprison a parent of a child who drives the child across State lines to get an abortion.
As you know, some States require parental consent from both the father and the mother of the child. What if one of the parents cannot be located or has fled, or has been abusive, or hasn't seen the child since she was born, and then the other parent drives the daughter to another State for an abortion? This bill would make that parent a criminal. This is absurd.
Furthermore, the judicial bypass option in many parental consent laws has proven to be ineffective. Problems have been reported in Indiana and Ohio where a 17-year-old who testified that her father beat her was still not allowed to bypass the parental consent of that parent by the Ohio Supreme Court. Many local judges refuse to hold hearings on this subject or are widely known to be anti-choice and refuse to grant bypasses despite rulings of the Supreme Court that they cannot withhold the bypass under certain conditions.
Since the bill criminalizes any adult who drives a young woman across State lines for the purposes of obtaining an abortion, it leads to yet another problem. This bill may force a young woman to drive by herself for long distances both before and after her abortion, greatly increasing her own health risks, rather than to allow a responsible adult to accompany the woman to and from the clinic. This is dangerous and unnecessary.
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The American Medical Association has noted that women who feel they can't involve a parent often take drastic steps to maintain the confidentiality of their pregnancies, including running away from home, obtaining unsafe back-alley abortions, or resorting to risky self-induced abortions. The AMA has reported that, quote, the desire to maintain secrecy has been one of the leading reasons for illegal abortion deaths since 1973.
So, Mr. Chairman, this bill would increase abortion deaths. This bill is a death sentence for some young women. This bill would end up killing innocent—more innocent young women. I think we need to keep that in mind as we consider this absurd proposal. This bill, like all parental content laws and required waiting period laws, further risks women's health because it delays abortions. As we all know, the further along a pregnancy is, the more dangerous any termination procedure becomes.
Let me remind the Chairman and everyone else that abortions are legal in the United States despite what some people may wish, and they should be as safe as possible. This bill is a giant step in the wrong direction.
My remarks just scratch the surface of all the potential problems that would result if this bill were to become law. For example, I did not mention that the bill is probably unconstitutional because—it is clearly unconstitutional because it does not provide any exceptions for when a woman's health would be endangered, which is required by Roe v. Wade. So I look forward to hearing from our witnesses so that we can fully expose the absurdity of this terrible proposal.
I bring up one other basic problem with this bill. I know of no other law, Mr. Chairman, I know of no other proposal, Mr. Chairman, where we seek to make it criminal to travel to a State or to accompany someone to a State for the purpose of doing something that is legal in that State. What this bill really says is we regret the Constitution, we regret the Federal Union, we want to go back to a series of sovereign States, and we want to allow the State of Ohio to hold a young girl captive. Insofar as we can make it, Ohio should be able to hold her captive so she cannot go to Illinois to do what is legal in Illinois. What does that do to our Federal Union, Mr. Chairman? What does that do to any concept of legality and law in this country? Let's hold women prisoners in their State. Let's make it a felony to help them go to a State to do something legal in that State.
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I think nothing further must be said about this bill.
Mr. CANADY. We will now go to our first panel of witnesses. On our first panel, we are very pleased to hear from five distinguished Members of the House of Representatives. First we will hear from the Honorable Ileana Ros-Lehtinen. Congresswoman Ros-Lehtinen is the primary sponsor of the Child Custody Protection Act. She is a colleague of mine from Florida, where she represents the 18th District. I want to thank the Congresswoman for her outstanding leadership on this issue.
Second we will hear from the Honorable James L. Oberstar. Congressman Oberstar, one of several Democratic cosponsors of H.R. 3682, represents the Eighth District of Minnesota.
Third we will hear from the Honorable Nita Lowey. Congresswoman Lowey represents the 18th Congressional District of New York.
The Honorable Sheila Jackson Lee will be next to testify. Representative Jackson-Lee, a member of the full Judiciary Committee, represents the 18th District of Texas.
And finally, on our first panel today will be the Honorable Christopher Smith. Congressman Smith, who represents the Fourth District of New Jersey, is cochairman of the House Prolife Caucus.
Again, I want to thank each of you for being with us here this morning. I would ask that you do your best to summarize your testimony in 5 minutes or less. We will have the light illuminated—we probably won't strictly enforce the 5-minute rule, but without objection, your full written statements will be made a part of the permanent hearing record.
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Mr. CANADY. Congresswoman Ros-Lehtinen.
STATEMENT OF HON. ILEANA ROS-LEHTINEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Ms. ROS-LEHTINEN. Thank you so much, Chairman Canady and colleagues. My colleague from Miami, Congressman Lincoln Diaz-Balart, could not be with us, and I would ask that his statement be made a part of the record.
Mr. CANADY. Without objection.
Ms. ROS-LEHTINEN. Mr. Chairman, thank you so much for the opportunity to appear this morning before your subcommittee to speak on legislation that is of great importance to our Nation's parents and to our children, H.R. 3682, the Child Custody Protection Act. This legislation that we are discussing today goes beyond the issue of abortion. It goes right to the heart of the right of States to implement and enforce their laws. It allows parents their fundamental right to counsel our daughters on a critical life decision.
Today 22 States have parental consent or notification laws on their books. The Child Custody Protection Act will help these States enforce their parental consent laws, which can be unfortunately circumvented now by strangers who escort young girls across State lines to obtain a life-threatening medical procedure in complete disregard for the law.
How can we explain that in my hometown of Miami, Florida, my alma mater, Southwest Miami High School, requires a parent to sign a release form for a student to leave school grounds to attend even an educational and chaperoned field trip? There is a 3-page form that is required in the Nation's fourth largest school district for such a trip to take place, and the parent must sign them. Another form is needed for the parents to let their child leave before the school day officially ends, and this is a 2-page form that is required. That same high school requires any student to obtain parental consent to receive even mild medication such as aspirin in order to alleviate them from any discomfort that they may experience during school hours, and this is the form for authorization for medication along with a 2-page instruction sheet of the guidelines for medication in schools.
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In most schools, parents are also given full notification of their children's educational choices. For example, they are made aware that their children are enrolled in a basic sex education class, and they are given the option to withdraw them from the course, and there are also forms and guidelines to follow that. Yet all of these important rules and regulations are aimed at ensuring the safety of our children through parental guidance, yet somehow these same parents can be denied the right to know that their daughter was subjected to a secret and potentially fatal operation.
An advertisement that you see there to your left was placed in today's Washington Times, and it is appearing in all of the publications just about nationwide, and it says, it is time to keep tobacco companies from addicting any more of our children to their deadly products. This advertisement, sponsored by the American Cancer Society, concludes by stating that our Nation needs a tough bill to stop the lies and stop the killing, and antitobacco groups such as this one, as well as President Clinton and many Members of Congress and many of America's citizens, are up in arms and outraged that cigarette ads are enticing our young people to smoke. They place advertisements such as these calling for hearings and lobbying to move legislation in an attempt to keep minors from being harmed.
Yet many of these same individuals and groups that are set out to rescue our children from the dangers of this world have remained silent on other ads, ads such as the ones right there enticing a young girl to violate the laws in certain States and obtain a life-threatening procedure. Look at the ad from an advertisement in the Yellow Pages that says, no waiting period, no parental consent required, enticing the minors to go to those States. They have nothing to say about a stranger removing a child from the custody of a parent and escorting them secretly to a different State. Regardless of one's belief and stance on abortion parents would be outraged over another person making decisions for them and for their child that they themselves are capable of making if given the chance.
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The statements of some organizations claiming their constitutional right to procure secret abortions for minors are preposterous. Nowhere in the Constitution does it say that a stranger has more rights than a parent to oversee the welfare of our children than we have as parents. Parents know the medical history of their child, and a stranger does not. Parents know a child's reaction to pressure of this nature. Parents are capable of comforting their children in their greatest time of need; a stranger is not.
The Child Custody Protection Act is a bill about protecting my rights, your rights, and every parent's right to protect our own children. This bill will protect, enforce and uphold the law. It is designed to strengthen existing State laws which violators feel they can circumvent. This bill will send a message to the public that Congress and America will no longer tolerate the utter disregard and circumvention of State laws.
It is unbelievable but true that we who live in the most democratic nation in the world would have to legislate over a right that is so inherent, so assumed, and so basic that it seems almost an aberration that we have to protect it, my right and every parent's right to at least be notified of our minor daughter's abortion, a major medical procedure that could have lasting emotional, physical and psychological consequences upon each and every one of our daughters.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
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[The prepared statement of Ms. Ros-Lehtinen follows:]
PREPARED STATEMENT OF HON. ILEANA ROS-LEHITNEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Chairman, thank you for the opportunity to appear this morning before the Subcommittee on the Constitution to speak on legislation of great importance to our nation's parents and to their children—H.R. 3682, the Child Custody Protection Act.
The legislation we are discussing today goes beyond the issue of abortion.
It goes right to the heart of the right of states to implement and enforce their
It allows parents their fundamental right to counsel their daughters on a critical life decision.
Today, 22 states have parental consent or notification laws on their books.
The Child Custody Protection Act will help these states enforce their parental consent laws which can be circumvented by strangers who escort young girls across state lines to obtain a life threatening medical procedure in complete disregard for the law.
How can we explain that in my hometown of Miami, Florida, my alma mater, Southwest High School requires a parent to sign a release form, a permission slip, for a student to leave school grounds to attend even an educational and chaperoned field trip?
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This same high school requires any student to obtain parental consent to receive mild medication such as aspirin in order to alleviate them of any discomfort they may experience during school hours.
In most schools, parents are given full notification of their children's educational choices; they are made aware that their children are enrolled in a basic sex education class and are given the option to withdraw them from the course.
These important rules and regulations are aimed at ensuring the safety of our children through parental guidance, yet somehow these same parents can be denied the right to know that their daughter was subjected to a secret and potentially fatal operation.
An advertisement that was placed in today's Washington Times and in just about every publication, states, ''it's time to keep tobacco companies from addicting any more of our children to their deadly products.''
This advertisement sponsored by the American Cancer Society concludes by stating that our nation needs a tough bill to stop the lies and stop the killing.
Anti tobacco groups such as this one, as well as President Clinton, many Members of Congress and much of America are up in arms and outraged that cigarette ads are enticing youth to smoke.
They place advertisements such as these, calling for hearings and lobbying to move legislation in an attempt to keep minors from being harmed.
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Yet many of these same people who are set out to rescue our children from the dangers of this world have remained silent on ads that entice that young girls to violate the law and obtain a life threatening procedure.
They have nothing to say about a stranger removing a child from the custody of a parent and escorting them secretly to a different state.
Regardless of one's belief and stance on abortion, parents would be outraged over another person making decisions for them and for their child, that they themselves are capable of making, if given the chance.
The statements of some organizations claiming their ''constitutional right'' to procure secret abortions for minors are preposterous.
Nowhere in the Constitution does it say that a stranger has more rights to parent and oversee the welfare of my child than I have.
Parents know the medical history of their child, a stranger does not.
Parents know a child's reaction to pressure of this nature; Parents are capable of comforting their children in their greatest time of need; a stranger is not.
The Child Custody Protection Act is a bill about protecting my rights, your rights, and every parent's right to protect our children.
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This bill will help protect, enforce and uphold the law.
It is designed to strengthen existent state laws which violators feel they can circumvent.
This bill will send a message to the public that Congress and America will no longer tolerate the utter disregard and circumvention of state laws.
It is unbelievable, but true, that we, who live in the most democratic nation in the world, would have to legislate over a right, a right that is so inherent, so assumed and so basic, that it seems almost an aberration that we have to protect it—my right and every parent's right to at least be notified of our minor daughter's abortion, a major medical procedure that could have lasting emotional, physical, and psychological consequences upon each and every one of our daughters.
I am here to protect my rights and the rights of every parent who may fall victim to those looking to violate our laws in the name of Roe v. Wade.
One of America's greatest statesmen, Alexander Hamilton, said that ''The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power.''
One of these sacred rights is the right to parent your child.
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As parents, and as legislators, we the Congress must take action to ensure that this sacred right is not erased or obscured by mortal power.
We must protect our right to parent from those strangers looking to violate our rights in the name of Roe v. Wade.
We must keep our families secure from purveyors of secret abortions, regardless of their motives.
This bill will strengthen family bonds and will ensure that our state laws are not circumvented in this reckless manner.
Mr. CANADY. Congressman Oberstar.
STATEMENT OF HON. JAMES L. OBERSTAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. OBERSTAR. Thank you very much, Mr. Chairman and colleagues. I am here today to share with you the very compelling and deeply moving story of a family that has gone through the trauma that this legislation attempts to address. The story was brought to my attention by my administrative assistant, Bill Richard, who knows the family, through whom I met the family who are his neighbors and friends here in the D.C. suburbs. We invited them to come to testify, but they are so traumatized and so distraught, and their daughter in such a difficult condition, that they preferred not to, and to protect them and their daughter, keep their names anonymous.
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This April 15, the Smiths, let's call them, learned that their 14-year-old daughter was pregnant. They were devastated. They searched their own hearts and thoughts and family values and wondered what happened, how did this occur. They talked, comforted and consoled with their daughter. They were faced with the option that we talk about a great deal in this body, a family with a—a sudden unexplained or maybe even unwanted, certainly unintended, pregnancy.
The daughter also agonized about the case. Initially she thought about an abortion. But as she and the family consulted and reflected, the daughter realized that that was contrary to her values, to all that she had been brought up to believe in, and that this was the wrong choice for her, and decided that she would carry the child to term, but give it up to adoption because she at that age was not able to care for the child.
I am sure that that was the process that our son's mother went through. Our son was adopted. His mother went through the same choice. She had an unintended pregnancy, decided to carry that pregnancy to term, and we have Ted.
However, along the way some friends, 20 and older, of this young girl talked to her about having an abortion, about leaving home, about going to another place, and suddenly the young girl disappeared from home. For 16 days the family agonized. They checked with Montgomery County Police, who said, we've got 2,000 of these cases a year; we have two personnel, two detectives to address these matters. We don't have the time to track down your daughter unless you have some hot leads, unless you have some real solid information.
For 16 days, as I said, the trauma for the family, the agony of sleepless nights and uncomforting mornings continued. No word about their daughter. Five days ago, completely unexpected, their daughter returned home, pale, weak, distraught, emotionally destroyed. Her friends had indeed encouraged her to go elsewhere and have an abortion. She returned home. The family received her with all the love that they could and comforted her, and she is now in a hospital being treated for severe depression, distraught about her friends, emotionally overcome about having done something that is contrary to her beliefs and about which she was counseled by people who to her were friends, but clearly were not, who pressured her into doing something that was contrary to all she had been brought up to believe. These young people, I would hate to call them criminals, but they engaged in an activity that had a painful end result verging on the criminal. This legislation would address that kind of situation.
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We should not have such cases troubling our conscience and distressing—if we believe in family values, then we ought to take some actions that support families. We owe it to parents who love their children, who want to comfort their children, and granted there are some cases, those cited by my colleague Mr. Nadler, where there is a broad gulf between parent and child. But we owe it to those parents where there is a bond, where there is love, that we should protect that family value, protect them against those who would lure their children from that bond and circle of love and move them into destructive decisions and consequences, and I support the legislation.
Mr. CANADY. Thank you very much.
[The prepared statement of Mr. Oberstar follows:]
PREPARED STATEMENT OF HON. JAMES L. OBERSTAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. Chairman and Members of the Committee,
I would like to share with you the story of a family here in the Washington DC suburbs that illustrates in horrific detail why I am an original co-sponsor of the legislation that we are discussing today. The husband and wife were unable to testify today because of the deep trauma their family has experienced and their desire to protect their daughter from further distress, but they have asked me to share their story in the hope that it may help to spare others from the anguish they have endured.
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On April 15, my friends found out that their 14-year-old daughter was pregnant. As a family, they were devastated. Although they had always believed that life is sacred and rejected abortion as an option, they were suddenly faced with the very real impact that an unwanted pregnancy for a child has on a family. They agonized over deciding whether their daughter could mentally withstand the stress of carrying the baby to term versus the horrible guilt for their daughter and themselves associated with aborting the baby solely for their own convenience.
My friends decided to take time to carefully study the options. They took their daughter for an ultrasound so she could see the fetus growing within her and think about what that developing life might mean. They scheduled a visit to St. Anne's home in Prince George's county, a residential community and school established for young, unwed pregnant teens. They scheduled a visit to the Shady Grove Crisis Pregnancy Center so their daughter could better understand abortion procedures, risks, and psychological consequences. They arranged for discussions with adoption agencies so they could understand how a baby might bring joy to some deserving couple out of the pain that they as a family would endure during their daughter's pregnancy. And they prayed frequently with their family, friends, and church community for guidance.
My friends' daughter was swamped with confusing and conflicting feelings about the pregnancy. Initially, she wanted an abortion to avoid the terrible impact on her life of an unwanted baby. Then, as she reflected on her family and her own religious belief, she decided that she would have to see the pregnancy through and give up the baby for adoption since she knew she had no resources to raise and care for a baby. Then she thought briefly about her responsibility to this new life and considered the possibility of keeping the baby and trying to provide the love and care that an infant and developing child would need.
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While my friends were struggling with trying to find the right answer for their family, and their daughter was experiencing a whirlwind of conflicting emotions, their daughter's friends, some of whom were over 20 years old, were pressuring her to have an abortion and end the pregnancy. Without any concern for the potential risks to this young girl, without consideration of the consequences to the family, and with no thought of the long term psychological consequences to this child, they continued to ''turn up the heat'' on her to have an abortion.
Finally, on May 1, my friend's daughter ran away from home, helped by these older so-called friends. The girl left before my friends were even able to help her finish looking at her options. Before she could see what support might be available to her, and before the procedures and consequences of the abortion could be explained.
For sixteen days, my friends' daughter was missing and they heard nothing from her. In their anguish, my friends imagined every conceivable terrible thing that could happen to their daughter. The combined efforts of the Montgomery County Police Department and the Montgomery County Sheriff's Department were unable to locate this missing girl. In the case of the police department, they told my friends that they processed almost 2000 runaway cases a year and had only 2 detectives assigned to follow-up on current cases. When the police learned that my friends' daughter might be seeking an abortion, they showed even less concern for trying to find this missing teenager. Empty nights of loneliness and regret gave way to dreary dawns of increasing hopelessness as time passed, and no word came back on the location of their daughter.
Finally, completely unexpectedly, my friends' daughter showed up at home, pale as a ghost, weak, distraught, and emotionally nearly destroyed. Her so-called friends had helped her obtain an abortion outside of Maryland using a false name, and probably false medical information. Then they dumped her back near her parents' house and disappeared. This broken girl is now hospitalized for severe depression and faces a long and difficult recovery. Her family has been torn and denied the opportunity to provide the love, support, and advice that she needed to make a well thought out decision on the best possible course of action for herself. Bullied by thoughtless and self-centered outsiders, my friends' daughter succumbed to coercion and was drawn away from the family that loved her at the time she needed them most.
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These vile so-called friends of this young girl are criminals in every sense of the word, except the one that is most important. By luring my friends' daughter away from her family and taking her out of state to have an abortion, they have wrought untold destruction on a young girl, her parents, and her brother. Their despicable actions should make them criminally liable and the proposed legislation will provide the necessary basis for prosecution of similar acts in the future.
There are no circumstances where a child should be stolen from her family and have an invasive medical procedure with dire psychological consequences performed out of state. We owe it to families across the country to protect their right and responsibility to reach their own informed decisions on the best way to handle their children's pregnancies. We owe it to parents to punish those people who contemptuously intervene in the family's deliberations, snatch children from their parents, hustle them out of state, and coerce them into potentially very destructive decisions that will have life long consequences.
Much is said these days about family values. Here is a chance to speak out for the real value of a family. Through enacting this legislation, we have a unique opportunity to uphold the love and care that parents feel for their daughters during the most difficult decisions that they may ever face. Let's protect families from outside interference and affirm the responsibility of families to make decisions in the best interests of their children.
Mr. CANADY. Congresswoman Lowey.
STATEMENT OF HON. NITA LOWEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
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Mrs. LOWEY. Mr. Chairman, members of the committee, I thank you for the opportunity to testify before you today on H.R. 3682. I am concerned about this bill because of its impact on the lives, health and safety of adolescent girls and their families.
The bill you are considering today would prohibit anyone, including a parent, stepparent, grandparent or religious counselor, from accompanying a young woman across State lines for an abortion if it violates the State's parental involvement law.
The bill is unnecessary, and it is dangerous. Already most young women, more than 75 percent in fact, involve one or both parents in the decision to seek abortion. As a mother of three and a grandmother of two, I can only hope and pray that every young person in crisis would seek the assistance and the counsel of loving parents in deciding how to cope with an unwanted pregnancy. Pregnant teens should receive counseling about the full range of options before them, including adoption.
Unfortunately not every child has loving parents to counsel them. This Congress has had many debates in recent years about parental notification laws in the context of both abortion and family planning. In an ideal world every child has parents they can talk to, but unfortunately we just don't live in an ideal world, and the truth is family communication and open and honest parent-child relationships cannot be legislated.
So what about the minority of girls who find themselves pregnant and feel they cannot turn to their parents for help? This bill sends them a clear message: Go it alone, you are on your own. The bill tells them to fend for themselves without any help from a responsible adult. It tells them, don't tell your grandmother, don't tell a friend; in your greatest hour of need you are on your own.
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What will become of these girls who choose to have an abortion, the girls who don't have loving parents to turn to? Some will seek back alley abortions close to home. Some will commit suicide. And others will travel to unfamiliar places for abortions by themselves. How will they get there? Bus? Hitchhiking? Imagine them making their way home after the procedure. These are vulnerable young women who need the involvement of an adult during a difficult time, and in a State that requires the involvement of both parents, one person, one parent who took a daughter across State lines to an abortion provider would be subject to criminal charges if the young woman's other parent did not know about or consent to the abortion, even if the parents were estranged and the other parent's whereabouts were unknown.
As the cochair and the founder of the Congressional Advisory Panel to the National Campaign to Prevent Teen Pregnancy, I am extremely concerned about our Nation's teen pregnancy crisis. We must all encourage abstinence and responsibility among teens so that no young woman finds herself in this situation. But at the same time we must recognize that when teens do become pregnant, they need all the love and guidance they can get.
And so what will become of the grandparents or the friends who try to help these young women? They will be thrown into jail. The bill will make criminals of loving grandparents and caring friends. Currently more than half of all young women who do not involve a parent in this difficult decision do seek the advice and counsel of another adult, including 15 percent who turn to an adult relative. We should encourage the involvement, in my judgment, of responsible adults in this decision, stepparents, aunts, uncles, religious minister or counselor, not criminalize that involvement.
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Mr. Chairman, young women leave a State with a parental involvement law to seek abortion for many reasons. In some cases it is for the reason of access, since 84 percent, 84 percent, of counties in this Nation have no abortion provider at all, and in some cases the nearest abortion provider is across State lines. In other cases young women cross State lines to escape abusive and dangerous parents. Think of Spring Adams, a 13-year-old sixth-grade student named Spring Adams, who was shot to death by her father after he learned she was to terminate a pregnancy caused by his acts of incest.
In conclusion, Mr. Chairman, most young women, more than 75 percent of minors under age 16, already involve one or both—already involve one or both parents in the decision to seek an abortion. I feel strongly that those who feel they cannot involve a parent should be encouraged, not denied; they should be encouraged to involve a responsible adult instead. Unfortunately this bill will isolate young women by encouraging them to make the difficult decision to have an abortion on their own, and then force them to travel to an unfamiliar place to have the abortion.
There is no evidence that this bill will encourage young women to involve their parents in the decision to seek an abortion. In fact, this bill will not bring families together, unfortunately, and will drive them farther apart.
I firmly believe that we should make abortion less necessary for teenagers, not more dangerous and difficult. We need to teach teenagers to be abstinent and responsible. We need a comprehensive approach to help teenagers remain safe and healthy. We do not need a bill that isolates teenagers, puts them at risk. It simply should not be against the law to cross State lines to access a legal medical procedure.
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I thank you, Mr. Chairman.
Mr. CANADY. Thank you.
[The prepared statement of Mrs. Lowey follows:]
PREPARED STATEMENT OF HON. NITA LOWEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. Chairman, I thank you and members of the Committee for the opportunity to testify before you today on H.R. 3682. I am concerned about this bill because of its impact on the lives, health, and safety of adolescent girls and their families.
The bill you are considering today would prohibit anyone, including a parent, step-parent, grandparent, or religious counselor, from accompanying a young woman across state lines for an abortion if it violates the state's parental involvement law.
This bill is unnecessary, and it is dangerous. Already, most young women—more than 75%, in fact—involve one or both parents in the decision to seek an abortion. As a mother of three, I can only hope and pray that every young person in crisis would seek the assistance and the counsel of loving parents in deciding how to cope with an unwanted pregnancy. Pregnant teens should receive counseling about the full range of options before them, including adoption.
Unfortunately, not every child has loving parents to counsel them. This Congress has had many debates in recent years about parental notification laws in the context of both abortion and family planning. In an ideal world every child has parents they can turn to. But we do not live in an ideal world, and the truth is, family communication and open and honest parent-child relationships cannot be legislated.
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So what about the minority of girls who find themselves pregnant and feel they cannot turn to their parents for help? This bill sends them a clear message: Go it alone. You are on your own.
This bill tells them to fend for themselves without any help from a responsible adult. It tells them: Don't tell your grandmother. Don't tell a friend. In your greatest hour of need you are on your own.
What will become of these girls who chose to have an abortion, the girls who don't have loving parents to turn to? Some will seek dangerous back-alley abortions close to home. Some will commit suicide. And others will travel to unfamiliar places for abortions by themselves. And how will they get there? Bus? Hitchhiking? Imagine them making their way home alone after the procedure. These are vulnerable young women who need the involvement of an adult during a difficult time.
As the co-chair of the Congressional Advisory Panel to the National Campaign to Prevent Teen Pregnancy, I am extremely concerned about our nation's teen pregnancy crisps. We must all promote abstinence and responsibility among teens so that no young woman finds herself in this situation. But at the same time we must recognize that when teens do become pregnant they need all the love and guidance they can get.
And so what will become of the grandparents or the friends who try to help these young women? They will be thrown in jail. This bill will make criminals of loving grandparents and caring friends.
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Currently more than half of all young women who do not involve a parent in this difficult decision do seek the advice and counsel of another adult, including 15% who turn to an adult relative. We should encourage the involvement of responsible adults in this decision—stepparents, aunts or uncles, religious minister or counselor—not criminalize that involvement.
Mr. Chairman, young women leave a state with a parental involvement law to seek an abortion for many reasons. In some cases it is for reasons of access. 84% of counties in this nation have no abortion providers, and in some cases the nearest abortion provider is across state lines. In other cases young women cross state lines to escape abusive and dangerous parents. Think of Spring Adams, a 13 year old sixth grade student named Spring Adams who was shot to death by her father after he learned she was to terminate a pregnancy caused by his acts of incest.
In conclusion, most young women—more than 75% of minors under age 16—already involve one or both parents in the decision to seek an abortion. I feel strongly that those who feel they cannot involve a parent should be encouraged to involve a responsible adult instead. Unfortunately, this bill will isolate young women by encouraging them to make the difficult decision to have an abortion on their own and then force them to travel to an unfamiliar place to have the abortion, on their own. There is no evidence that this bill will encourage young women to involve their parents in the decision to seek an abortion. In fact, this bill will not bring families together—it will drive them farther apart.
I firmly believe that we should make abortion less necessary for teenagers, not more dangerous and difficult. We need to teach teenagers to be abstinent and responsible. We need a comprehensive approach to help teenagers remain safe and healthy. We do not need a bill that isolates teenagers and puts them at risk. It simply should not be against the law to cross state lines to access a legal medical procedure. Thank you.
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Mr. CANADY. Representative Jackson Lee.
STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Ms. JACKSON LEE. Thank you very much, Mr. Chairman and to Ranking Member Scott, thank you very much for giving us the opportunity to share our insight on this legislation.
This is legislation that brings about a great deal of emotion and concern. I don't think any of us who come before you this morning would counter the importance and the tragedy of teenagers who become pregnant. Both the boy and the girl face obstacles in life that sometimes are overwhelming. But Mr. Chairman, incest is prolific as well. In fact, in my hometown in Houston we now have a stepfather in jail because even though his pregnant stepdaughter of which he impregnated did take the child to full term, she was caught up in a web of tragedy because that stepfather ultimately kidnapped that child in order to avoid a DNA test to determine that he was the father.
I only cite that example because we don't know what goes through the minds of young women who discover that they have become pregnant. We would like in the best of all worlds for them to be able to live in a loving family situation where they could be protected and make the decisions in the safety of the family in making a family decision. But last year I voiced my opposition to the Istook amendment, which sought to require that a custodial parent or legal guardian be notified before their child received contraceptive drugs or devices from a title X family planning program.
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I don't know where we are going with this legislation primarily because we want to stop it at the prevention end, and then we want to create dangerous situations at the time when a young person is confused and devastated. This is not about the question of parental consent or having children disobey their parents or the dangers, possibly, of a child going to another State. It is about access to confidential reproductive health services, and this bill raises troubling concerns.
We do realize in Planned Parenthood v. Casey that the door has been open to States to legislate issues of parental involvement in minors' abortion decisions. We recognize that many States have engaged in that. But as a board member of the Best Friends Group chaired by Mrs. Powell and Mrs. Bennett, I, too, believe in helping young women find ways of developing their self-esteem and preventing teenage pregnancy. However, as we move toward this legislation, this does not prevent teenage pregnancy. This, in fact, causes and jeopardizes the lives of our young women.
Currently States have taken action. Parental involvement laws are in effect in 30 States. If H.R. 3682 is passed, the bill would have the effect of federally criminalizing these laws, extending their effect to States that have chosen not to enact such an obstructive and potentially dangerous statute. I think this smacks against the arguments that have been made by this Congress about States' rights and responsibilities.
These laws are dangerous, very dangerous, and I would like to cite again the story of 17-year-old Becky Bell's senseless death as an example of this danger. She died from a back-alley abortion as a result of Indiana's parental consent law. Rather than tell her parents about an unwanted pregnancy, she sought an abortion in a back alley. She suffered a fatal lung infection as a result. This is a tragedy that could be avoided and which will be replayed again and again if we do not oppose this law. Before she died, Becky took off her oxygen mask to say, Mom, Dad, I love you, forgive me.
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These children, these young women, when they go across State lines, and these parents who may help them, do not dislike their parents or do not want not to show love for their parents. Certainly those who have given them a nurturing environment may only find themselves caught up in what happens to teenagers, I just can't tell my parents. But they do love them.
Why are we preventing this young woman from having the confidential access to reproductive health services that she needs? The parents of young Becky Bell have said that if their family had lived 100 miles to the south, their daughter would be alive today, and yet now we want to federalize and criminalize these activities so there is no refuge, no hope, no opportunity to save lives. The parents of Becky Bell wish that their daughter could have gotten to another State to have a safe abortion.
A mother taking her daughter across State lines to the closest abortion provider could be prosecuted if the girl's father did not consent to the abortion, even if the parents were divorced and the girl's father could not be located. Or what if this girl, as I said earlier, was a victim of incest? Should the parental consent of the person who harmed her be required?
If convicted, women assisting girls seeking abortions could be subject to fines and imprisonments similar to the law that we tried—or that we have looked to enact regarding procedures that physicians would be implementing. Making those who are trying to help criminals is not the American way. The enactment of such a law would undoubtedly isolate these young women at a time of crisis. If a minor feels she is unable to tell her parents about her pregnancy, she would have no recourse to receive the medical treatment she needs at a time early enough in her pregnancy to perform a safe abortion.
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Mr. Chairman and Mr. Scott, I want most of all a safe and secure and nurturing environment for our young people. I want them to come to someone, a grandmother, a nurturer a mother or father to find refuge and have the ability to consult, but it must be of that young person's willingness because of the atmosphere that has been created, not intimidation. We know that confidentiality is essential to encourage minors to seek sensitive medical services and information.
As I conclude, Mr. Chairman, if I might, young women most often seek abortion services outside their home State provided reasons. Currently 84 percent of counties, home to 30 percent of women of child-bearing age, lack an abortion provider, and many young people fear being recognized at an abortion provider in their hometown. Fifty-eight percent of high school students surveyed in three public schools in central Massachusetts reported having health concerns they wished to keep from their parents, and 25 percent of the students said they would forego seeking certain types of medical treatment if there was a possibility of parental disclosure by physicians.
I agree, as I said, in closing, that we should have parents talking to children, but we realize that sometimes our children view it differently. Mr. Chairman, let us do the right thing and protect the safety of our children and ensure that criminalization does not get those who are in times of stress. This legislation is not the right way, and I would hope that my colleagues would recognize the importance of defeating this legislation and the important points that we have raised this morning.
I thank you for the time, Mr. Chairman.
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Mr. CANADY. Thank you.
Mr. CANADY. Congressman Smith.
STATEMENT OF HON. CHRISTOPHER H. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. SMITH. Thank you very much, Mr. Chairman. First of all, I want to associate myself with the remarks of Mr. Oberstar and the chief sponsor of this legislation Congresswoman Ileana Ros-Lehtinen, you might recall when Partial Birth Abortion was the issue, Planned Parenthood, the Guttmacher Institute, Zero Population Growth and many others wrote a collective letter signed by each of them that said that there were some 500 partial-birth abortions every year. That statement turned out to be a lie. They talked about the circumstances under which they were procured, which also turned out to be bogus, and they also were shown to be—and I say this because credibility does matter—to be putting out falsehoods in terms of the incidence of those types of abortions.
The Bergen Record, a daily newspaper in northern New Jersey with a strong proabortion editorial opinion, broke the story that in just one clinic, the Metropolitan Medical Associates in Englewood, that that one clinic did about 1,500 partial-birth abortions each and every year, about three times the number that the abortion lobby was saying were being performed nationwide. The paper pointed out that many of those abortions were being done on teenagers. That is, the large number of their clientele turned out to be young people.
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Now we find, and I say this with great concern and sadness, that the Metropolitan Medical Associates advertise and markets their wares in Pennsylvania and perhaps elsewhere and uses the fact that New Jersey does not have a parental consent or parental notice statute as a way of trying to lure young girls to their clinic. If you look at this advertisement, found in the Yellow Pages, it stresses that pregnancy terminated up to 24 weeks. That is a big kid, 24 weeks.
Mr. Nadler was talking earlier about late term abortions being more dangerous, which is probably true; 24-week or 6-month gestation babies, very large children, boys and girls, being aborted on teenagers, and one is—one of the hooks used to try to—in their advertising copy: No waiting period, no parental consent required. This puts our teenagers at grave risk.
Mr. Chairman, abortion methods, involve dismemberment or chemical poisoning of the unborn child. Saline abortions, for example, take up to 2 hours. The baby dies a slow, painful death as a result of the high-concentrated salt solution that is injected into the baby. Dismemberment abortion, while commonplace, certainly is not a pretty sight, and these babies are treated like cysts or tumors, to be vanquished. Ladies and gentlemen, we are talking about a boy or a girl, and most abortions are not procured for life of the mother or some other egregious reason, they are procured for reasons other than that, socioeconomic and other reasons.
My friend and colleague, Congresswoman Sheila Jackson Lee, talked about nurturing. I think we should be providing nurturing for mother and baby and quit looking at birth as the beginning of life, and look at the child before birth as someone who deserves basic respect, not hostile action. And I believe the error is compounded when you invite young girls who are vulnerable, and I have met many young girls who have both had abortions and those who, because of crisis pregnancy centers, did not, and time and time again they tell you they thank God, whether it was an adoption plan or some other, they kept the child, that that irreversible decision made very often when one is in an emotional state, that that tragedy was averted.
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If a teenager's secret abortion leads to complications. What happens? You know, my good friend Nita Lowey mentioned a moment ago that transport is provided by responsible adults. Where is it written that the person hopping in the car and driving a frightened and vulnerable 14-year-old or 13-year-old to an abortion is responsible? We are talking about a deliberate effort to evade a State law, very often encouraged by advertising such as the ads in my hand, to go across the State line, in many cases into my own State, to circumvent that law. Where does responsibility come in? If complications ensue, and an adult other than the parents are responsible for taking the minor across State lines, who takes care of the hemmoraging teenager?
Eileen Roberts will be testifying. I saw her on your witness sheet. I remember hearing her years ago talking about her 14-year-old, who she had no idea that she had the abortion, no idea. She found a note under a pillow, a questionnaire talking about some follow-up from the abortion clinic. Well, her daughter was put into a hospital for 7 weeks, and who you do you think had the responsibility to take care of her? And she did so lovingly because she loved her daughter and wanted to do everything humanly possible to help her. That, quote, ''responsible adult'' who may have taken her to the abortion clinic or any of these others were nowhere to be found.
Some leading abortionists have argued that thousands of young girls are being taken across state lines to get abortions. We need to say that the law does matter, that if a law of a State says that parental notice or parental consent is required, and those who say it might be a dysfunctional family forget the fact that these laws have judicial bypass within them. We need to say that those laws do matter, and we should not be encouraging these children, these children—we are talking about 14-year-olds and 15-year-olds, 13-year-olds. We are talking about children who are very vulnerable and then are being pushed into or carried over State lines in order to have an abortion. Sometimes it is the rapist's mother as was the case, statutory rape with the young boy, that made the papers and became a headliner in Pennsylvania where the mother took the child to New York to have the abortion, and the parents didn't have a clue. You know what were the reasons behind this ''responsible adult'' for doing that? You know, so that her son would not be held accountable by the law for the statutory rape, to keep it secret. It seems to me that that goes into another area of law breach.
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So I just encourage this subcommittee to promptly report this legislation. It is a good bill. Parental involvement is necessary—as Congresswoman Ileana Ros-Lehtinen pointed out a moment ago, if we were talking about surgery, the parents should be part of the process. Don't cut them out when it is irreversible as it is in the case of abortion and it is surgery that kills another person, a baby.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you Congressman Smith.
I want to thank all of the Members of this panel for your contribution to today's hearing. We appreciate your participation, and it is not our custom to ask questions of the Members panel. So we will now move to the second panel. Thank you for being here.
If the members of the second panel would prepare to come forward and take your seats. On our second panel today the subcommittee will first hear from Ms. Joyce Farley. Ms. Farley, who comes to us from Dushore, Pennsylvania, is accompanied by her daughter Crystal Ann.
Then we will hear from Miss Eileen Roberts. Miss Roberts is the founder of Mothers Against Minors' Abortions.
And finally, on the second panel we will hear from Reverend Katherine Hancock Ragsdale, an Episcopal priest who comes to us from Arlington, Virginia.
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Again, I want to thank each of you for being here with us today. I ask that you do your best to summarize your testimony in 5 minutes, and you will see the light there, although we are not going to strictly enforce the 5-minute rule unless some Member insists. Without objection your full written statements will be made part of the permanent record of today's hearing.
Ms. Farley.
STATEMENT OF JOYCE FARLEY, DUSHORE, PA
Ms. FARLEY. Good morning. My name is Joyce Farley, and I am here today with my daughter and husband to tell you why we support the Child Custody Protection Act. My daughter was a victim of several horrible crimes between the ages of 12 and 13. My child was provided alcohol, raped, and then taken out of State by a stranger to have an abortion. This stranger turned out to be the mother of the adult male who provided the alcohol and then raped my 12-year-old daughter while she was unconscious. The rapist's mother arranged and paid for an abortion to be performed on my child. This woman lied and falsified records at the abortion clinic to make sure this abortion would be completed without my knowledge. The abortion had been arranged to destroy evidence, evidence that my 12-year-old daughter had been raped.
On August 31, 1995, my 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 information in the medical record. Following the abortion the mother of the rapist dropped off my physically-, emotionally-battered child in another town 30 miles away from our home. The plan was to keep the rape and abortion a secret.
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If I had not contacted the State police on the morning of August 31, 1995, when I found my child missing, she might not be alive today. Severe pain and bleeding revealed complications from an incomplete abortion. This required further medical care and a second abortion to be performed. When my daughter began having complications from the first abortion, I contacted the New York clinic only to be told that her bleeding was normal and to increase her Naprosyn, which was given for pain, to every hour if needed. Being a nurse, I knew this advice was wrong and could be harmful, but my daughter would not have known this.
It was obvious proper care could not be received from the New York clinic. Our family doctor made a referral to a gynecologist, and my daughter received the care she needed in spite of the fact that the clinic made it very difficult to obtain her medical records.
Who would have helped my daughter if the mother of the rapist was successful in keeping the abortion a secret? My child suffered terribly, but I am thankful that she is alive.
The bill you are considering may help prevent this from happening to my neighbor's children, my future grandchildren or any child in the United States. It has been 3 years since these crimes were committed, but my daughter still suffers physically and emotionally. I cannot erase what happened to my daughter. Only God and time can heal her pain.
I will do whatever is in my power to protect not only my children, but all children, and I am calling on all of you to do the same. During the last 3 years I have been discouraged many times thinking our government and justice system have failed to protect our greatest resource and blessing, which is our children. I have asked myself how could a medical procedure like abortion be more protected in this Nation than our own children?
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I don't care what your views on abortion are. Just don't let them interfere with the protection of a child. Please don't turn your head and ignore what happened to my daughter, because it could happen to yours. I live in the State of Pennsylvania where there are laws to try and protect children from the dangers that occur with an abortion. These laws were violated when my child was transported across State lines without my knowledge or consent.
In 1995, I contacted the State Police, the FBI and Attorney General's office. I wanted something done about my daughter being raped and then kidnapped so the evidence could be aborted. I am still shocked and horrified by the crimes committed against my daughter, who I love so dearly.
The rapist pled guilty to two counts of statutory rape as a plea bargain when charged with rape. The mother of the rapist went to trial and was convicted by a jury with interfering with the custody of a minor. This judgment was reversed and remanded for a new trial by the Superior Court of Pennsylvania on October 28, 1997. The three judges reached their decision because of a supposed unclear jury instruction. After reading their judgment, it was obvious to me that they did not have accurate information to decide this case. I then wrote a response to the superior court judges, but to my understanding, it was never read. I sent each one of you a copy that I hope you will read. I am not looking forward to another trial, but I will do whatever is necessary for justice to be served.
This case attracted national media attention because an abortion was involved. The responses I received from the public are shock and disbelief that someone could do such a horrible thing to a child. In fact, many voiced retaliation. I am not a violent person and do not seek retaliation. I am seeking prevention and asking for your help.
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I believe the majority of the people in our Nation want to protect children from harm. Unfortunately they are at times a silent majority. I am asking you in closing to make sure the Child Custody Protection Act becomes the law of our great Nation. Thank you for allowing me, an ordinary citizen, to speak before you and participate in the Government of the United States.
Mr. CANADY. Thank you.
[The prepared statement of Ms. Farley follows:]
PREPARED STATEMENT OF JOYCE FARLEY, DUSHORE, PA
I am here today to tell you why I support the Child Custody Protection Act. My daughter was a victim of several horrible crimes between the ages of 12 and 13. My child was provided alcohol, raped and then taken out of state by a stranger to have an abortion. This stranger turned out to be the mother of the adult male who provided the alcohol and then raped my 12 year old daughter while she was unconscious. The rapist's mother arranged and paid for an abortion to be performed on my child. This woman lied and falsified records at the abortion clinic to make sure this abortion would be completed without my knowledge. The abortion had been arranged to destroy evidence—evidence that my 12 year old daughter had been raped. On August 31, 1995, my 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 information in the medical record.
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Following the abortion, the mother of the rapist dropped off my physically and emotionally battered child in another town 30 miles away from our home. The plan was to keep the rape and abortion a secret. If I had not contacted the state police on the morning of August 31, 1995 when I found my child missing, she might not be alive today. Severe pain and bleeding revealed complications from an incomplete abortion. This required further medical care and a second abortion to be performed. When my daughter began having complications from the first abortion, I contacted the New York clinic only to be told that her bleeding was normal and to increase her Naprosyn, which was given for pain, to every hour if needed. Being a nurse, I knew this advice was wrong and could be harmful, but my daughter would not have known this. It was obvious proper care could not be received from the New York clinic. Our Family Doctor made a referral to a gynecologist, and my daughter received the care she needed—in spite of the fact that the Clinic made it difficult to obtain her medical records. Who would have helped my daughter if the mother of the rapist was successful in keeping the abortion a secret? My child suffered terribly, but I am thankful that she is alive.
The bill you are considering today may help prevent this from happening to my neighbor's child, my future grandchildren, or any child in the United States. It has been three years since these crimes were committed, but my daughter still suffers physically and emotionally. I cannot erase what happened to my daughter, only God and time can heal her pain. I will do whatever is in my power to protect not only my children, but all children. I am calling on all of you to do the same.
During the last three years, I have been discouraged many times thinking our government and justice system have failed to protect our greatest resource and blessing, which is our children. I have asked myself, how could a medical procedure like abortion be more protected in this nation than our own children? I don't care what your views on abortion are—just don't let them interfere with the protection of a child. Please, don't turn your head and ignore what happened to my daughter—because it could happen to yours.
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I live in the state of Pennsylvania where there are laws to try and protect children from dangers that can occur with an abortion. These laws were violated when my child was transported across state lines without my knowledge or consent. In 1995, I contacted the State Police, the FBI and the Attorney General's office. I wanted something done about my daughter being raped and then kidnaped so the evidence could be aborted. I am still shocked and horrified by the crimes committed against my daughter who I love so dearly.
The rapist pled guilty to two counts of statutory rape as a plea bargain when charged with rape. The mother of the rapist went to trial and was convicted by a jury with interfering with the custody of a minor. This judgement was reversed and remanded for a new trial by the Superior Court of Pennsylvania on October 28, 1997. The three judges reached their decision because of a supposed unclear jury instruction. After reading their judgement, it was obvious to me that they did not have accurate information to decide this case. I then wrote a response to the Superior Court Judges, but to my understanding it was never read. I sent each one of you a copy that I hope you will read. I am not looking forward to another trial, but I will do whatever is necessary for justice to be served.
This case attracted national media attention because an abortion was involved. Responses I have received from the public are shock and disbelief that someone could do such a horrible thing to a child. In fact, many voiced retaliation. I am not a violent person and do not seek retaliation. I am seeking prevention and asking for your help. I believe the majority of the people in our nation want to protect children from harm. Unfortunately, they are at times a silent majority. I am asking you, in closing, to make sure the Child Custody Protection Act becomes a law of our great nation.
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Thank you for allowing me, an ordinary citizen, to speak before you and participate in the Government of the United States.
Mr. CANADY. Ms. Roberts.
STATEMENT OF EILEEN ROBERTS, MOTHERS AGAINST MINORS' ABORTION (MAMA)
Ms. ROBERTS. Mr. Chairman and members of the committee, thank you for allowing me to testify this morning. My name is Eileen Roberts. I am the founder of an organization called Mothers Against Minor's Abortions, or MAMA. This organization was formed to serve as a collective voice for others who also seek to restore the rights of parents to be involved when their minor-aged daughter seeks an abortion, whether in their community or for those who are taken across State lines without their knowledge or consent.
More significant, however, is the fact that I am a mother of a daughter, who at age 14 underwent an abortion without my knowledge. At age 13 a close relationship I had with my daughter was interrupted by a period of her rebelling, which included a relationship with a boy which I knew was not in her best interests. My daughter refused my request not to see this boy, but I continued to unconditionally love her and care for her to the best of my ability during this difficult time.
During my daughter's rebellion toward that parental authority, my daughter was encouraged by her boyfriend, with the assistance of an adult friend, to obtain a secret abortion without my knowledge. This adult friend drove my daughter to the abortion clinic 45 miles away from our home and even paid for my daughter's abortion.
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Wondering why my daughter had become depressed over the next 2 weeks, my husband and I thought perhaps her boyfriend had introduced her to drugs, so we searched for answers. Words cannot adequately communicate the Orwellian nightmare of discovering that your child had undergone an abortion from a questionnaire we found under her pillow, which she failed to return to the abortion clinic.
As a result of her depression, my daughter was hospitalized, at which time it was discovered that the abortion had been incompletely performed, requiring surgery to repair the damage done by they abortionist. I was called and was told that my daughter could not have that surgery without a signed consent form me.
The following year my daughter developed an infection and was diagnosed as having pelvic inflammatory disease as a direct result of that abortion, which again required a 2-day hospitalization for IV antibiotic therapy and required a signed consent form. To add insult to injury, my husband and I were responsible for the medical costs, which amounted to over $27,000.
I am here today to ask this committee to reject the eccentric notion that any adult stranger has the right to abduct our minor-aged daughters and take them to another State for a secret abortion. I speak for those parents I know around the country whose daughters have been taken out of State for their abortions. Many times these attempts to evade parental notification and consent laws are also attempts to conceal criminal activity, such as statutory rape. Certainly if a child is raped, a parent needs to know about it so this criminal can be prosecuted to the fullest extent of the law.
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I am horrified that our daughters are being dumped on our driveways after they are seized from our care, made to skip school, lie and deceive their parents to be transported across State lines, whether that be 2 miles or 100 miles. Where are these strangers when the emotional and physical repercussions occur? They are driving to once again pick up another girl and transport her and seize her for a secret abortion, and thus the malicious activity occurs over and over. Besides, strangers are not responsible for the financial and emotional costs that occur with secret abortions; parents are.
I am reminded of the child from New York whose parents were notified in time to make funeral arrangements. Mrs. Ruth Ravenell and her husband, who were awarded $1.3 million by the State of New York, shared with me and the Senate Education and Health Committee in Richmond, Virginia, that she sat in the hospital for 3 weeks before her daughter died, with her hand over her mouth to help keep herself from screaming.
I am aware and concerned for the many teens who are truly from abusive homes who are snatched away, given a secret abortion, and then sent back home to the abuser. This activity is contrary to the laws of this country, and these girls need to be removed from that home and the environment that they are in and encouraged to seek professional help.
Please allow parents the opportunity to put their arms around their daughters and say, I love you, we can work this through together, which parental notification and consent laws restore and this legislation will protect.
In conclusion, what has happened to my family has happened and cannot be changed, and fortunately my daughter is alive today. By supporting and passing a Child Custody Protection Act, parental notification and consent laws will be secured, and I can say with confidence that our young adolescent daughters will be protected, and family dignity will be restored.
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If I may respond also to the story of the Becky Bell family, I have spoken with the Bells in committees all over this country, and my advice to them and to the committees is that had Becky Bell been encouraged to obey the Indiana law, to tell the parents rather than teens go over State lines to Kentucky, Becky Bell would be alive today.
Thank you.
Mr. CANADY. Thank you, Ms. Roberts.
[The prepared statement of Ms. Roberts follows:]
PREPARED STATEMENT OF EILEEN ROBERTS, MOTHERS AGAINST MINORS' ABORTION (MAMA)
Mr. Chairman and members of the committee, my name is Eileen Roberts. I am the founder of an organization called MAMA, which stands for Mothers Against Minors' Abortions. This organization was formed to serve as a collective voice for others also seeking to restore the rights of parents to be involved when their minor aged daughter seeks an abortion, whether in their community or for those who are taken across state lines without their knowledge or consent.
More significant, however, is the fact that I am the mother of a daughter who at age 14 underwent an abortion without my knowledge.
At age 13, the close relationship I had with my daughter was interrupted by a period of her rebelling, which included a relationship with a boy, which I knew was not in her best interest. My daughter refused my request not to see him but I continued to unconditionally love and care for her to the best of my ability, through this difficulty time.
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During my daughter's rebellion towards our parental authority, my daughter was encouraged by her boyfriend, with the assistance of an adult friend, to obtain a secret abortion without my knowledge. This adult friend drove my daughter to the abortion clinic, 45 miles away from our home and even paid for my daughter's abortion.
Wondering why my daughter had become depressed over the next two weeks, my husband and I thought perhaps her boyfriend had introduced her to drugs, so we searched for answers. Words cannot adequately communicate the Orwellian nightmare of discovering that your child had undergone an abortion, from a questionnaire we found under her pillow, which she failed to return to the abortion clinic.
As a result of her depression, my daughter was hospitalized, at which time it was discovered that the abortion had been incompletely performed and required surgery to repair the damage done by the abortionist. I was called and was told that my daughter could not have this reparative surgery without a signed consent form.
The following year my daughter developed an infection and was diagnosed as having pelvic inflammatory disease, which again required a two day hospitalization for IV antibiotic therapy and requiring a signed consent form.
To add insult to injury, my husband and I were responsible for our daughter's medical costs which amounted to over $27,000.
I am here today, to ask this committee to reject the eccentric notion that any adult stranger has the right to abduct our minor aged daughters and take them to another state for a secret abortion. I speak today for those parents I know around the country, who's daughters have been taken out of state for their abortions. Many times these attempts to evade parental notification and consent laws are also attempts to conceal criminal activity, such as statutory rape. Certainly if a child is raped, a parent should know about it so this criminal can be prosecuted to the fullest extent of the law.
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I am horrified that our daughters are being dumped on our driveways after they are seized from our care, made to skip school, lie, and deceive their parents to be transported across state lines, whether it be two miles or 100 miles away. Where are these strangers when the emotional and physical repercussions occur? They are driving away to once again seize and transport other teens for secret abortions, and thus the malicious activity occurs again and again. Besides, strangers are not responsible for the financial or emotional costs that occur with secret abortions—parents are.
I am reminded of the child from New York who's parents were notified in time to make funeral arrangements. Mrs. Ruth Ravenell shared with me and The Senate Education and Health Committee in Richmond, Virginia that she sat in the hospital for three weeks before her daughter died with her hand over her mouth to keep herself from screaming.
I am aware and concerned for the many teens who are truly from abusive homes, who are snatched away, given a secret abortion and then sent back to the abuser. This activity is contrary to the laws of this country. These girls need to be removed from this environment and the family encouraged to seek professional counseling.
Please allow parents the opportunity to put their arms around their daughters and say, ''I love you, we can work this through together'', which parental notification and consent laws restore and this legislation will protect.
In conclusion, what has happened to my family, has happened that cannot be changed, however, by supporting and passing the ''Child Custody Protection Act'' parental notification and consent laws will be secured and I can say with confidence that our young adolescent daughters will be protected and family dignity will be restored.
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Thank you for the opportunity to share my story before this committee.
Mr. CANADY. Reverend Ragsdale.
STATEMENT OF REVEREND KATHERINE HANCOCK RAGSDALE, EPISCOPALIAN PRIEST
Reverend RAGSDALE. Thank you Mr. Chairman, members of the committee.
Mr. Chairman, for the sake of your records, I should perhaps say that while I lived the first 30 years of my life in Virginia and am proud to consider myself a Virginian, I come to you today from Arlington, Massachusetts, so it will perhaps make more sense when I tell you that I am the parish priest of a small rural congregation in Massachusetts.
Mr. CANADY. I apologize for the error.
Reverend RAGSDALE. That is quite all right. As I said, I still consider myself a Virginian.
I am, in fact, a parish priest in a small country parish in Massachusetts, and I suppose I am also one of the strangers about whom we have been hearing today, because it is not so long ago that I went to pick up a 15-year-old girl and drive her to Boston for an abortion. I didn't know the girl yet. I knew her school nurse. The nurse had called me a few days earlier to see if I knew where she might find bus and cab fare for the girl. I was stunned. A 15-year-old girl was going to have to take multiple buses to the hospital all alone.
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The nurse shared my concern, but explained that the girl had no one to turn to. She feared for her safety if her father found out, and there were no other relatives close enough to help. There was no one to be with her. So I went, and during our hour-long drive, we talked. She told me about her dreams for the future, all the things she thought she might like to do and be. I talked to her about the kind of hard work and personal responsibility it would take to get there. She told me about the guilt she felt for being pregnant even though the pregnancy was the result of date rape. She didn't call it that. She just told me about the boy who pushed her down and forced himself on her. But he didn't pull a gun or break any bones or cause any serious injury other than pregnancy and a wounded spirit, so she didn't know to call it rape.
So I talked to her about the limits of personal responsibility, about how not everything that happens to us is our own fault or God's will, and about how very much God loves her. And I took her inside, and I went downstairs to get a couple of prescriptions filled for her. And I paid for them after I was informed that otherwise her father would be billed.
And I took her back to school and to the nurse's office. Then I drove home wondering how many bright, funny, thoughtful girls, girls brimming with promise, were not lucky enough to know someone who knew someone who could help. I despaired that any young woman should ever find herself in such a position, but frankly, it never occurred to me that anyone would ever try to criminalize those who were able and willing to help.
In fact, New Hampshire was closer to that girl's home than Boston, but, as it happened, she was going to Boston, so I didn't take her across State lines. Nor did I, to my knowledge, break any laws. But I am here to tell you that if either of those things had been necessary, I would have done them. And if helping young women like her should be made illegal, I will, nonetheless, continue to do it. I have no choice. I took vows. And if you tell me that it is a crime to exercise my ministry, I will have no choice but to do it anyway. And I am not alone.
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I find it troubling that those of us in this room should find ourselves at odds over this issue. Presumably we all want the same things. We want fewer unplanned pregnancies, and we want young people who face problems, particularly problems that have to do with their health and their futures, to receive love and support and counsel from responsible adults, preferably their parents.
This bill, however, doesn't achieve those goals. If I thought that this bill would render impossible the kind of pain that the previous panelists have experienced and talked to us about, I would feel differently about it, but it won't. It doesn't resolve the problems with which we are faced. It doesn't even address those problems. This isn't a bill about solutions, it is a bill about punishment. And while it is the rare saint who is not subject sometimes to punitive impulses, such impulses are nonetheless venal and beneath the dignity of any member of the human family.
We should be talking instead about reality-based, age-appropriate sex education and about safe and affordable contraception. We should be talking about education and economics, about child care and welfare, about violence at home, on the streets and in the schools. We should be looking for new ways to solve our problems, not new ways to punish victims and those who care for them.
Yet no matter how successful our efforts, there will be minors who face unplanned pregnancies, and then as now we will want them to be able to turn to their parents for love and support and guidance. That is, I have to assume, the noble motive behind this bill. We are appalled at the thought of any girl having to face and make such a decision without the help of her parents, as well we should be. Nonetheless several years ago the Episcopal Church passed a resolution opposing any parental consent or notification requirements that did not include a provision for nonjudicial bypass.
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In our view, any morally responsible requirement had to allow young women to turn for help to some responsible adult other than a parent or a judge, to go instead to a grandparent or an aunt, a teacher or a neighbor, a counselor or a minister.
My church encourages the very things this bill would outlaw. Like you, we favor parental involvement. As you have heard, most girls do indeed involve their parents, 75 percent; we would like it to be 100 percent, but we know that no one can simply legislate healthy communication within families.
We know that of those girls who do not involve their parents, 30 percent feared violence or being thrown out of their homes. Statistical and anecdotal evidence demonstrates that in far too many American homes such fears are not unrealistic. And there is no excuse good enough to justify legislation that further imperils young people who are already in danger in their own homes.
Even if we were to find ourselves drained of the last vestiges of our compassion, there would still be a self-interested reason to fear and oppose this legislation. It imperils all young women, even those in our own happy families. Let's not kid ourselves. Even in the healthiest of families, teens sometimes cannot bring themselves to confide in their parents, teens like Becky Bell. Should Becky have talked to her parents? I think so. Did she exercise poor judgment? Absolutely. But, sisters and brothers, I am here to tell you that teenagers will, from time to time, exercise poor judgment. It is a fact of nature and there is no law you can pass that will change that. And the penalty for poor judgment should not be death.
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Oppose this bill. Oppose it because, no matter how good the intentions of its authors and supporters, it is in essence punitive and mean-spirited. Oppose it out of compassion for those young people who cannot for reasons of safety comply with its provisions. If all else fails, oppose it for purely selfish reasons. Oppose it because you don't want your daughter or granddaughter or niece to die just because she couldn't face her parents and you had outlawed all her other options. Thank you.
Mr. CANADY. I will begin the questioning with a question for you, Reverend Ragsdale. If I understand the incident you related, that took place in the State of Massachusetts?
Ms. RAGSDALE. Yes, it did.
Mr. CANADY. Am I correct in understanding that Massachusetts does have a law which requires the consent of one parent or judicial approval for abortion?
Ms. RAGSDALE. Yes, it does. This extraordinary young woman had managed to obtain a judicial bypass, but she still was going to have to take buses to get to the clinic to get the abortion.
Mr. CANADY. Okay. So this is a case in which the judicial bypass process had worked and you were simply facilitating her transportation?
Ms. RAGSDALE. That is true. As far as I know, I did nothing illegal here.
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Again, if I did have to do something illegal to support her, I would have to do it.
Mr. CANADY. If you lived in a State such as Massachusetts and such as all the other States that have parental consent laws or parental notification laws of one sort or another, which also provide the opportunity for a judicial bypass, rather than driving the young woman to another State to circumvent that law, why wouldn't you just take her, to help her get before a judge, if she felt that she couldn't talk to her parents about it?
Ms. RAGSDALE. I can assure you, I would try every option open to me. My first goal would be for her to talk to her parents. If that seemed unsafe, my next goal would be to get her the bypass that she needed.
Mr. CANADY. That is always an option. I don't really understand your opposition.
Let me back up. Basically, are you opposed to any kind of parental consent or notification law? You just have a principled objection to that?
Ms. RAGSDALE. The National Episcopal Church opposes that by resolution, and I agree with them.
Mr. CANADY. I am not asking about the National Episcopal Church. I am asking about you.
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Ms. RAGSDALE. And I agree with them. We oppose any parental consent or notification law that doesn't also make provision for nonjudicial bypass. Because we understand that some young women just are not up to maneuvering such a complicated and intimidating procedure.
Mr. CANADY. When you talk about nonjudicial bypass, what do you have in mind?
Ms. RAGSDALE. We spell out the freedom to talk to, obtain help instead, from some other responsible adult, a parent, a priest, a counselor, a teacher, a neighbor.
Mr. CANADY. Basically anybody.
Ms. RAGSDALE. That's right. In the best of all worlds, a parent, but given a choice between a parent and death, anybody.
Mr. CANADY. If you had your choice, would you prefer that there be no parental consent? Why have a mechanism like that? It becomes meaningless, really.
Ms. RAGSDALE. Yes, I would.
Mr. CANADY. I just want to be clear about that, because I think the real debate here isn't over this particular proposal. The debate is over whether parental consent as a concept is something that is worth recognizing, parental notification is something that is worth recognizing. I think we are going to find that most of the opponents of this bill are simply people that don't want any parental involvement law to be recognized or honored.
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The point was made earlier that abortion is legal. That is true. But the fact of the matter is also that parental involvement laws are legal under the court decisions. What we are trying to do through this legislation is simply ensure that these valid, constitutional laws are not circumvented the way they are currently being circumvented.
What a terrible irony that some people would advocate taking a minor across State lines for the purpose of procuring an abortion against a parent's wishes, and when that minor is injured and harmed as a consequence of that abortion procedure, and then goes to obtain medical assistance that is necessitated by the botched abortion, parental consent is required to get that medical care. For the people who can't see the irony in that set of circumstances, I would say they don't have much of a sense of irony and they can't see reality.
Ms. RAGSDALE. I certainly understand your point. I actually concur with your sentiments. The problem is just that the cost is too high. Kids die over this. The cost is too high.
Mr. CANADY. I think the evidence shows—and we have other witnesses here and other members to ask some questions, but I think the evidence shows that the cost of allowing this sort of behavior to go on without parental involvement is extraordinarily high; and that what we are really seeing is that this is a mechanism that is used to manipulate many young women, and it is used by people who have taken advantage of them and who have abused them to cover up, in many cases, the abuse and their own misdeeds.
My time has expired. I will recognize Mr. Scott.
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Mr. SCOTT. Thank you, Mr. Chairman. When you introduced Reverend Ragsdale from Arlington, she indicated it was Massachusetts. Part of her background includes graduating from Denbish High School, the same school that my counsel, Brian Woolfolk graduated from. We want to welcome Reverend Ragsdale.
Ms. RAGSDALE. Thank you.
Mr. SCOTT. Most of my questions are technical in nature and I think would probably better be addressed to some of the law professors, but I did want to ask Reverend Ragsdale a couple of questions. In States without parental consent laws and notification laws, 75 percent already talk to their parents?
Ms. RAGSDALE. Yes, sir.
Mr. SCOTT. What effect do those laws—where they do have the laws, what effect is there on the 25 percent that do not talk to their parents?
Ms. RAGSDALE. I understand that the evidence shows it to be minimal.
Mr. SCOTT. If you were to criminalize the—this language is ''knowingly transports.'' If you were to criminalize that activity, what effect would that have, do you believe, on the situation?
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Ms. RAGSDALE. I believe that as Congresswoman Lowey has said, it is effectively telling those children who for one reason or another don't feel that they can talk to their parents that they are going to be forced to go it alone, or else find someone who is willing to risk imprisonment to help them.
Mr. SCOTT. Do you think it would reduce the number of abortions?
Ms. RAGSDALE. I am afraid it wouldn't.
Mr. SCOTT. I don't have any further questions, Mr. Chairman. Thank you.
Mr. CANADY. Thank you, Mr. Scott.
The gentleman from Tennessee.
Mr. BRYANT. Thank you, Mr. Chairman. I want to thank the members of the panel. I apologize, we have got a number of different meetings scheduled.
It is ironic that as I show up at some of these meetings, I see C-SPAN and television cameras and coverage, but I come into this and I don't see coverage. I think this is a very important issue.
I have to admit, I am confounded, and I guess I need to show some restraint with the Reverend. I am incredulous at the statements that she would make here. I think we have deep, deep differences on life and those kinds of issues. I am amazed that maybe in the effort to become a martyr or something, one would come in here and say they would risk life and limb to transport young girls out of their parents' control across State lines to have an abortion, even ignoring those of us who believe you are killing a baby's life when you have an abortion, putting that aside, and then to say that you support the right for any Tom, Dick and Harry to carry this young teenage girl across State lines in an effort to cover up a pregnancy, to cover up a crime, is astounding.
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Ms. RAGSDALE. Sir, could I say that I didn't support their right to carry them across State lines to cover up a crime? I believe that would already be illegal under other provisions.
Mr. BRYANT. But in effect they would have the right to carry them across State lines.
Ms. RAGSDALE. Not to cover up a crime, I don't think. Wouldn't that already be illegal under laws that are on the books?
Mr. SCOTT. Mr. Chairman, would the gentleman yield briefly?
Mr. BRYANT. I will yield.
Mr. SCOTT. You have laws like accessory after the fact that I think would cover some of the criminal activities, and I think that is not where we need to focus. Covering up crimes, as she has indicated, probably would be covered under other laws.
I yield back. Thank you.
Mr. BRYANT. I hope the ladies that have been here that testified from the real world of experience have maximized their use of the law to—not only criminal, but civil law to sue folks for monetary damages and any other right they have under the law to enforce their own parental rights.
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I guess, if I could ask the Reverend to explain the statement, or to ask, I guess: You and I agree that we ought to have fewer unwanted pregnancies, but I am always fascinated to hear and I ask if you agree with the statement that we ought to have fewer pregnancies. I am sorry, fewer abortions. I support choice, but I support fewer abortions.
Ms. RAGSDALE. Absolutely. We certainly want as few people as possible to find themselves dealing with unplanned, unwanted pregnancies. I would hope that we would be able to work together on substantive programs that would reduce unwanted pregnancies.
Mr. BRYANT. But again, back on the issue of wanting fewer abortions, why is it you would desire fewer abortions?
Ms. RAGSDALE. Because I would desire fewer people to find themselves in a situation that needed medical resolution.
Mr. BRYANT. So you make that distinction.
I agree with you, I support the idea of fewer unwanted pregnancies. But I am still unclear why people who say they want fewer abortions—the abortion itself, the process, the procedure, the possibility—because there are experts on both sides that say when life begins. But just the remote possibility that there may be a life there, you are not willing to give that unborn child the benefit of the doubt that there may be a life there?
Ms. RAGSDALE. I consider all life sacred, including the life of a fetus. And including the life of the woman.
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Mr. BRYANT. With that, you have got the right of that child, then, that you consider sacred to survive. You have got that privacy right of that 15-year-old child, let's say, to control her own body. It seems to me the right of life, to live in this world and to enjoy the benefits of America, or any other country for that matter, would outweigh—sometimes you have competing rights and you have to weigh that 15-year-old's child right to choose.
Ms. RAGSDALE. In any ethical situation, you have competing rights, competing costs, competing goods. That is in fact, what we as people who are endowed by God with the responsibility to be moral decision-makers, that is what we face every day.
I am trying to think if there is a way I could explain why most churches in this Nation are pro-choice without going into a detailed theological argument, but I simply would have to tell you that most churches are pro-choice.
Mr. BRYANT. You are welcome to submit a statement on that to further respond, but I ask you to search your own heart and weigh those issues. That is a pretty good issue when you have got life versus a choice of privacy. I can assure you if there is a murder being committed inside someone's private home, the police have the right to intrude in that home and protect that adult life from being killed, because that is a life as opposed to violating somebody's privacy. Thank you.
Ms. RAGSDALE. We are not talking just about violating someone's privacy, sir. We are talking about protecting her life and health. I would point out to you that I don't stand here alone holding some sort of position I have drawn out of the air. I stand in the tradition of my church and of most denominations and faith groups in this country which have been pro-choice for decades.
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Mr. BRYANT. It might be helpful to this committee, too, and I would certainly be interested if you could furnish in a late filing the particular vow that you took on which you would rely to support your position.
Ms. RAGSDALE. It is in the written testimony. I didn't read it all, but it is in my full testimony.
Mr. BRYANT. Your vow?
Ms. RAGSDALE. Yes, sir.
Mr. CANADY. I will read it, if there is no objection. You said, ''I have no choice. For some years ago I stood before an altar and a bishop and the people of God and vowed to proclaim, by word and deed, the Gospel of Jesus Christ and to fashion my life in accordance with its precepts,'' and so on.
I want to thank all of you for being here. I appreciate your contribution. I particularly want to thank Crystal for being with us today. If there is no objection, if you have anything to say, we could take a moment. But if not, we thank you for taking your time to be with us. Thank you very much.
We will now move to our next panel.
Mr. SCOTT. Mr. Chairman, could I ask unanimous consent that a copy of title 18 of the U.S. Code, section 3, accessory after the fact, be copied and made a part of the record? It just says, ''Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment is an accessory after the fact,'' and then goes on to show how it is punished.
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Mr. BRYANT. Will the gentleman yield?
Mr. SCOTT. I will yield.
Mr. BRYANT. An offense against the United States, would you see that as a Federal crime?
Mr. SCOTT. We are talking about a Federal crime.
Mr. BRYANT. Anyone who commits a Federal crime?
Mr. SCOTT. This bill is a Federal crime. That is how we have jurisdiction over it.
Mr. BRYANT. Right. But that underlying crime that I am talking about is a statutory rape or whatever, that would be a State law. I would submit that would be inapplicable to the hearing today.
Mr. SCOTT. Most States would have a comparable State accessory after the fact law.
Mr. CANADY. Without objection, the material will be placed in the record.
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Mr. CANADY. We now go to our third and final panel. On the final panel today, we will begin with the testimony of Professor Teresa Collett. Professor Collett comes to us from South Texas College of Law where she specializes in family law and ethics.
Next we will hear from Professor Stephen Presser who has, on occasion, testified before this subcommittee previously. Professor Presser comes to us from the Northwestern University School of Law where he serves as the Raoul Berger Professor of Legal History.
Ms. Penny Borenstein will be next to testify. Ms. Borenstein serves as Assistant Commissioner for Child, Adolescent and Family Health for the Baltimore City Health Department.
Finally today we will hear from Mr. Robert Graci. Mr. Graci is Assistant Deputy Attorney General for Law and Appeals of the Criminal Law Division in the Office of the Pennsylvania Attorney General.
I want to thank each of you for taking the time to be with us here today. We would ask that you do your best to summarize your testimony in 5 minutes or less. Without objection, your full written statements will be made a part of the permanent record of the hearing.
Mr. Scott.
Mr. SCOTT. Mr. Chairman, Ms. Borenstein is not with us. She was not able to attend.
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Mr. CANADY. I appreciate the gentleman bringing that to my attention.
Mr. CANADY. We will begin with Professor Collett.
STATEMENT OF PROF. TERESA COLLETT, PROFESSOR OF LAW, SOUTH TEXAS COLLEGE OF LAW
Ms. COLLETT. Mr. Chairman, members of the committee, and other distinguished guests, I appreciate the opportunity to appear before the committee to testify on the Child Custody Protection Act. At the outset, I need to note that the opinions that I am about to offer and have offered in my full written testimony do not represent the opinions of my law school, South Texas College of Law, nor the university that the college is affiliated with, Texas A&M University. Rather, they are opinions I have reached after my professional study as a law professor and as an individual.
I think it is important to clarify for purposes of consideration what this legislation does not do as well as what it does do. At the outset, I think we should note that, first, this legislation does not enact a national parental consent or notification law. There is nothing in the legislation that would require any State on the basis of deliberate consideration that has failed to enact such laws to enact such laws.
Second, it does not seek to criminalize any purely intrastate activity such as that engaged in by Reverend Ragsdale if, in fact, a judicial bypass had not occurred, which it did.
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And, third, it does not seek to modify or to reverse any existing case law in the area. In fact, I would suggest that this law is consistent with and aids in the implementation of existing case law concerning the parents' right to guide minor girls in this decision.
Most recently in the Planned Parenthood v. Casey opinion, Justices O'Connor, Souter and Kennedy stated that parental consent laws are constitutional because they 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.'' These laws, when enacted by the States who have enacted them, are constitutional insofar as they contain a judicial bypass provision. This judicial bypass provision is required constitutionally for the very reasons identified by Congressman Scott and Congressman Nadler in that there are in fact a small number of girls who will not benefit from consultation with their parents. But what many States have chosen as an alternative is to ensure that those who do counsel and assist the girl with this critical decision are those that have in fact the girl's best interest at heart rather than some profit motive or desire not to be implicated in criminal activity. Therefore, it is the responsibility of the judges in that State to hear in an expedited manner any petition by a minor girl who seeks an abortion on one of two bases: number one, she is sufficiently mature to make the decision for herself; or, number two, even if the judge is convinced that the young girl is not sufficiently mature, that the abortion would in fact be in her best interest.
It has been suggested by opponents to this legislation that judicial bypass is not a safe and an effective measure to resolve these difficult problems. And yet the empirical evidence that exists on this question is to the contrary. In fact, in the District Court opinion of Hodgson v. Minnesota, the court found that only six out of 3,558 petitions for judicial bypass had been denied. In a study done by Professors Yates and Pliner, it was determined that only one out of 477 petitions in the State of Massachusetts had been denied. And most recently, the Washington Post carried a story on the newly enacted Virginia statute requiring parental notification that indicated that to date only one of 18 petitions have been denied. In fact, such proceedings are quick, expedited and most often, in fact fairly uniformly result in permission being given.
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However, Congressman Nadler did in fact refer to one of the few instances where permission was denied. He made reference to the Ohio case of In re Jane Roe I, although not by name. That has been touted in the media by opponents of this legislation as a case where judicial bypass was not granted, even though there was testimony that the girl had, quote, ''been beaten,'' close quote. An examination of the actual case on appeal, however, revealed that in a nonadversarial hearing, a hearing in which the only person to testify was the girl herself, the girl had indicated, only in response to a question by the judge, that she had been struck twice in her entire life by her father, once 2 years ago when she brought home Ds and the other time she couldn't specify, and that in fact she had had an abortion within a year prior to this particular petition. The trial judge, therefore, based upon the judge's determination that she was not sufficiently mature, she had not anticipated being able to cope with any complications of an abortion nor had she indicated an intention to use birth control following what would be her second abortion within a 1-year period. Your honors, I think that decision is quite defensible.
In addition to the fact that judicial bypass provides a safe and effective alternative to young girls who are not able to talk to parents, it provides protection. It provides protection to those girls that is sorely needed. Most recently this Congress enacted modification or amendments to the United States welfare laws. Part of the evidence they took was evidence that shows that on average, school age girl pregnancies are not the product of consensual relationships between high school students but rather are the product of acts that would constitute statutory rape. On average, it is found in the State of California with a study of over 30,000 school age pregnancies that 70 percent of those pregnancies involved a father who was 5 or more years older. In fact, the problem with teenage pregnancy is a problem of predatory practices on the part of adult men. If individuals are allowed to circumvent State parental consent and parental notification laws, just as Mrs. Farley testified, it will be possible to avoid detection of this practice, a practice that the States are well within their rights to protect the daughters of that State.
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Thank you, Congressmen. I appreciate the opportunity to testify and I appreciate that my written testimony will be admitted into the record.
Mr. CANADY. Thank you, Professor.
[The prepared statement of Ms. Collett follows:]
PREPARED STATEMENT OF PROF. TERESA STANTON COLLETT, PROFESSOR OF LAW, SOUTH TEXAS COLLEGE OF LAW
Good morning Mr. Chairman, Members of the Committee, and other distinguished guests. I am honored to have been invited to testify on the ''Child Custody Protection Act'' (H.R. 3682, the ''Act''). My testimony represents my professional knowledge and opinion as a law professor, who teaches and writes in the area of medical-legal issues. It is not intended to represent the views of my employer, South Texas College of Law, nor the views of Texas A&M University, with which the College is affiliated.
It is my opinion that the Child Custody Protection Act will significantly advance the legitimate health and safety interests of young girls experiencing an unplanned pregnancy, their parents, and those states which, after extensive deliberation, have promulgated parental involvement statutes founded upon the principle that parents should be primarily responsible to make decisions related to the medical care and treatment of their minor children.(see footnote 1)
At the outset, it is important to establish what this proposed legislation does not do. First, the Act does not establish a national requirement of parental consent or notification prior to the performance of an abortion on young girls who lack sufficient maturity to determine whether abortions are in their best interest. Second, it does not attempt to regulate any purely intrastate activities related to the procurement of abortion services.(see footnote 2) Finally, this legislation does not seek to reverse or modify any existing case law defining the ability of non-custodians to encourage, counsel, or assist young girls in obtaining secret abortions.(see footnote 3)
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What this legislation does do is build upon two of the few points of agreement in the national debate over abortion: the desirability of parental involvement in a minor's decisions about an unplanned pregnancy, and the need to protect the physical health of the pregnant girl.
There is widespread agreement that as a general rule, parents should be involved in their minor daughter's decisions to continue or terminate an unplanned pregnancy.(see footnote 4) To my knowledge, no organizations or individuals, whether abortion rights activists or pro-life advocates, dispute this point. Certainly there is an overwhelming and long-standing consensus among the American public that parents should participate in these decisions(see footnote 5)——decisions that will transform their daughters' lives, regardless of the particular decision the girl makes.
JAMA 82 (JANUARY 6 1993) (OPPOSING LAWS THAT MANDATE PARENTAL INVOLVEMENT ON THE BASIS THAT SUCH LAWS MAY EXPOSE MINORS TO PHYSICAL HARM, OR COMPROMISE ''THE MINOR'S NEED FOR PRIVACY ON MATTERS OF SEXUAL INTIMACY.'')
This consensus in favor of parental involvement is also reflected in the reported case law. In Planned Parenthood of Central Missouri v. Danforth,(see footnote 6) the first of a series of United States Supreme Court cases dealing with parental consent or notification laws, 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 to have a child.''(see footnote 7) Three years later in Bellotti v. Baird,(see footnote 8) 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.''(see footnote 9) The Bellotti Court also observed that parental consultation is particularly desirable regarding the abortion decision since, for some, the situation raises profound moral and religious concerns.(see footnote 10) More recently, in Planned Parenthood v. Casey,(see footnote 11) Justices O'Connor, Kennedy, and Souter observed that parental consent and notification laws ''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.''(see footnote 12) This line of cases clearly evidences judicial approval of the broad consensus supporting the involvement of parents in their daughters' decisions regarding an unplanned pregnancy. While courts have forbidden absolute requirements that all minors seek parental consent for abortions,(see footnote 13) they allow notification or consent statutes which contain provisions to judicially bypass parental involvement where it is found to be in the best interest of the pregnant girl.(see footnote 14)
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These legal constraints, and the range of opinion concerning the desirability and efficacy of parental notification or consent laws, have resulted in differing regulation among the states. A few states require that a minor obtain the consent of both parents, or the court, prior to obtaining an abortion.(see footnote 15) Other states require the consent of only one parent or a court.(see footnote 16) A third group of states mandates only that the parents (or parent) have notice of the minor's intent to have an abortion.(see footnote 17) Some states allow minors to obtain abortions with no evidence of parental involvement in the decision.(see footnote 18) This variety in political judgments reflects both the diverse communities that make up the United States, and the perception that, within constitutional parameters, the individual states are best left to maintain their common law role of balancing the competing interests involving parental rights, evaluation of the maturity of minors, and the regulation of health care providers. In subsequent testimony Professor Presser will address in detail how the Child Custody Protection Act serves the goal of encouraging a healthy federalism. For my purposes it is sufficient to note that differences among state law exist, and that those differences reflect a valuable commitment to self-governance at the state level.
Yet for all the good inherent in a system of diverse state regulation, the differing approaches taken by the states permits some unintended evil as well. Differing regulations allow opportunistic behavior by those who seek to avoid parental involvement,not out of concern for the well-being of the pregnant girl, but out of a desire to evade responsibility or avoid discovery of criminal acts. By transporting the pregnant girl from a state that requires parental involvement to one that has no such requirements, it is presently possible to obtain abortionservices with no knowledge on the part of the girl's parents. This evasion is troubling on two counts: First, it forecloses any attempts by the parents' to assist their daughter in her decision;(see footnote 19) and second, it deprives the girl of the protection afforded by a judicial assessment of the motivations of those urging her to obtain an abortion.(see footnote 20) It is these harms that the Child Custody Protection Act attempts to remedy.
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Opponents of this legislation have argued in the media that this act will isolate pregnant teenagers, forcing them to ''face these decisions alone, without any help.''(see footnote 21) This simply is not true. This legislation does not forbid assisting a minor in her decision concerning the continuation or termination of an unplanned pregnancy. It merely requires any person assisting a young pregnant girl to abide by the state law of the girl's residence. Instead of secreting the girl across state lines to obtain an abortion, then returning her to the very home that abortion rights activists would have us imagine as abusive and violent,(see footnote 22) the friend could either help the girl inform her parents of her condition in order to comply with the state notification or consent law, or help the girlobtain judicial approval to consent to the abortion. Both of these options remain available under the proposed Child Custody Protection Act, and both are superior to the surreptitious behavior apparently endorsed by those who oppose this legislation.
As I discussed earlier, informing the girl's parents is widely conceded to be the best option. This is true not only because of the natural bonds of love and affection that are commonly found between parent and child, but also due to the judgment and insight that more mature minds bring to problems.(see footnote 23)
Parental involvement also increases the probability that if the girl seeks an abortion, and suffers complications afterward, she will receive prompt and appropriate medical attention. At least one American court has held that a perforated uterus is a ''normal risk'' associated with abortion.(see footnote 24) Untreated, a perforated uterus may result in an infection, complicated by fever, endometritis, and parametritis.(see footnote 25) ''The risk of death from postabortion sepsis [infection] is highest for young women, those who are unmarried, and those who undergo procedures that do not directly evacuate the contents of the uterus. . . . A delay in treatment allows the infection to progress to bacteremia, pelvic abscess, septic pelvic thrombophlebitis, disseminated intravascular coagulophy, septic shock, renal failure, and death.''(see footnote 26) Without the knowledge that their daughter has had an abortion, parents are incapable of providing an adequate medical history to physicians called upon to treat any complications the girl might experience. This may delay proper diagnosis and further imperil the girl's health.
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A comparable problem exists in those cases where the girl experiences severe psychological problems as a result of an abortion.(see footnote 27) In Edison v. Reproductive Health Services,(see footnote 28) the court confronted the question of whether an abortion provider could be held liable for the suicide of Sandra, a fourteen-year-old girl, due to depression following an abortion. The girl's mother learned of the abortion only after her daughter's death. An eyewitness to Sandra's death ''testified that he saw Sandra holding on to a fence on a bridge over Arsenal Street and then jumped in front of a car traveling below on Arsenal. She appeared to have been rocking back and forth while holding onto the fence, then deliberately let go and jumped far out to the driver's side of the car that struck her. A second car hit her while she was on the ground. Sandra was taken to a hospital and died the next day of multiple injuries.''(see footnote 29)
Her mother sued the abortion provider, alleging that her daughter's death was due to the failure to obtain a psychiatric history or monitor Sandra's mental health.(see footnote 30) The court ultimately determined that Sandra was not insane at the time she committed suicide. Therefore her actions broke the chain of causation required for recovery.(see footnote 31) Yet evidence was presented that the daughter had a history of psychological illness, and that her behavior was noticeably different after the abortion.(see footnote 32) If Sandra's mother had known that her daughter had obtained an abortion, it is possible that this tragedy would have been avoided.
In those few cases where it is not in the girl's best interest to disclose her pregnancy to her parents, yet parental notification or consent is required to obtain an abortion, the girl and those who would assist her have the option of seeking a court determination of the girl's maturity to make decisions regarding her pregnancy. This is not altered by the Child Custody Protection Act.
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Opponents of the Act dismiss this ''judicial by-pass'' alternative as too complicated and intrusive to be an effective option for most young girls.(see footnote 33) Yet as described by the Nebraska Supreme Court in Orr v. Knowles the proceedings are remarkably simple.(see footnote 34)
Notwithstanding empirical evidence to the contrary, abortion rights activists also characterize the courts as ''vehemently anti-choice,'' refusing minors' request to bypass parental involvement in an arbitrary and capricious manner.(see footnote 35) Yet a survey of Massachusetts cases filed between 1981 and 1983 found that every minor that sought judicial authorization to bypass parental consent received it.(see footnote 36) A subsequent study found that orders were refused to only 1 of 477 girls seeking judicial authorization from Massachusetts courts between December 1981 and June 1985.(see footnote 37) The average hearing lasted only 12.12 minutes, and ''more than 92 percent of the hearings [were] less than or equal to 20 minutes.''(see footnote 38) Based upon a review of bypass petitions filed in Minnesota from August 1, 1981, to March 1, 1986, a federal trial court determined that of the 3,573 bypass petitions filed, six were withdrawn, nine were denied, and 3,558 were granted.(see footnote 39) Similar ease in obtaining judicial approval as an alternative to parental involvement is suggested by a recent report on the newly enacted Virginia statute requiring parental notification. Out of 18 requests for judicial bypass, ''all but one of the requests were granted eventually.''(see footnote 40) Judicial bypass procedures provide a safe and effective means of insuring the well-being of young girls seeking to abort their pregnancies.
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In its place opponents of this legislation would offer virtually no regulation, in so far as a pregnant girls can be persuaded to cross state lines to avoid parental involvement or judicial review. This ignores both the facts of the Pennsylvania case that brought this activity to the attention of the nation,(see footnote 41) and the growing body of research that shows underage pregnancy is, in large part, due to sexual misconduct by adult men.(see footnote 42) I will leave development of the facts in the Pennsylvania case to the victim and her mother, who I have been advised are scheduled to testify before this committee.
As to my second point, it is becoming increasingly clear that most underage pregnancies are the result of a lack of sexual restraint by adult men. 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.''(see footnote 43) Other studies have found that most teenage pregnancies are the result of predatory practices by men who are substantially older.(see footnote 44)
By passage of the Child Custody Protection Act, this Congress can foreclose at least one proven strategy by those men, or their accomplices, who would hide the results of the men's misdeeds. Men who engage in acts that many states classify as statutory rape will no longer be able to pressure their young victims into crossing state lines to obtain abortions without the knowledge or consent of the girl's parents, or judicial approval, when that knowledge or consent or approval is required by the state where the girl resides.
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In those few cases where the girl's parents are unable or unwilling to guide and support her during her time of decision, judicial bypass proceedings provide a quick, effective way to insure that those who would cast themselves as guardians of the girl's reproductive freedom are not in reality perpetrators of yet another type of violence against their young victims. I urge the members of this committee to vote in favor of the Child Custody Protection Act.
Thank you, Mr. Chairman, for allowing me the time to appear before the committee and to extend my remarks in the form of this written testimony.
Mr. CANADY. Professor Presser.
STATEMENT OF PROF. STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW
Mr. PRESSER. Thank you, Mr. Chairman. It is an honor to be asked to testify before the committee again. As happened last time, you took most of the great parts of my testimony in your statement, but I will repeat it, anyway.
This important bill demonstrates the constructive and necessary role Congress can play in the ongoing resolution of two of our most difficult political problems. The obvious first one is the abortion issue, but the second, equally important, is an aspect of American democracy itself, what lawyers call ''dual sovereignty'' or ''federalism.''
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When our Constitution was framed in 1787, those who drafted, debated and enacted it had no intention of reducing our country to one consolidated remote government. The Constitution created a Federal Government with limited and enumerated powers. The basic notion was, to preserve democracy, the Federal Government was not to intrude on the domestic matters which had traditionally been the prerogative of State and local governments, those closest to the people. The most important area for State and local governments was the basic law regarding the family. We have never had, as Professor Collett noted, Federal laws providing nationwide standards for child custody, divorce or even statutory rape. By allowing each State to work out its own rules in these areas, more direct democracy could be realized and the States could each serve as democratic social laboratories where different models could be tried and each State could study the results of each other's legislation.
H.R. 3682 is drafted in order to further this goal of preserving the democratic discretion of each State to support the family and to deal with the abortion issue. In Roe v. Wade, as we have noted, a majority of the Supreme Court did find that the 14th amendment should be understood as barring any State from prohibiting women from having abortions under some circumstances. But this doesn't mean that abortion is not still an issue for democratic resolution by the people of the States. In the case which is now the lodestar for the regulation of abortion that you have already heard referred to, Planned Parenthood v. Casey, the ambit for permissible State action on abortion was significantly clarified. Casey and subsequent decisions have made clear that it is permissible for States to require that minors notify or seek the consent of their parents before having abortions performed.
As you have noted, Mr. Chairman, the debate here really is about the wisdom of that legislation, but the Supreme Court has clearly indicated that this is appropriate for the States to decide. It is true that there are parental consent provisions that have judicial bypass provisions, and that they work together, but the primary purpose for parental consent or notice provisions is to reinforce family ties in these very difficult times. Professor Collett has also already noted the language in the Casey opinion that indicates the Supreme Court's recognition that States can decide that children will benefit from consultation with their parents. And children, being children, will often not realize that their parents have their best interests at heart; a State can encourage those best interests.
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Another clear point made in Casey is that the State may constitutionally choose to take a position which discourages abortion in the interest of protecting potential human life. Still another aspect of Casey and even Roe was the recognition that a State may choose to discourage abortion to protect the mother as well as the fetus. There is now strong empirical evidence of significant health risks to women, particularly young women, who undergo abortions. A State may certainly take this into account in deciding to encourage discussion of the abortion issue in families.
H.R. 3682, then, is designed simply to preserve the democratic right of the people of our individual States to decide for themselves how to consider and balance these thorny policy questions. By imposing penalties on anyone who seeks to deny a minor or her family the protection of a State's parental consent or judicial bypass provisions with regard to abortion, the Congress would reinforce federalism, would further democracy and would ensure that each State's policy aims are not frustrated.
Of course, it is not enough for this bill merely to be good policy. It must also be expressly or implicitly authorized by the Constitution. It clearly is. The interstate transportation of minors for the purposes of securing an abortion is a form of interstate commerce which the Constitution expressly empowers Congress to regulate. I believe also that the ''Necessary and Proper'' Clause would permit Congress to take steps, as H.R. 3682 does, to preserve our system of federalism and dual sovereignty inherent in the Constitution.
Finally, this legislation seeks to promote State policies with regard to the exercise and protection of the rights implicitly guaranteed by the 14th amendment's Due Process Clause. Accordingly, the 14th amendment's provision, which expressly grants Congress the power to enforce by appropriate legislation the provisions of the 14th amendment, authorizes H.R. 3682.
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For reasons that others have more fully developed, this is a very good bill. It performs a role given the Congress by the Constitution. It reinforces democracy. I recommend its passage. Thank you.
Mr. CANADY. Thank you, Professor.
[The prepared statement of Mr. Presser follows:]
PREPARED STATEMENT OF PROF. STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW
My name is Stephen B. Presser, and I am the Raoul Berger Professor of Legal History at Northwestern University School of Law. I have been teaching and writing about American legal and Constitutional history for the past twenty-four years. I am the senior author of the leading law school American Legal History casebook, the author of a monograph on modern Constitutional law, as well as the author of a treatise on shareholder liability for corporate debts and the co-author of a treatise on mergers and acquisitions. I have also written many articles on legal history, Constitutional law, and corporations. I appear at the request of the Committee to testify in favor of H.R.3682, the proposed ''Child Custody Protection Act.''
I believe that this is an important and worthwhile bill which, if passed, will be a demonstration of the constructive and necessary role the United States Congress ought to be playing in the resolution of two of our most difficult contemporary political questions. The first is the hotly contested abortion issue, and the second is perhaps the most important constitutional issue in our republic, the question of dual sovereignty or ''Federalism.''
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I'd like to address the Federalism issue first, and then move on to consider the Constitutional aspects of abortion regulation.
When our Constitution was framed in 1787, those who drafted, debated, and enacted it believed that they needed to correct some abuses of the thirteen new state governments, but they had no intention of reducing our country to one consolidated government.(see footnote 45)
The Constitution created a federal government with limited and enumerated powers, and much of the genius of that document was the means employed for ensuring that the federal government did not overwhelm the state and local governments. The system of checks and balances, whereby the three branches of the federal government restrained each other, was an important aspect of this plan, but equally important was the basic notion that the federal government was not to intrude on the domestic matters which had traditionally been the prerogative of state and local governments.(see footnote 46) Because of fears that the federal government might still overwhelm that of the states, some states qualified their ratification of the new Constitution with the insistence that it needed to be amended by a Bill of Rights, which would further insure that the federal government would be limited in scope.
Two important provisions of that Bill of Rights were the Ninth and Tenth Amendments, which provided respectively that ''The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,'' and ''The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''(see footnote 47)
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Perhaps the most important area that was believed to be appropriate for state and local governments and not for the federal government was the basic law regarding the family. We have never had, for example, federal laws providing standards for marriage or divorce, child custody, or even statutory rape. These have been matters for the governments closest to the people, on the theory that those governments could best respond to the views of the people themselves on these issues. It has also been our theory that by allowing each state to work out its own rules in these areas, the states could each serve as ''social laboratories,'' where different models could be tried and each state could study the results of each other's legislation, and could thereby improve their own systems.(see footnote 48)
''. . . the marriage relationship, being a matter as to which numerous divergent views are held in modern society, is peculiarly the sort of problem that ought to be left open for experimentation in the more or less isolated social laboratories which the 48 [now 50] states have been supposed to constitute.''
''The same ought to be said about the essentially domestic problem of abortion.'' Stephen B. Presser, Recapturing the Constitution: Race, Religion and Abortion Reconsidered 254 (Washington D.C.: Regnery Publishing Co., 1994)
H.R. 3682 is drafted in order to further this goal of preserving the discretion of each state to address an important aspect of the controversial abortion issue. I have to admit that my own view is like that of Justice Scalia and several other members of the current Supreme Court, that the entire abortion issue is probably best handled by the individual states, and that this is a paradigmatic domestic political issue best left for resolution by the governments closest to the people,(see footnote 49) but I recognize, as any student of Constitutional law must, that a majority of the Supreme Court disagrees. As this Committee is well aware, in the important Roe v. Wade case,(see footnote 50) a majority of the Supreme Court found that the Fourteenth Amendment's ''due process'' clause, which provides in pertinent part that no state shall deprive any person of ''life, liberty, or property'' without due process of law, includes within it a ''substantive'' component, which, according to Roe's majority, should be understood as barring any state from prohibiting women from having abortions under some circumstances.
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In Roe v. Wade this ''substantive'' component of the Fourteenth Amendment's ''due process'' clause, also described in that case as including a ''right to privacy,'' was held, in essence, to forbid virtually all state prohibitions on abortion during the first trimester of pregnancy,(see footnote 51) but although Roe v. Wade has never been overruled, its ''trimester'' method of regulation, and its holding that the right to choose to have an abortion was a ''fundamental freedom,'' which a state could override only for a ''compelling purpose,'' have been all but repudiated.
In the case which is now the lodestar for understanding the Supreme Court's approach to the abortion issue, Planned Parenthood v. Casey(see footnote 52), while the central holding of Roe, that the Fourteenth Amendment's due process clause included a right to privacy which included within it the freedom to seek an abortion, was expressly preserved, the ambit for permissible state regulation of abortion, and the standards to be applied in evaluating the Constitutionality of that regulation were significantly changed. Instead of declaring that the right to seek an abortion was a ''fundamental right,'' which called for a ''compelling state interest'' to regulate, the new holding was that state regulation of abortion was permissible so long as such regulation did not place an ''undue burden'' on a woman's exercise of her constitutional rights with regard to abortion.(see footnote 53)
The precise nature of these constitutional rights has never been spelled out by the Supreme Court with great clarity, but some things did emerge clearly in Casey. The most important of these, for our purposes, was the holding in Casey, and in subsequent decisions, that it was permissible for states to require that minors notify or seek the consent of their parents before having abortions performed, or, under certain circumstances, that the consent of a judge be sought in lieu of that of a parent.(see footnote 54) As the plurality said in Casey, as it upheld Pennsylvania's parental consent with judicial bypass provisions, ''Those enactments, 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.''(see footnote 55)
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Thus, one important and obvious reason for parental consent provisions in abortion laws is that a minor will ordinarily need the advice of her parents in making such an important life or death decision with regard to her unborn child. But a second reason, which might as well be frankly acknowledged, and this brings me to another clear point made in Casey, is that a state may constitutionally choose to take a position which discourages abortion, in the interest of protecting potential human life,(see footnote 56) and the state has a particularly important role to play in this regard with its children.
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. '' 'The Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.' '' Webster v. Reproductive Health Services, 492 U.S. at 511, quoting Poelker v. Doe, 432 U.S. 519, 521, 53 L. Ed. 2d 528, 97 S. Ct. 2391 (1977)). It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe's central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.
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505 U.S., at 872–873.
Equally important, perhaps, is the fact that a state might choose to discourage abortion in the interest of protecting the mother as well as the foetus. In 1973, when Roe v. Wade was decided, the court assumed that there were relatively few, if any, significant medical risks to the mother (to say nothing of the foetus) from the abortion procedure, but since that time we have learned that this assumption may have been too sanguine. There is strong empirical evidence, for example, of a linkage between breast cancer and abortion,(see footnote 57) it is now understood that there are other significant health risks to women who undergo abortions,(see footnote 58) and there is no reason why a state should not take this into account in deciding whether to encourage or restrict access to abortions, particularly for minors.
H.R. 3682 is designed simply to preserve the right of the people of our individual states to decide for themselves how to consider and balance these difficult policy questions. Even minors, the Supreme Court has told us, have some constitutional rights with regard to the seeking of an abortion, but regulation of the exercise of those rights, the Court has emphatically indicated, are an appropriate matter for the discretion of the individual states.
By imposing penalties on anyone who seeks to deny a minor or her family the protections of a state's parental consent/judicial bypass provisions with regard to abortion, as H.R. 3682 would do, the Congress would simply be reinforcing our Federalism scheme, and ensuring that each state's policy aims regarding this controversial issue are not frustrated.
As Casey teaches us, the people of each state should be able to decide for themselves what information women seeking an abortion need to know,(see footnote 59) whether they should encourage or discourage abortions, and, in particular, how they should ensure that minors within the state have the support of their families or, in some cases, a judicial officer, in dealing with this difficult, awesome, and, of course, irrevocable decision to terminate a pregnancy.
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As Justice Scalia and others have recognized, the political process of each state exists to resolve these difficult questions through the exercise of popular sovereignty, the bedrock of our entire Constitutional system. Not for nothing are the first three words of the Constitution ''We the people,'' and unless the Constitution itself expressly denies the people any discretion over a particular area it is their right, indeed, it is their duty to govern themselves regarding that issue through the legislative process. This is the most important right in the Constitution, the right of self government, for which our system of dual sovereignty exists. This Bill is an important step in reinforcing Federalism and in reinforcing self-government. It deserves to be enacted.
I have chosen, in this written submission, to address the most basic policy issue involved in the statute, but I should close with some brief remarks about how H.R. 3682 is expressly and implicitly authorized by the Constitution. The most obvious point, of course, is that the interstate transportation of minors for the purposes of securing an abortion is a form of interstate commerce which the Constitution expressly empowers Congress to regulate.(see footnote 60) While this bill would serve the noble goal of furthering dual sovereignty and individual state policies, it actually only regulates conduct which involves interstate movement, and only the national government is expressly authorized by the Constitution to address this activity. It also seems likely, however, that the ''necessary and proper'' clause would permit Congress to take steps, as H.R. 3682 does, to preserve our system of Federalism and dual sovereignty which are inherent in the structure of the document itself.(see footnote 61) Finally, it should be noted that this legislation seeks to promote state policies with regard to the exercise and protection of the rights implicitly guaranteed by the Fourteenth Amendment's due process clause (including not only the mother's right to terminate a pregnancy without ''undue burdens'' imposed by the state, but also the right Casey acknowledged of the people of the individual states to protect the health of the mother and the life and health of her unborn child). Accordingly, the Fourteenth Amendment's clause which expressly grants Congress the power to ''enforce by appropriate legislation, the provisions of [that Amendment] removes all doubt of the Constitutionality of this legislation.(see footnote 62)
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Mr. CANADY. Mr. Graci.
STATEMENT OF ROBERT GRACI, ASSISTANT DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA
Mr. GRACI. Good afternoon, Mr. Chairman, Congressman Scott and counsel. I appear before you today on behalf of Pennsylvania Attorney General Mike Fisher, who yesterday testified before the Senate Judiciary Committee on the Senate counterpart to H.R. 3682. Thank you for providing Attorney General Fisher the opportunity to comment on the Child Custody Protection Act.
Imagine that you are a divorced mother, working hard to raise your children, to ensure that they stay in school, stay away from drugs and alcohol, and learn the difference between right and wrong. You awake early one morning to find a note left by your barely teenage daughter. You know something is wrong. You look for your daughter. You call her school only to learn that she is not there. Finally you call the police. No one knows where your daughter is or what happened to her. That evening she returns home and informs you that she was driven to an abortion clinic earlier that day where her child was aborted. She is only 13. You didn't even know she was pregnant. She tells the story of how a few months ago when she was only 12 years old, the then-18-year-old man, the man you told her to keep away from, and whom you told to keep away from her, had given her alcohol, gotten her drunk and gotten her pregnant. The man's mother, after learning her son had impregnated your daughter, helped in the plan to take your daughter, to drive her to another State and to abort her unborn child, all without informing you. Parents might think that this is some sort of bad dream, but this nightmare happened in Pennsylvania to Mrs. Joyce Farley and her daughter Crystal. You have heard her sad and compelling story. How could this happen?
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In Pennsylvania, it is against the law to provide an abortion to a minor without the consent of her parent, legal guardian or a judge. But in neighboring States, like New York, neighboring to Pennsylvania, it is not. The mother of that 18-year-old, Mrs. Rosa Hartford, was later convicted of interference with the custody of children and sentenced to 1 year probation, 150 hours of community service and a $500 fine. Her lawyers appealed, challenging the constitutionality of the application of that statute under these circumstances where an abortion was involved. At the request of the county District Attorney, my office, the Office of Attorney General, stepped in to prosecute the appeal and defend the conviction.
Although the Superior Court of Pennsylvania upheld the application of the statute to these facts, the case was remanded for a new trial because of an asserted error in one of the judge's instructions to the jury. I note that I provided a detailed recitation of the facts from the Hartford trial and the legal issues involved in that case in my written materials which are being submitted.
This kind of criminal behavior must not be tolerated. That is why Attorney General Fisher supports the Child Custody Protection Act. The legislation will help us in law enforcement to protect vulnerable children by ensuring that parents have a say in their child's decision whether to have an abortion and by deterring unlawful conduct like Rosa Hartford's.
This legislation is necessary because it will clarify two legal issues raised in defense of Hartford's actions. First, H.R. 3682 will make it clear that a pregnant girl does not have a constitutional right to travel interstate to get an abortion. This will allow States to enforce their valid restrictions on abortion, such as Pennsylvania's parental consent and judicial bypass statute.
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Second, H.R. 3682 will make it clear that prohibiting an adult from taking a minor across State lines to obtain an abortion is not a burden on the right to interstate commerce, as Professor Presser has indicated. It is certainly well within the ambit of the constitutional authority of the Congress. In America today, a 13-year-old girl cannot see the popular teenage movie ''Scream'' without the consent of her parents. She cannot get an aspirin from the school nurse, go on a class trip to the zoo or get her ear pierced without the consent of her parents. That same 13-year-old girl should at least be required to consult with her parents before obtaining an abortion.
Had H.R. 3682 been in effect when the Farley family was victimized, law enforcement would have had an additional tool to ensure that parents have a say in this most personal, yet life-altering decision. That someone would take a 13-year-old girl away from her mother and without her mother's knowledge or consent to drive the girl to another State to abort her unborn child is a shocking violation of parental rights which no parent, mother or father, should be made to endure. Such actions should shock the conscience of any American. We must do what we can to ensure that a parent's right to be involved in their daughter's decision regarding abortion is protected.
The Office of Attorney General of Pennsylvania will continue to protect the rights of parents throughout Pennsylvania by defending our State's parental consent law. I hope that you will act to protect the rights of parents across the Nation by ensuring that strangers like Hartford are not allowed to violate the legal and emotional bond between a parent and his or her child.
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On behalf of Pennsylvania Attorney General Mike Fisher, I urge enactment of H.R. 3682. Thank you.
Mr. CANADY. Thank you very much.
[The prepared statement of Mr. Graci follows:]
PREPARED STATEMENT OF ROBERT A. GRACI, ASSISTANT DEPUTY ATTORNEY GENERAL OF PENNSYLVANIA
I. INTRODUCTION
Good morning Chairman Canady, Congressman Scott and distinguished members of the House Judiciary Committee, Subcommittee on the Constitution. I appear before you today on behalf of Pennsylvania Attorney General Mike Fisher. Thank you for providing me the opportunity to comment on the Child Custody Protection Act, or H.R. 3682.
II. OVERVIEW OF THE HARTFORD CASE
Imagine that you are a divorced mother working hard to raise your children—to ensure they stay in school, stay away from drugs and alcohol and learn the difference between right and wrong. You awake early one morning to find a note left by your barely teenage daughter. You know something is wrong. You check with the neighbors. You call her friends' parents. You call her school only to learn that she is not there. Finally, you call the police. No one knows where your daughter is or what happened to her.
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That evening she returns home and informs you that she was driven to an abortion clinic, earlier that day, where her child was aborted. She is only 13. You didn't even know she was pregnant. She tells the story of how a few months ago, when she was 12 years old, the then 18-year-old man she had been seeing—the man you tried to keep her from—had given her alcohol, gotten her drunk and impregnated her.
The man's stepmother, upon learning her stepson had impregnated the girl, helped to arrange a plan to take your daughter, to drive her to another state and to abort her unborn child—without informing you. Parents might think this was some sort of bad dream. But this nightmare happened in Pennsylvania—to Mrs. Joyce Farley and her daughter—and it has happened to other parents across the country.
How could this happen? In Pennsylvania, it is against the law to provide an abortion to a minor child without the consent of her parent, legal guardian, or a judge. But, in neighboring states like New York, it is not. The stepmother of that 18-year-old man, Ms. Rosa Marie Hartford, was later convicted of interference with the custody of children and sentenced to one year probation, 150 hours of community service and a $500 fine. Her lawyers appealed, challenging the constitutionality of the statute.
At the request of the county District Attorney, my office stepped in to prosecute the appeal and defend the conviction. Although the Superior Court of Pennsylvania upheld the constitutionality of the statute, the case was remanded for a new trial because of an asserted error in the judge's instructions to the jury.
It is my understanding that this tragic case—Commonwealth v. Rosa Marie Hartford—was part of the impetus for the introduction of the Child Custody Protection Act, or H.R. 3682. In many respects, that case underscores the necessity of this legislation.
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Pennsylvania, as you know, has a strict parental consent/judicial bypass provision before a child under 18 years of age may lawfully obtain an abortion. See 18 Pa.C. 3206. New York, on the other hand, has no such requirement. A recitation of the facts in Hartford's case, and the legal issues which she raised in trying to avoid her conviction, demonstrate the need for passage of H.R. 3682.(see footnote 63)
III. HARTFORD FACTS
On August 31, 1995, Crystal Lane was enrolled at Sullivan County High School. She had turned 13 on July 20, 1995. Crystal was in eighth grade. She lived at home with her mother, Joyce Farley, her mother's fiancé, and her sister, Lisa. Crystal's parents were divorced. Pursuant to the divorce decree, Ms. Farley had custody of Crystal.
Crystal left the family residence early in the morning of August 31, 1995, before her mother awoke. She left her mother a note. Receiving a note of this sort was, according to Ms. Farley, ''very odd'' for Crystal. At that point, Crystal's mother began to search for her.
In addition to looking for Crystal herself, Ms. Farley called the high school and the Pennsylvania State Police. She called the state police because she was ''very concerned'' that Crystal was not at school. Ms. Farley was distraught over not knowing where Crystal was.
Later in the morning of August 31, 1995, Ms. Farley spoke with Lisa Cox, the mother of Crystal's friend, Alana Dangle. Upon speaking with Ms. Cox, Ms. Farley learned, for the first time, ''that supposedly Crystal and Alana had gone to . . . New York or New Jersey for an abortion with a woman named Rosa.'' Before August 31, 1995, Ms. Farley did not even know that her 13-year-old daughter was pregnant. Ms. Farley did not give Crystal permission to be absent from school or to travel anywhere on August 31, 1995. She did not give anyone permission to take Crystal anywhere on that date.
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Before August 31, 1995, Ms. Farley had never met Rosa Hartford. She knew Hartford's son, Michael Kilmer.(see footnote 64) She had seen Kilmer with Crystal on a couple of occasions and told Crystal that Kilmer was too old for her and that she did not want him to come around their house. Kilmer was 18 at the time. She told Kilmer the same thing and not to call anymore.
Nonetheless, during the summer of 1995, Crystal dated Kilmer, had sex with him, and became pregnant. Crystal realized she was pregnant in early to mid-August, within a month of her thirteenth birthday. She was then two months pregnant. She told her sister, Lisa (who was then fourteen or fifteen), Lisa's boyfriend, Craig Dostick, her friends, Alana Dangle and Erin Finch, and Michael Kilmer that she was pregnant. Crystal discussed her options with Kilmer, including the possibility of an abortion. Kilmer said he would pay for the abortion. Crystal also spoke with Hartford about the situation a few days before August 31, 1995.
Melissa Hartford, Hartford's step-daughter and Mike Kilmer's step-sister, called Crystal and provided her with information about where she could get an abortion. They discussed Melissa making an appointment for Crystal at Dr. Epstein's abortion clinic in New York. Melissa made the appointment in the name of ''Crystal Hartford.'' It was planned that Kilmer would provide the money for the abortion. Melissa offered to drive Crystal to and from the abortion clinic.
On August 31, 1995, Crystal went to New York with Alana, Paul ''Butch'' Kemp, and Hartford. She left home at around 6:30 a.m. and was picked up at a prearranged location by Kent Hartford, Hartford's step-son. Either Hartford or her step-daughter, Melissa Hartford, had previously told her where to meet Kent. After Kent picked Crystal up they went to Alana's house to get her. From there they drove to Hartford's house. Hartford then drove Crystal and Alana to Paul ''Butch'' Kemp's house. Kemp drove all four to New York. Before that morning, Crystal thought that Melissa was driving her to New York. It was only that morning that she realized that Hartford was going to take her to the abortion clinic.
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Though she knew before August 31, 1995, that Crystal was going to have an abortion, Hartford never asked Crystal if her mother knew of her situation. Hartford learned that Crystal was pregnant in early August when she overheard a friend of Michael Kilmer's ask Kilmer if he had yet told his family that Crystal was pregnant. The friend urged Kilmer to tell his family of Crystal's situation. Later Kilmer told Hartford that Crystal was pregnant and that he might be the father. Hartford knew that Kilmer had had sexual relations with Crystal. Kilmer gave Hartford the money for Crystal's abortion. Hartford even admitted to the police that it was possible that Kilmer was the father of Crystal's child.
Hartford was aware of the plans for Crystal to travel to New York for an abortion before August 31, 1995. A couple of days before August 31, 1995, Hartford and her daughter, Melissa, called Paul ''Butch'' Kemp to see if they could borrow his car so that Hartford could take two of her son's friends to a clinic in New York. On August 31, 1997, Hartford arrived at Mr. Kemp's house along with Crystal and Alana and asked him to drive them to New York. He agreed. During the ride, Mr. Kemp learned he was going to an abortion clinic. When he learned that Crystal was pregnant and that she was being taken to the clinic for an abortion Mr. Kemp ''felt like getting out.'' The trip to Binghamton took approximately one hour and forty-five minute They returned from New York at approximately 5:30 p.m.
Hartford helped Crystal at the clinic. Crystal gave her last name as ''Hartford'' so the people at the abortion clinic would think she was Hartford's step-daughter. Crystal signed a document at the clinic ''Crystal Hartford.'' Hartford told the people at the clinic that she was Crystal's step-mother and signed a document to that effect.(see footnote 65) Crystal's abortion was paid for by Hartford with money she received for that purpose from her son, Michael Kilmer.(see footnote 66)
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While at the abortion clinic, Hartford received a telephone call from her step-daughter, Melissa. She advised Hartford that Crystal's mother had found out that Crystal had gone to New York to have an abortion and that Crystal's mother had called the state police. At that point, Hartford told the people at the abortion clinic that she was not Crystal's step-mother and that Crystal's real name was ''Crystal Lane.'' This occurred after Crystal had already had the abortion. After hearing from Melissa, Hartford told Crystal that her mother knew that she had gone to Binghamton, New York, to have an abortion and that her mother had called the police.
On September 4, 1995, several days after she had taken her son's minor girlfriend to New York to have an abortion, Hartford called the abortion clinic and asked the receptionist to remove her name as Crystal's step-mother from the medical record. She made this request because the police had become involved in this matter.
On these facts Hartford was convicted of violating Pennsylvania's interference with custody of children statute which provides, in pertinent part: ''A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent . . . when he has no privilege to do so.'' 18 Pa.C. 2904(a). This statute, like H.R. 3682, ''is intended to protect parental custody from unlawful interruption, even when the child is a willing participant in the interference with custody.'' Joint State Government Commission Report, Proposed Crimes Code for Pennsylvania, Comment, p. 106 (1967). Even so, the judges of the Superior Court, despite the fact that the issue was not before them, opined that this evidence was insufficient to sustain Hartford's conviction.(see footnote 67) This is perhaps the first reason why we need the ''Child Custody Protection Act.'' It would clearly proscribe the conduct at issue in Hartford's case.
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IV. HARTFORD'S LEGAL ISSUES
Hartford raised several legal challenges to her prosecution under the interference with custody of children statute. She argued that section 2904 is inapplicable where a minor has a right to self-consent, as when a minor seeks an abortion, or when a minor seeks a pregnancy test. As a further ground for dismissal of the charge, Hartford argued that section 2904 was unconstitutional as applied. She claimed that the statute ''would unduly burden a young woman's right to privacy [i.e. a girl's right to an abortion] and travel [i.e. a girl's right to travel to another state to obtain an abortion] and would impermissibly burden interstate commerce [i.e. a girl's right to travel to another state and purchase abortion services].'' She reiterated these challenges on appeal after her conviction.
The essence of Hartford's argument was that the Commonwealth loses its ability to enforce its generally applicable criminal statutes if the enforcement of those statutes impacts, in any way, on a woman's right to an abortion. In making this argument, she was concerned not with her own right to an abortion but with the rights of 13 year old Crystal Lane and other pregnant girls.
Hartford took(see footnote 68) Crystal from her mother. That 13 year old Crystal was a willing participant in the taking is, as observed above, irrelevant. Hartford unlawfully and substantially interrupted and interfered with the interest of Crystal's mother by taking Crystal for a dangerous medical procedure without her mother's knowledge or consent.
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Hartford (though her lawyers from the Center for Reproductive Law and Policy) contended that she had a constitutionally-based privilege to take Crystal to have an abortion and that, because Crystal's constitutional right to an abortion was involved, Crystal's mother did not have custody of her.
In advancing this argument, Hartford conceded that ''[a] parent's custody of a child permits the parent to decide the course of a child's medical treatment in a wide range of cases.'' She asserted, however, that such custody is not absolute and is nonexistent when a girl wishes to obtain an abortion. This position was based on a series of cases decided by the United States Supreme Court and the parental consent provision of Pennsylvania's Abortion Control Act, 18 Pa C. 3206. An examination of these cases and this statute shows that this position lacked merit, the view adopted by the Superior Court in rejecting Hartford's claim.
Hartford relied on three decisions of the United States Supreme Court in arguing that 13 year old Crystal was not in the custody of her mother for the purpose of deciding to have and having an abortion: Planned Parenthood v. Danforth, 428 U. 52, 96 Ct. 281, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 443 U. 622, 99 Ct. 3035, 61 L.Ed.2d 797 (1979); and Ohio v. Akron Center, 497 U. 502, 110 Ct. 2972, 111 L.Ed.2d 405 (1990). To be sure, these cases establish that ''the State may not impose a blanket provision . . . requiring the consent of a parent . . . as a condition for abortion on an unmarried minor. . . .'' Danforth, supra, at 74, 96 Ct. at 2843, 49 L.Ed.2d at 807. Indeed Bellotti, supra, and Akron Center, supra, along with Hodgson v. Minnesota, 497 U. 417, 110 Ct. 2926, 111 L.Ed.2d 344 (1990), and Akron v. Akron Center, 462 U. 416, 103 Ct. 2481, 76 L.Ed.2d 687 (1983), were relied upon by the Court in upholding the parental consent provision of Pennsylvania's Abortion Control Act. Planned Parenthood v. Casey, 505 U. 833, 899, 112 Ct. 2791, 2832, 120 L.Ed.2d 674, 729 (1992) (''Our cases establish, and we affirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. [citations omitted] Under these precedents . . . the one-parent consent requirement and judicial bypass procedure [provided for in the Abortion Control Act] are constitutional.'') (joint opinion of O'Connor, Souter and Kennedy).
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Though the Court struck down the parental consent provisions at issue in Danforth, Bellotti and Akron Center, its opinions, and those of its members, have regularly (and positively) identified the importance of parental involvement in a girl's decision to have an abortion. Danforth itself, while noting that ''minors . . . possess constitutional rights,'' observed that the ''Court . . . long has recognized that the State has somewhat broader authority to regulate the activities of children than adults.'' Id. at 74, 96 Ct. at 2843, 49 L.Ed.2d at 808. In Bellotti, the plurality recognized that ''the guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors. 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 minor'' Id. at 637, 99 Ct. at 3045, 61 L.Ed.2d at 809. In Akron v. Akron Center, the Court said that ''the States have a legitimate interest in encouraging parental involvement in their children's decision to have an abortion. . . .'' Id. at 427 n. 10, 103 Ct. at 2491 n. 10, 76 L.Ed.2d at 701 n. 10.
Writing for himself and Justice O'Connor in Hodgson, Justice Stevens said:
The State has a strong and legitimate interest in the welfare of its young citizens . . . [which] extends . . . to the minor's decision to terminate her pregnancy. Although the Court has held that parents may not exercise ''an absolute, and possibly arbitrary, veto'' over that decision, Danforth, 428 U. at 74, 96 Ct., at 2843, it has never challenged a State's reasonable judgment that the decision should be made after notification to and consultation with a parent.
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Hodgson v. Minnesota, supra, at 444, 110 Ct. at 2942, 111 L.Ed.2d at 366 (emphasis added). Justice Kennedy, joined by Chief Justice Rehnquist and Justices White and Scalia, has said:
'' '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.' '' Bellotti [, supra at] 640–641, 99 Ct. 3035, 3047, 61 L.Ed.2d 797 (1979) (opinion of Powell, J.) (quoting . . . Danforth, [supra at] 91, 96 Ct. 2831, 2851, 49 L.Ed.2d 788 (1976) (Stewart, J., concurring)); see also H.L. v. Matheson, 450 U. 398, 409–411, 101 Ct. 1164, 1171, 67 L.Ed.2d 388 (1981); id., at 422–423, 101 Ct. at 1177–78 (Stevens, J., concurring in judgment); Danforth, supra, 428 U. at 94–95, 96 Ct. at 2852–53 (White, J., concurring in part and dissenting in part); id., at 102–103, 96 Ct. at 2856 (Stevens, J., concurring in part and dissenting in part).
Hodgson, supra, at 480, 110 Ct. at 2961, 111 L.Ed.2d at 390 (Kennedy, J., concurring and dissenting)(emphasis added).
In his concurring opinion in Danforth, Justice Stewart, writing for himself and Justice Powell, starkly explained the need for parental help and advice for a pregnant girl observing that ''[i]t seems unlikely that [the girl] will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.'' Id., at 91, 96 Ct. at 2851, 49 L.Ed.2d at 817. See also H.L. v. Matheson, 450 U. 398, 408, 101 Ct. 1164, 1171, 67 L.Ed.2d 388, 398 (1981) (quoting Justice Stewart's Danforth concurrence and Bellotti). Justice Stewart observed:
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''The counseling . . . occurs entirely on the day the abortion is to be performed . . . It lasts for two hours and takes place in groups that include both minors and adults who are strangers to one another. . . . The physician takes no part in this counseling process(see footnote 69) Counseling is typically limited to a description of abortion procedures, possible complications, and birth control techniques
''The abortion itself takes five to seven minutes . . . The physician has no prior contact with the minor, and on the days that abortions are being performed at the [clinic] the physician, . . . may be performing abortions on many other adults and minors . . . On busy days patients are scheduled in separate groups, consisting usually of five patients . . . After the abortion [the physician] spends a brief period with the minor and others in the group in the recovery room. . . .''
Id., at 91 n. 2, 96 Ct. at 2851 n. 2, 49 L.Ed.2d at 817 n. 2.(see footnote 70)
In upholding Pennsylvania's parental consent provision the joint opinion of Justices O'Connor, Souter and Kennedy in Planned Parenthood v. Casey recognized that the Pennsylvania Abortion Control Act's informed consent provisions
have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant 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.
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Id., at 899, 112 Ct. at 2832, 120 L.Ed.2d at 727.
It was against this backdrop that Hartford's claim that Crystal's mother did not have custody over her in relation to her abortion decision had to be viewed. In Casey, the joint opinion reiterated that there is no absolute constitutional right to an abortion. The Court held that Pennsylvania's parental consent provision did not violate a girl's right to an abortion since it had an adequate judicial bypass procedure for girls who could not obtain or did not wish to obtain the consent of their parent.(see footnote 71)
The United States Supreme Court has said that States may regulate the abortion rights of girls as Pennsylvania has done in section 3206. The Court, as described above, has recognized the value of parental involvement in a girl's abortion decision. The Court's judgment that parental notification or consent requirements ''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.'' Casey, supra, at 895, 112 Ct. at 2830, 120 L.Ed.2d at 726. It is reasonable, then, to conclude that unless a State's bypass procedure is followed by a girl who wants an abortion but does not wish to inform either of her parents of her situation, the State legislature, consistent with the Due Process Clause of the Fourteenth Amendment, has determined that parental involvement in the girl's decision is important. A person such as Hartford who took the child of another parent to a distant city to obtain an abortion, circumventing the constitutionally permissible statutory requirements, interferes with the parent's custody of the girl, i.e. the ability of the girl's parent to make important medical decision for her child. Such decisions are clearly part of a parent's custody.
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Concerning the Abortion Control Act, Hartford agreed that Pennsylvania's parental consent statute is consistent with the Supreme Court cases she relies on. As previously noted, that statute provides, in pertinent part, for parental consent or a judicial bypass before a minor may obtain an abortion. 18 Pa.C. 3206.
These provisions were upheld against a challenge that they infringed upon a girl's right to an abortion protected by the Due Process Clause of the Fourteenth Amendment. Casey, supra. The Casey Court said that the Commonwealth could properly enact such a statute. The Court explained that ''States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning'' as the decision to abort a pregnancy. Id., at 873, 112 Ct. at 2818, 120 L.Ed.2d at 712 (joint opinion). The Court observed that
[w]hat is at stake is the woman's right to make the ultimate decision [to have an abortion], 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 . . . 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. See infra, at 898 [, 112 Ct. at 2832, 120 L.Ed. 2d at 715] (addressing Pennsylvania's parental consent requirement).
Id. at 877, 112 Ct. at 2821, 120 L.Ed.2d at 715.
The Abortion Control Act vested in Crystal's mother the ability to ''discuss the consequences of [Crystal's] decision [to have an abortion] in the context of the values and moral or religious principles of their family.'' That ability could be taken from her only under the circumstances described in the judicial bypass provisions of the Act, neither of which were followed. Crystal was 13 years old. Under the constitutionally permissible scheme adopted by the Pennsylvania legislature her mother's consent was required before she could obtain an abortion. Hartford's taking Crystal to an out-of-state abortion clinic so she could have an abortion while Hartford posed as Crystal's step-mother interfered with her mother's custody of Crystal.
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This was the conclusion of the Superior Court in rejecting this claim on Hartford's appeal. The Court said:
[W]e agree with [Hartford] that a minor in Pennsylvania is entitled to have an abortion without parental consent pursuant to the Abortion Control Act. However, under that law another responsible adult (i.e. a judge) will provide some oversight to that decision. Consequently, although a parent's right to make decisions for her child is tempered in the instance of abortion, at least in Pennsylvania that parent has the legitimate expectation that procedural safeguards designed to protect the minor will be observed. Therefore, section 2904 can be applied where an unauthorized adult takes a minor across the Commonwealth's border in order to evade Pennsylvania's procedural scheme and, without the consent of the parent, exercises a custodial function related to the performance of an abortion.
Commonwealth v. Hartford, slip opinion at 5–6 (footnotes omitted).
Hartford also argued that she had a privilege, deriving from the Constitution, to accompany a 13-year-old girl ''to voluntarily and lawfully obtain an abortion and does not need the consent of her parent.'' None of the cases cited by Hartford stand for this proposition.
A person might have a privilege to help a 13-year-old participate in the bypass procedure's authorized by section 3206. That was not Hartford's case, however.
It has been observed that the ''privilege'' referred to in Pennsylvania's interference with custody of children statute ''would arise chiefly from consent of the lawful custodian. Consent might be given expressly, or it might be implied from past practice. Additionally, privilege to remove a child from custody may come from court order or statutory authorization.'' ALI, Model Penal Code and Commentaries, 212.4 at 257 (1980).
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Clearly, Hartford had no privilege to take Crystal from the custody of her mother. Crystal's mother did not consent to Hartford's taking her daughter out-of-state to have an abortion. She did not even know her daughter was being taken anywhere. Her consent could not be implied from any past conduct or practice. She had never met Hartford. There was no court order or statutory authorization allowing Hartford to act. Her taking of Crystal from the custody of her mother was without privilege.
Hartford challenged the constitutionality of her prosecution under Pennsylvania's interference with custody of children statute recognizing that, in doing so under the circumstances presented, she was asserting, not her own constitutional rights, but those of others, namely: young girls who might become pregnant and who wish to obtain abortions with adult assistance. Hartford argued that she could assert these rights ''[u]nder settled principles of third party standing law.'' The Commonwealth challenged this contention. The Superior Court rejected it along with Hartford's contentions that ''application of section 2904 to [Hartford's] actions . . . violated the minor's right to privacy [i.e. right to obtain an abortion] . . . the minor's right to interstate travel . . . [and] the minor's right to engage in interstate commerce.'' Commonwealth v. Hartford, slip opinion at 2–3. The Superior Court said that these three issues could ''be considered together because they possess the common element of an attempt by [Hartford] to assert the constitutional rights of the minor.'' Id. at 3. The Court continued:
It is well established that one may not ordinarily claim standing to vindicate the constitutional rights of a third party. Barrows v. Jackson, 346 U. 249 (1953); Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89 (1972). Although this general rule may not apply where the relationship of the litigant and the third party is inextricably bound up with the activity the litigant wishes to pursue, and there exists some obstacle to the assertion of the constitutional right by the third party, Singleton v. Wulff, 428 U. 106 (1976) (plurality), in this case appellant has no standing to assert these rights, for she stands in no special or legally cognizable relationship to the minor (or individual) whose rights are being asserted. See Singleton, id. (doctor's standing to assert patient's constitutional claim was recognized by a plurality); Eisenstadt v. Baird, 405 U. 438 (1972) (teacher, who by virtue of his position and action in distributing condoms became an advocate of the rights of persons to obtain contraceptives was permitted to assert constitutional rights of those persons, especially where persons directly affected were denied a forum to assert their rights); Griswold v. Connecticut, 381 U. 479 (1965) (doctor and executive director of center which provided medical advice about contraception had standing to assert clients' constitutional rights). In none of these cited cases, nor in any other case relied upon by appellant, was the person attempting the vicarious assertion of rights an otherwise ordinary citizen desiring ''to help'' the subject person in the exercise of his or her constitutional right Additionally, under the facts of this case no constitutional right of the subject person has been abridged. The minor here at all times had available to her the right to obtain an abortion without parental consent, and the statute under which this procedure is regulated has been adjudged constitutional. See Planned Parenthood v. Casey, 505 U. 833 (1992). Thus no further attention need be addressed to these issue
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Id. at 4–5 (footnote omitted).
Though the Commonwealth argued Hartford's lack of standing to litigate these issues (and the appellate court agreed), the Commonwealth addressed the merits of these claims. (It was not known, of course, if the Court would accept the third-party standing argument.)
Hartford cited a litany of cases which establish a woman's right to an abortion in general and the abortion rights of girls in particular. She claimed that, as applied, section 2904 is unconstitutional because it impacts on the rights of girls to get an abortion. The essence of this claim is that if an act is taken in the name of or for the sake of abortion, it cannot be prosecuted without infringing on these constitutionally protected rights. That simply is not the law!
Hartford cited Danforth, Akron v. Akron Center and Bellotti for the proposition that a ''State may not impose a blanket provision . . . requiring the consent of a parent . . . as a condition for abortion of an unmarried minor. . . .'' The accuracy of this statement was not disputed by the Commonwealth. However, Hartford made the quantum leap that the principles of these cases mandate that ''[p]arents may no more exercise a veto over a young woman's decision to seek the assistance of an adult'' help that is critical if she is to effectuate her right to choose abortion—than they may veto her decision to terminate her pregnancy.'' Not surprisingly, she cited no support for this constitutional proposition.
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Though she labeled her challenge ''as applied,'' Hartford continually described hypothetical situation Hartford did not assist Crystal in effecting her rights under the Abortion Control Act. As explained above, such conduct might be privileged. Those are the actions Crystal was entitled to pursue either with or without her mother's consent. See Casey, supra; 18 PA.C. 3206(c), (d). If the bypass procedures of the Abortion Control Act were not followed, Crystal had no right to an abortion without her mother's consent. Pennsylvania has restricted her abortion right and that restriction has passed constitutional muster. Casey, supra, at 899, 112 Ct. at 2832, 120 L.Ed.2d at 727.
Hartford had no authority to evade the strictures of the Abortion Control Act. Perhaps she could have helped Crystal effectuate her rights under the Act. Hartford was not prosecuted for doing that. Instead, she was properly prosecuted for taking a 13 year old from her mother's custody and without her mother's knowledge or consent to undergo a serious medical procedure.
Prosecutions under Pennsylvania's interference with custody statute of persons who do what Hartford did would not unconstitutionally impair the abortion rights of girls. Those rights are not absolute. Doe v. Bolton, 410 U. 179, 189, 93 Ct. 739, 746, 35 L.Ed.2d 207 (1973); Roe v. Wade, 410 U. 113, 154, 93 Ct. 705, 727, 35 L.Ed.2d 147, 183 (1973); Planned Parenthood v. Casey, supra at 874, 886, 112 Ct. at 2819, 2826, 120 L.Ed.2d at 713, 719. A girl's right to abortion in Pennsylvania does not include a right to bypass the parental consent/bypass provision. Prosecuting a person for assisting a girl in doing so does not unconstitutionally impact a girl's limited abortion right. Such a prosecution would not impermissibly infringe or unduly burden a girl's right to an abortion as recognized in Pennsylvania consistent with the Constitution.
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The benefits of parental notification and consent, recognized by the Supreme Court, have been detailed above. Despite those benefits, the Supreme Court has recognized that sometimes parental involvement is not in the best interests of the pregnant girl. The Court has held that, in order to be consistent with a girl's due process rights, any state regulation requiring parental consent must allow a pregnant girl to overrule her parents' decision to refuse consent or to completely bypass her parents and demonstrate either that she is mature enough to consent herself or, if she lacks that level of maturity,(see footnote 72) to have a judge determine whether or not an abortion is in the girl's best interest See Casey, supra, at 899, 112 Ct. at 2832, 120 L.Ed.2d at 728 (citing cases). Pennsylvania's Abortion Control Act does that in a constitutionally permissible manner. Id.
Section 2904, as applied in Hartford's case, did not violate the abortion rights of pregnant girls protected by the Due Process Clause of the Fourteenth Amendment. Nor did it violate a pregnant girl's right to travel.
Hartford's argument on this issue, like the last, is best characterized as ''anything goes in the name of abortion.'' She cited absolutely no authority for the proposition that pregnant girls have a constitutionally protected right to travel interstate to get an abortion. H.R. 3682 would make this clear.
To be sure, there is a constitutional right to travel. However, the Supreme Court ''long has recognized that the State has somewhat broader authority to regulate the activities of children than of adult'' Danforth, supra, at 74, 96 Ct. at 2843, 49 L.Ed. 2d at 808. In his concurring opinion in Danforth, Justice Stevens observed:
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The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures . . . The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible.
The abortion decision is, of course, more important than the decision to attend or to avoid an adult motion picture, or the decision to work long hours in a factory. It is not necessarily any more important than the decision to run away from home or the decision to marry.
Id. at 102–103, 96 Ct. at 2856, 49 L.Ed.2d at 823–824 (Stevens, J., concurring and dissenting). See also H.L. v. Matheson, 450 U. 398, 421–422, 101 Ct. 1164, 1178–79, 67 L.Ed.2d 388, 406 (1981) (Stevens, J., concurring) (same). Children simply do not enjoy the same right to travel as do adults.
The Child Custody Protection Act would clearly eliminate this argument and would allow the States to enforce their valid restrictions on abortion. That Hartford advanced this argument shows the need for this legislation.
In her last constitutional claim, Hartford assumed that purchasing abortion services is commerce. From that assumption she argued that prosecuting an adult for interfering with the custody of a child in one state based on the facts that she took the child from her home in that state to another state to ''purchase'' an abortion for the girl without the consent or knowledge of the girl's mother impermissibly discriminates against and burdens interstate commerce in abortion services. This position is untenable.
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Section 2904 has nothing to do with interstate commerce. That Hartford took the child from Pennsylvania to New York to ''buy'' an abortion at a clinic are not elements of the Pennsylvania's offense. Section 2904 regulates conduct in Pennsylvania. The statute does not prohibit an adult from accompanying a girl to New York so that she can get an abortion. It prohibits adults from interfering in the custody of children, unless they are privileged to do so. Hartford had no such privilege.
Nonetheless, that Hartford advanced the argument which might be accepted by some other misguided court establishes the need for H.R. 3682. Assuming traveling from one state to another to obtain an abortion constitutes interstate commerce, Congress acts within its exclusive constitutional sphere when it regulates interstate commerce. By enacting the Child Custody Protection Act, Congress will assist the States in enforcing their own regulatory scheme It certainly has the constitutional authority to do so.
V. CONCLUSION
The Hartford case demonstrates the difficulties which States such as Pennsylvania encounter in trying to enforce their duly enacted law. The States are constitutionally permitted to restrict the abortion rights of a minor. As established in Casey, ''a State may require a minor seeking an abortion to obtain the consent of a parent . . . provided there is an adequate judicial bypass procedure.'' As the Supreme Court noted in H.L. v. Matheson, 450 U. 398, 411 n, 20, 101 Ct. 1104, 1172 n.20, 67 L.Ed.2d 388, 346 n.20 (1981): ''Abortion is associated with an increased risk of complication in subsequent pregnancy. The emotional and psychological effects of the pregnancy and abortion experience are markedly more severe in girls under 18 than in adult.''
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Hopefully, H.R. 3682 will deter people like Rosa Hartford from transporting young girls across State lines to avoid abortion control acts like Pennsylvania's. Indeed, this kind of criminal behavior must not be tolerated. That is why I support the Child Custody Protection Act. This legislation will help us in law enforcement protect vulnerable children, by ensuring that parents have a say in their child's decision whether to have an abortion.
This legislation is necessary because it will clarify the legal issues raised in defense of Hartford's actions, which I describe above. First, H.R. 3682 will make it clear that a pregnant girl does not have a constitutional right to travel interstate to get an abortion; this will allow states to enforce their valid restrictions on abortion. Second, H.R. 3682 will make it clear that prohibiting an adult from taking a minor across state lines to obtain an abortion is not a burden on the right to interstate commerce.
In America today, a 13-year-old girl cannot see the popular teenage movie ''Scream'' without the consent of her parents. She cannot get an aspirin from the school nurse, go on a class trip to the zoo or get her ear pierced without the consent of her parents. That same 13-year-old girl should at least be required to obtain the consent of her parents in order to get an abortion.
Had H.R. 3682 been in effect when the Farley family was victimized, law enforcement would have had an additional tool to ensure that parents have a say in this most personal, yet life-altering decision. That someone would take a 13-year-old girl away from her mother and, without her mother's knowledge or consent, drive the vulnerable girl to another state to abort her unborn child is a shocking violation of parental rights. Such actions should shock the conscience of any American.
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We must do what we can to ensure that a parent's right to be involved in their daughter's decision regarding abortion is protected. I will continue to protect the rights of parents throughout Pennsylvania by defending our state parental consent law. I hope you will act to protect the rights of parents across this nation, by ensuring that strangers like Hartford are not allowed to violate the legal and emotional bond between a parent and a child.
On behalf Pennsylvania Attorney General Mike Fisher, I urge the passage of H.R. 3682.
Thank you.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Graci, in the Hartford case, there are a lot of other things that you could have gotten her for, like accessory after the fact, so she was guilty of other crimes, even if this bill were not in effect. Is that right?
Mr. GRACI. What she was convicted of, Congressman Scott, was interference with the custody of children, which is a part of our crimes code in Pennsylvania.
Mr. SCOTT. And she could have also been charged with other crimes, like accessory after the fact?
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Mr. GRACI. I am not sure that such a statute which was part of the common law of Pennsylvania still exists with the adoption of our current crimes code. The statute that she was convicted under, I believe, was the only statute which—quite frankly, this was the first time that statute has been used in that regard. This statute, the bill H.R. 3682 which you are considering, would clearly criminalize the conduct that Ms. Hartford was engaged in.
I cannot answer your question in the affirmative, Mr. Scott.
Mr. SCOTT. Did I understand you to say or make it clear that a child could not cross State lines to evade the parental consent laws?
Mr. GRACI. That is what H.R. 3682 will do. Is that your question? I'm sorry.
Mr. SCOTT. It is my understanding that the criminalization—I think you might be able to back into that, but I think the direct language is ''whoever knowingly transports an individual,'' but it doesn't aim at the child directly. Do you have a copy of the bill?
Mr. GRACI. I didn't suggest that the child would be subject to any criminal—if that was what you heard, that is not what I meant to say. If that is what I said, I apologize.
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Mr. SCOTT. When you said it was clear that a child cannot cross State lines, that is what I heard. But that is not what you meant to say, or what you said.
Mr. GRACI. No, sir. I can check back over my prepared remarks.
Mr. SCOTT. We can just get it straight.
You don't think there is any prohibition against a child crossing State lines to evade parental consent laws? There is no prohibition in this law aiming at the child?
Mr. GRACI. No, sir.
Mr. SCOTT. Do you have conspiracy laws in Pennsylvania?
Mr. GRACI. Certainly.
Mr. SCOTT. Accessory before the fact?
Mr. GRACI. That would probably be subsumed under the general conspiracy provision.
Mr. SCOTT. How would the child not be guilty of that?
Mr. GRACI. There is certainly an argument that they would fit. But this is not a State offense; it would be a Federal offense. Quite honestly, I am not sure as to the nature of the Federal conspiracy.
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Mr. SCOTT. We have real casual conspiracy laws. If you are anywhere in the neighborhood, you are at risk under the Federal conspiracy laws. This is actually a new precedent, criminalizing something that is legal in another State.
Let me ask any of the panelists who want to comment what kind of precedents we would be setting. For example, if California wants to protect children, or even adults, from gambling and criminalizing gambling, could they make it an offense to leave California to go to Nevada to legally gamble, or to transport children under that same theory?
Ms. COLLETT. I believe that there is Federal case law on the anti-lottery act where the issue before the U.S. Supreme Court was whether or not a State could enact a law that would preclude an out-of-state advertiser advertising lotteries in their State. Of course, as you would recognize, that implicates First Amendment commercial free speech.
Mr. SCOTT. Yes, but it also implicates conduct conducted in that State. If North Carolina, for example, passed a law that you can't advertise the Virginia lottery in North Carolina, that would be one thing. But what about making it illegal to leave North Carolina to go to Virginia to buy a lottery ticket, which would be legal in Virginia?
Ms. COLLETT. Congressman, I am not up to date on Oklahoma law since I have not practiced there in the past 6 years, but I am aware that approximately 8 years ago, there was a law that did not criminalize it, it simply precluded you bringing any of the receipts, should you win, back into the State.
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Mr. SCOTT. Okay. Does anybody know if that is still on the books?
Let me ask a couple of other questions.
Ms. Collett, you talked about the Constitution. I think we are really talking policy and not Constitution on most of it, except there is one question on the constitutionality of the bill as it does not contain a health exception. How does that comport with the Supreme Court decisions if the abortion were necessary for the health of the mother, but not necessarily the life, that is to say—say, if she continues the pregnancy, she will suffer sterility?
Ms. COLLETT. Congressman Scott, I believe the exception in subsection (b) does indeed cover health, although it is not as broad as Doe v. Bolton would be. Doe v. Bolton, of course, was the companion case to Roe v. Wade. It says, ''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.''
Mr. SCOTT. You are reading that a little differently than I read it, because you put that comma before ''or'' and started physical illness as another exception. Some of us read physical illness to be part of her life was endangered by a physical disorder or physical illness as part of the life exception, not part of a physical illness exception.
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Ms. COLLETT. I understand. The comma does actually exist in the legislation, however, and so it appears to be——
Mr. SCOTT. Your reading is that physical illness would be a new exception, as a physical illness health exception?
Ms. COLLETT. Yes.
Mr. SCOTT. Which would probably a little more comply with the Constitution.
Ms. COLLETT. Yes.
Mr. SCOTT. And it would be unconstitutional without that exception; isn't that right?
Ms. COLLETT. Without the ability——
Mr. SCOTT. To have the health exception.
Ms. COLLETT. Since we are dealing with judicial bypass, I think more likely than not; but we don't have a case on that yet.
Mr. SCOTT. Do you think there would be serious constitutional implications if it didn't have a health exception?
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Ms. COLLETT. I think that physical illness encompasses the health exception that is required.
Mr. SCOTT. Okay. That is required.
Ms. COLLETT. Yes. Under Roe. But not Doe.
Mr. SCOTT. Okay. Well, that answers another question.
Mr. Chairman, are we going to have another round? If possible, I have got a couple of other quick questions I would like to ask.
Mr. CANADY. If you would like, we could. Why don't we just give you another 3 minutes?
Mr. SCOTT. Okay.
Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. SCOTT. In those States that have dual consent where the mother and the father both have to consent, the mother would be criminalized for taking the child across State lines to obtain an abortion under this law; isn't that right?
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Ms. COLLETT. In the absence of obtaining a judicial bypass?
Mr. SCOTT. Right.
Ms. COLLETT. It would appear to be the case.
Mr. SCOTT. Is there any liability for the provider in the nonresident State? Is the provider exposed to any liability?
Mr. PRESSER. This is probably a better question for Mr. Graci, but it seems to me that if it is part of a conspiracy, sure.
Mr. SCOTT. Okay. Is there any liability for having an ad like those posted over there where the ad advertises ''No waiting period'' in the out-of-state area? Do you see anything in this law that would prevent that ad from being run in Pennsylvania?
Mr. GRACI. One of the ads that is up there now, the short one in the front, that is reproduced in larger form in the back, from Hillcrest Women's Medical Center is in fact from the Harrisburg yellow pages. That is where it comes from.
Mr. SCOTT. If this bill were to pass, would there be any way that that ad could be restricted?
Mr. GRACI. To answer your question fully, Mr. Scott, I imagine that somebody could say that that was some sort of aiding and abetting, or encouraging and, perhaps, under some sort of accomplice liability or some other sort of inchoate offense; but quite frankly, I think that would be a strained reading, because what the statute actually proscribes is knowingly transporting, rather than the encouragement of the transporting. So I believe it would be strained.
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Mr. SCOTT. Let's get to the definition of ''transport.'' Would that include the taxi driver if he knew why the child was leaving the State?
Mr. GRACI. Perhaps.
Ms. COLLETT. With the intent that the individual obtain an abortion?
Mr. GRACI. It would have to fit the whole thing.
Mr. SCOTT. If the taxi driver is driving along and hears the conversation in the back seat between the child and some adult or brother or sister describing how they are having to leave, how mad they are that they have to leave the State to evade the laws of this State and how happy they will be when they get to the next State and the taxicab driver hears the whole conversation, could that taxicab driver be convicted?
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Ms. COLLETT. Congressman, that seems an awfully strained reading. With the intent that such individual obtain an abortion, I think it is unlikely that——
Mr. SCOTT. The taxicab driver is taking the person to the abortion clinic.
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Ms. COLLETT. But they did not have the intent that the person obtain an abortion, any more than the taxicab driver who brought me here to testify today necessarily was endorsing my testimony.
Mr. SCOTT. Your testimony isn't illegal.
Ms. COLLETT. That is correct.
Mr. SCOTT. I might not agree with it, but it is not illegal.
No further questions, Mr. Chairman. Thank you.
Mr. CANADY. I want to just make a general comment. It seems like, to me, that in the context of this legislation, what we are really focusing on, as the title of the legislation indicates, is the custody rights of parents. What we have seen evidence of is that there are people who will circumvent the custody rights of parents, take a child across State lines for the purpose of obtaining an abortion, but that the underlying concept here relates to the rights of the parents with respect to the custody of the child.
It seems to me that there are all sorts of practices that we would not want to support which involve the transporting of children across State lines in derogation of the custody rights of the parents with respect to the children. If it involves taking a child across State lines for some immoral purpose, to engage in some activity that the parents don't approve of, as a general rule, they shouldn't be able to take children outside of the custody, in violation of the rights of the parents, across State lines. That seems to me to be pretty elementary.
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Now, the question is, in any context, is there something extraordinary that says, although the parents do have the right of custody, and people shouldn't be taking their children places to do things that they don't have their consent for, are we going to say, in this context, we think that, notwithstanding the rights of the parents, notwithstanding the State law where the child is a resident, people have a right to go into another State to obtain an abortion? I just think that flies in the face of common sense.
Now, you can reach that conclusion if you think that parental consent laws and parental involvement laws are bad. But that is not a debate we should be having here. The people of the country overwhelmingly support parental involvement laws. The Supreme Court has recognized that they are constitutional.
Now, in light of that public support and Supreme Court endorsement of these laws, the question is, how can we make them operate most effectively, and is there a role for the Federal Government to play in that? I think we have found an example here where there is a role for the Federal Government to play, because people are circumventing those laws by going from one State to another.
We are not telling the States that don't have parental involvement laws that they have to have them. That is not what is being discussed here at all. It is not the subject. The question is, are we going to protect the rights of the parents that are recognized under the laws of the State where the parents and the children reside?
I think the answer to that should be yes. That is why I think this is important legislation that is aimed at a real abuse that exists.
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In some ways, this is very narrow legislation. All we are trying to do is protect the State laws that are on the books and the rights of the parents that are already recognized under those valid, constitutional State laws. I suggest that the people who are arguing against this bill really ought to be arguing against the underlying State laws. That is what they have got their quarrel with. They don't like the laws of those States which the courts have found to be valid and constitutional.
I would suggest that they pour their energy into trying to get those laws repealed if they think that is the appropriate policy, but that they not oppose this very sensible legislation, which is simply using the clear Federal power to support the policy of the States that has been adopted and upheld by the courts.
If any of you would like to respond or add any additional comments, now is your chance.
Mr. PRESSER. I would make just one quick comment, simply in support of what you suggested before and to build on something that Mr. Graci said: H.R. 3682 doesn't change any constitutional rights. It merely reinforces clear constitutional rights and proceeds along the lines that Casey suggests are permissible and desirable.
Ms. COLLETT. Nor is it the first time that the Federal Government has made a foray into this area, because if in fact this is not permissible, then it brings into question the Parental Kidnapping Act that has been passed by this Congress, as well as the Child Support Recovery Act, both of which are Federal laws passed to aid the States in protecting the welfare of minor children.
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Mr. GRACI. Two comments, if I might briefly, Mr. Chairman. First, the point you just made about custody.
One of the issues in Hartford was whether or not Mrs. Farley, Crystal's mother, had custody of her in the context of making the decision whether or not to have an abortion because of the constitutional cases starting with Roe and continuing on down that have recognized at least a limited right of women, as well as unemancipated girls, to have an abortion. The question was whether or not Mrs. Farley had custody.
Our court, I think appropriately so—and I detail this on pages 8 through 10 of my written submission, and I won't bore you with it now—the Superior Court in dealing with the conviction had to determine whether or not Mrs. Farley still had custody. This bill will certainly aid in resolving that. It was resolved favorably to the prosecution in the Hartford case, but the bill will assist in that.
I wanted to clarify, too, I think I found the point in my oral presentation, Mr. Scott.
Mr. CANADY. My time has expired. Without objection, I will have 3 additional minutes. Please go ahead, sir.
Mr. GRACI. What I said was, and again this is in response to an argument that was raised in the Hartford case, it was not specifically addressed in the appellate court because the court determined that Mrs. Hartford was in fact trying to raise the rights of 13-year-old pregnant girls and didn't have standing to do so. But the issue was that the application of our interference with the custody of children statute unconstitutionally impaired the right of 13-year-old girls to travel interstate to get abortions.
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This bill, and my comment, if this is what you were referring to, will make it clear that a pregnant girl does not have a constitutional right to travel interstate to get an abortion. The issue was raised. It was not specifically addressed in our intermediate appellate court. I think this will make it clear that there is no such right. And certainly it would make it clearer and establish a Federal offense that a person may not transport such a minor child for that purpose.
That was the point that I was trying to make. I apologize for any confusion that I might have caused.
Mr. CANADY. Does anyone else have an additional comment?
I want to thank you for taking the time to be with us. We appreciate your contribution to the hearing today.
The subcommittee stands adjourned.
[Whereupon, at 12:25 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
Cases evidencing the general rule that parents are legally entitled to make medical decisions on behalf of their children include Newmark v. Williams, 588 A.2d 1108 (Del. Super. Ct. 1991) (upholding parents' rejection of chemotherapy in favor of prayer treatment where survival was not assured even with medical intervention.); In re Eric B., 235 Cal Rptr. 22 (Cal. Ct. App. 1987) (requiring medical monitoring of child following court-ordered chemotherapy treatments over renewed parental objections); In re Green, 292 A.2d 387 (Pa. 1972) (dismissing court ordered medical intervention for seventeen-year-old poliomyelitis patient suffering from 94% curvature of the spine on basis that condition is not considered life-threatening); and In re Baby K, 832 F.Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d. 590 (4th Cir.), cert. denied, 115 S.Ct. 91(1994) (court rejected petition by hospital and natural father to remove anacephalic child from life support over mother's objection). See also Gina Kolata, Battle over a Baby's Future Raises Hard Ethical Issues, NY Times, Dec. 27, 1994, at A1, and Michelle O. Ray, Defying Death Sentence, Baby Ryan Heads Home, News Trib., Mar. 6, 1995, at A1 (news reports of successful effort by parents of premature handicapped infant to enjoin hospital from discontinuing dialysis without their consent).
(Footnote 2 return)
While such legislation may be a highly desirable means to promote the health and well-being of young girls confronting an unplanned pregnancy, the jurisdictional basis for federal action of this type may be limited. Cf. United States v. Lopez, 514 U.S. 549 (1995)(striking down the Gun-Free School Zones Act on the basis that it exceeded Congressional authority under the Commerce Clause).
(Footnote 3 return)
Cf. Boerne v. Flores, 117 S. Ct. 2157 (1997) (Religious Freedom Restoration Act of 1993 was unconstitutional as an intrusion into the states' retained power to regulate the conduct of their citizens, and the Court's authority to interpret the Constitution). ''When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA wasdesigned to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control.'' Id. at 117 S.Ct. 2172.
(Footnote 4 return)
''Adolescents should be encouraged to seek their parents' advice and counsel when facing difficult choices regarding abortion and other reproductive health issues.'' NARAL Publications—Factsheet: S. 1645 is a Threat to Young Women's Health (1998). ''Planned Parenthood encourages young women to involve their parents when they become pregnant and consider an abortion.'' Gloria Feldt, 'Child Custody Protection Act' Endangers Young Women, PR Newswire, May 13, 1998. ''Physicians should strongly encourage minors to discuss their pregnancy with their parents. Physicians should explain how parental involvement can be helpful and that parents are generally very understanding and supportive. If a minor expresses concerns about parental involvement, the physician should ensure that the minor's reluctance is not based on any misperceptions about the likely consequences of parental involvement.'' Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion,
(Footnote 5 return)
Polls taken from September 1981 to the most recent polls of January 1998 reflect consistently reflect over 70% of the American public support parental consent or notification laws. See, e.g., CBS News/ NY Times Poll (released Jan. 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''). See also A Statewide Survey of Voter Attitudes in California, August 1984, p.4 (Wirthlin Poll)(80% of California voters support some form of parental consent law). Other polling results are available in Westlaw, Dialog library, poll file.
(Footnote 6 return)
428 U.S. 52 (1976).
(Footnote 7 return)
Danforth, 428 U.S. at 91 (Stewart, J., concurring).
(Footnote 8 return)
Bellotti v. Baird, 443 U.S. 622, 640, (1979) (Bellotti II ) (plurality opinion).
(Footnote 9 return)
Bellotti II, 443 U.S. at 635.
(Footnote 10 return)
Bellotti II at 640–41. Accord, 443 U.S., at 657 (dissenting opinion).
(Footnote 11 return)
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
(Footnote 12 return)
505 U.S. at 895.
(Footnote 13 return)
Danforth, 428 U.S. at 74 (''We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as s. 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy.'')
(Footnote 14 return)
Lambert v. Wicklund, 520 U.S. 292 (1997).
(Footnote 15 return)
See NARAL Publications, A State-by-State Review of Abortion and Reproductive Rights (Special Edition 1998), at pp. 154–155
(Footnote 16 return)
Id.
(Footnote 17 return)
Id.
(Footnote 18 return)
Id.
(Footnote 19 return)
''These cases demonstrate a willingness to protect from unjustified state interference the parental right to structure the education and religious beliefs of one's children. Likewise, in this case we encounter a state intrusion on this parental right. Coercing a minor to obtain an abortion or to assist in procuring an abortion and to refrain from discussing the matter with the parents unduly interferes with parental authority in the household and with the parental responsibility to direct the rearing of their child. This deprives the parents of the opportunity to counter influences on the child the parents find inimical to their religious beliefs or the values they wish instilled in their children.'' Arnold v. Board of Educ. of Escambia County Ala., 880 F.2d 305 at 312–14 (11th Cir. 1989). See also Planned Parenthood Assn. of Atlanta Area, Inc. v Miller 934 F.2d 1462 (11th Cir. 1991)(state interest in family integrity and protecting adolescents); Planned Parenthood League v Bellotti, 868 F.2d 459 (1st Cir. 1989).
(Footnote 20 return)
See In re Jane Doe 1, 566 N.E.2d 1181 (Ohio 1990)(refusing to adopt specific factors for determining maturity).
(Footnote 21 return)
NARAL Publications—Factsheet: S. 1645 is a Threat to Young Women's Health (1998). See also Gloria Feldt, 'Child Custody Protection Act' Endangers Young Women, PR Newswire, May 13, 1998, ''The so-called ''Child Custody Protection Act'' sends the worst possible message to teenagers in trouble: You have to go it alone.''
(Footnote 22 return)
''Many, however, justifiably fear that they would be physically or emotionally abused if forced to disclose their pregnancy.'' Id.
(Footnote 23 return)
''The State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. That interest, which justifies state-imposed requirements that a minor obtain his or her parent's consent before undergoing an operation, marrying, or entering military service, extends also to the minor's decision to terminate her pregnancy.'' Hodgson v. Minnesota, 497 U.S. 417, 444–45 (1990) (citations omitted).
(Footnote 24 return)
Reynier v Delta Women's Clinic, 359 So.2d 733 (La. Ct. App. 1978). ''All the medical testimony was to the effect that a perforated uterus was a normal risk, but the statistics given by the experts indicated that it was an infrequent occurrence and it was rare for a major blood vessel to be damaged.'' Id. at 738. Compare Sherman v. District of Columbia Bd. of Medicine, 557 A.2d 943 (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.'' Id. at 944.
(Footnote 25 return)
Phillip G. Stubblefield and David A. Grimes, Current Concepts: Septic Abortions, New England J. Med. 310 (Aug. 4, 1994).
(Footnote 26 return)
Id.
(Footnote 27 return)
''Teenagers who do not tell their parents about their abortion have an increased incidence of emotional problems and feelings of guilt.'' Jo Ann Rosenfeld, Emotional Responses to Therapeutic Abortion, 45 Am. Fam. Physician 137 (1992). Additional sources are collected and discussed in Thomas R. Eller, Informed Consent Civil Actions for Post-Abortion Psychological Trauma, 71 Notre Dame L. Rev. 639 (1996).
(Footnote 28 return)
863 S.W.2d 621 (Mo. App. E.D. 1993).
(Footnote 29 return)
Id. at 624.
(Footnote 30 return)
Id. at 622.
(Footnote 31 return)
Id. at 628.
(Footnote 32 return)
Id. at 622–23.
(Footnote 33 return)
''For young women, it can be overwhelming and at times impossible to manage the judicial bypass procedures. Some young women cannot maneuver the legal procedures required, or cannot attend hearings scheduled during school hours. Others do not go or delay going because they fear that the proceedings are not confidential or that they will be recognized by people at the courthouse. Many young women do not want to reveal intimate details of their personal lives to strangers. The time required to schedule the court proceeding may result in a delay of a week or more, thereby increasing the health risksof the abortion.'' NARAL Publications—Factsheet: S. 1645 is a Threat to Young Women's Health (1998).
(Footnote 34 return)
''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 28–347(2).'' Orr v. Knowles, 337 N.W.2d 699 at 706 (Neb. 1983). 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 (1995) at 234, 235 (explaining Judge Moylan's decision to resign from a bench in the juvenile court he had occupied for more than twenty years) (''When the bill, taken from a Minnesota law, did get passed, it stated that at the hearing the pregnant minoris 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.'')
(Footnote 35 return)
''Some young women who manage to arrange a hearing face judges who are vehemently anti- choice and who routinely deny petitions, despite rulings by the U.S. Supreme Court that a minor must be granted a bypass if she is mature or if an abortion is in her best interests. As a result, minors in states with parental involvement laws frequently go to a neighboring state to obtain an abortion instead of trying to obtain a judicial bypass.'' NARAL Publications—Factsheet: S. 1645 is a Threat to Young Women's Health (1998).
(Footnote 36 return)
Robert H. Mnookin, Bellotti v. Baird, A Hard Case in In the Interest of Children: Advocacy, Law Reform, and Public Policy 149 at 239 (Robert H. Mnookin ed., 1985).
(Footnote 37 return)
Susanne Yates & Anita J. Pliner, Judging Maturity in the Courts: the Massachusetts Consent Statute, 78 Am. J. Pub. Health 646, 647 (1988).
(Footnote 38 return)
Id. at 648.
(Footnote 39 return)
Hodgson v. State of Minnesota, 648 F.Supp. 756 at 765 (D.Minn 1986).
(Footnote 40 return)
''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.'' Ellen Nakashima, Fewer Teens Receiving Abortions in Virginia: Notification Law to Get Court Test, Washington Post (March 3, 1998).
(Footnote 41 return)
Commonwealth v. Hartford, No. 00088PHL97 (Pa. Super. Ct. Oct. 28, 1997).
(Footnote 42 return)
Mike A. Males, Adult Involvement in Teenage Childbearing and STD, Lancet 64 (July 8,1995); Mike Males and Kenneth S.Y. Chew, The Ages of Fathers in California Adolescent Births, 1993, Am. J. Pub. Health 565 (April 1996); David J. Landry and Jacqueline Darroch Forrest, How Old Are U.S. Fathers?, Family Planning Perspectives 159 (July/August 1995).
(Footnote 43 return)
Mike A. Males, Adult Involvement in Teenage Childbearing and STD, Lancet 64 (July 8,1995) (emphasis added).
(Footnote 44 return)
Id. citing HP Boyer and D. Fine, Sexual Abuse as a Factor in Adolescent Pregnancy and Child Maltreatment, Fam. Plan. Perspectives at 4 (1992); and HP Gershenson, et al. The Prevalence of Coercive Experience Among Teenage Mothers, J. Interpers. Viol. 204 (1989).
(Footnote 45 return)
On the events that led up to the framing of the Constitution, and the intentions of the framers and the ratifying state bodies, see generally Gordon S. Wood, The Creation of the American Republic 1776–1787 (Chapel Hill: University of North Carolina Press, 1969).
(Footnote 46 return)
The best discussion of the checking and balancing structure of the Constitution, and its implementation of the notion of dual sovereignty is probably still the contemporary exposition by three of the Framers, James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (Isaac Kramnick, editor) (Harmondsworth: Penguin Books, 1987) (originally published 1787–88).
(Footnote 47 return)
U.S. Constitution, Amendments IX and X (1791).
(Footnote 48 return)
As was said in Kraskin v. Kraskin, 104 F.2d 218, 221 (D.C. Cir., 1939):
(Footnote 49 return)
See generally Planned Parenthood v. Casey, 505 U.S. 833, 980 (Scalia, J., dissenting) (''The states may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.'')
(Footnote 50 return)
Roe v. Wade, 410 U.S. 113 (1973).
(Footnote 51 return)
Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia, J. Dissenting).
(Footnote 52 return)
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
(Footnote 53 return)
For the articulation of the ''undue burden'' standard in Casey, see Id., at 874–880. While the ''undue burden'' standard as expressed in Casey appeared only to be the views of the three-person plurality, Justice Scalia predicted that ''undue burden'' would henceforward be the relevant standard, Id., at 984–995 (Scalia, J. Dissenting), and it now appears that the lower federal courts understand that the ''undue burden'' standard is the correct one to be applied in abortion cases. See, e.g. Manning v. Hunt, 119 F.3d 254, 260 (4th Cir. 1997) (''The trend does appear to be a move away from the strict scrutiny standard toward the so-called 'undue burden' standard of review.'')
(Footnote 54 return)
For Supreme Court decisions upholding such statutes see Planned Parenthood v. Casey, 505 U.S. 833, 895–896,899–900 (1992), and Lambert v. Wicklund, 117 S.Ct. 1169 (1997) and cases there cited.
(Footnote 55 return)
Planned Parenthood v. Casey, 505 U.S. 833, 895 (1997).
(Footnote 56 return)
As the plurality stated in Casey:
(Footnote 57 return)
See, e.g. Rita Rubin, ''Debating Abortion and Breast Cancer,'' U.S. News and World Report, October 21, 1996, p. 96, reporting on the Pennsylvania State University study which pooled findings from 23 studies around the world and concluded that ''having an abortion increases a woman's risk of breast cancer by 30 percent.''
(Footnote 58 return)
''Hemorrhaging, perforation or ripping of the uterus, anesthesia complications, and even death are all known risks of abortion procedures . . . the Supreme Court has recognized that '[a]bortion is associated with an increased risk of complication in subsequent pregnancies.' [H.L. v. Matheson, 450 U.S. 398, 411 n.20 (1981)] . . . [T]here is a greater risk of cervical injury associated with suction-curettage abortions (at 12 weeks gestation or earlier) performed on girls 17 or younger. . . . Girls 17 or younger also face a two and a half times greater risk of acquiring endometritis following an abortion than do women 20–29 years old.'' Federal Legislative Office of the National Right to Life Committee, ''Why we Need the Child Custody Protection Act'' (April 27, 1998), pp. 10–11 (citing medical studies).
(Footnote 59 return)
Planned Parenthood v. Casey, 505 U.S. 833, 881–887 (1992).
(Footnote 60 return)
U.S. Constitution, Art I., Section 8, clause 3.
(Footnote 61 return)
U.S. Constitution, Art. I, Section 8, clause 18.
(Footnote 62 return)
U.S. Constitution, Amendment XIV, Section 5 (1868).
(Footnote 63 return)
Hartford's case was prosecuted by the District Attorney of Sullivan County, Pennsylvania. The Pennsylvania Office of Attorney General is representing the Commonwealth in the appellate court. I personally argued the case in the Pennsylvania Superior Court, one of our intermediate appellate courts. The matter is now pending in the Pennsylvania Supreme Court where discretionary review is being sought.
(Footnote 64 return)
Hartford's son would later be convicted and sentenced on two counts of statutory rape based on his sexual activity with his then 12-year-old victim.
(Footnote 65 return)
In a statement to the police, Hartford denied telling the people at the abortion clinic that she was Crystal's step-mother or that she signed such a document.
(Footnote 66 return)
She told the police that the girls, Crystal and Alana, had given her the money for safekeeping while they were driving to New York.
(Footnote 67 return)
Hartford's conviction was not set aside for this reason since, as the Superior Court majority properly noted, the issue was not before them. Commonwealth v. Hartford, slip opinion, p.12 n.14. She was, however, awarded a new trial because of what the Superior Court concluded was an erroneous jury instruction. The Commonwealth is seeking review of that decision in the Pennsylvania Supreme Court.
(Footnote 68 return)
The Superior Court questioned if Crystal was ''taken.'' Commonwealth v. Hartford, slip opinion, p.1 n.2.
(Footnote 69 return)
The record in Hartford's case reflects the same was true for Crystal. The counseling with which she was provided at the clinic was conducted by someone other than the doctor who performed the abortion.
(Footnote 70 return)
This passage was quoted at length in the opinion announcing the judgment of the Court in Bellotti which noted that Justice Stewart's description ''underscored the need for parental involvement in minors' abortion decision.'' Id. at 641 n. 21, 99 Ct. at 3047 n. 21.
(Footnote 71 return)
Hartford also argued: ''Alternatively, because 3206 [of the Abortion Control Act] only applies to an abortion performed in Pennsylvania, a young woman may also travel to another state where she does not need consent of a parent, as Crystal Lane did here.'' No authority was cited for this proposition. The Commonwealth is aware of none.
(Footnote 72 return)
The Supreme Court has observed that ''[t]here is no logical relationship between the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion.'' H.L. v. Matheson, 450 U. 398, 407, 101 Ct. 1164, 1170, 67 L.Ed.2d 388, 397 (1981).