SPEAKERS CONTENTS INSERTS
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62–490
2000
CHILD CUSTODY PROTECTION ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H.R. 1218
MAY 27, 1999
Serial No. 16
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
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
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
May 27, 1999
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TEXT OF BILL
H.R. 1218
OPENING STATEMENT
Canady, Charles, a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Graglia, Lino A., A. Dalton Cross Professor of Law, University of Texas School of Law
Harrison, John C., Professor of Law, University of Virginia
Klein, Jonathan D., M.D., MPH, FAAP, Associate Professor, Department of Pediatrics, University of Rochester School of Medicine, on behalf of the American Academy of Pediatrics, Society for Adolescent Medicine, and Advocates for Youth
Lominick, Billie, private citizen
Roberts, Eileen, Mothers Against Minors' Abortions
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Graglia, Lino A., A. Dalton Cross Professor of Law, University of Texas School of Law: Prepared statement
Harrison, John C., Professor of Law, University of Virginia: Prepared statement
Klein, Jonathan D., M.D., MPH, FAAP, Associate Professor, Department of Pediatrics, University of Rochester School of Medicine, on behalf of the American Academy of Pediatrics, Society for Adolescent Medicine, and Advocates for Youth: Prepared statement
Lominick, Billie, private citizen: Prepared statement
Roberts, Eileen, Mothers Against Minors' Abortions: Prepared statement
APPENDIX
Material submitted for the record
CHILD CUSTODY PROTECTION ACT
THURSDAY, MAY 27, 1999
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
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Washington, DC.
The subcommittee met, pursuant to call, at 9 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, William L. Jenkins, Maxine Waters and Jerrold Nadler.
Staff present: Cathleen Cleaver, Chief Counsel; Bradley S. Clanton, Counsel; Susana Gutierrez, Clerk; and Anthony Foxx, 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. 1218, the Child Custody Protection Act.
[The bill, H.R. 1218, follows:]
106TH CONGRESS
1ST SESSION
H. R. 1218
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To amend title 18, United States Code, to prohibit taking minors across State lines in circumvention of laws requiring the involvement of parents in abortion decisions.
IN THE HOUSE OF REPRESENTATIVES
MARCH 23, 1999
Ms. ROS-LEHTINEN (for herself, Mr. BARCIA, Mr. DIAZ-BALART, Mrs. FOWLER, Mr. WELDON of Florida, Mr. MCCOLLUM, Mr. CANADY of Florida, Mr. YOUNG of Florida, Mr. GOSS, Mr. MICA, Mr. STEARNS, Mr. SCARBOROUGH, Mr. ARMEY, Mr. DELAY, Mr. WATTS of Oklahoma, Mr. HYDE, Mr. BOEHNER, Mr. CRANE, Mr. ISTOOK, Mr. PITTS, Mr. COX, Mr. BLILEY, Mr. OBERSTAR, Mr. WALSH, Mr. DAVIS of Virginia, Mr. HOEKSTRA, Mr. FORBES, Mr. LAFALCE, Mr. WOLF, Mr. LARGENT, Mr. RAHALL, Mrs. EMERSON, Mr. SMITH of New Jersey, Mr. SOUDER, Mr. HALL of Ohio, Mr. SHOWS, Mr. HUTCHINSON, Mr. SALMON, Mr. GUTKNECHT, Mr. HEFLEY, Mr. HILL of Montana, Mr. BURTON of Indiana, Mrs. MYRICK, Mr. LIPINSKI, Mr. NORWOOD, Mr. ROGAN, Mr. HUNTER, Mr. STENHOLM, Mr. FOSSELLA, Mr. BACHUS, Mr. CHAMBLISS, Mr. HILLEARY, Mr. HOSTETTLER, Mr. GOODE, Mr. RYUN of Kansas, Mr. BURR of North Carolina, Mr. DEMINT, Mr. LATOURETTE, Mr. BARRETT of Nebraska, Mr. JOHN, Mr. MCINTYRE, Mr. TIAHRT, Mr. BRYANT, Mr. SCHAFFER, Mr. TALENT, Mr. HALL of Texas, Mr. GREEN of Wisconsin, Mr. HAYWORTH, Mr. MCCRERY, Mr. LAHOOD, Mr. BERRY, Mr. ADERHOLT, Mr. SAM JOHNSON of Texas, Mr. DOYLE, Mr. PICKERING, Mr. KING, Mr. TERRY, Mr. METCALF, Mr. TANCREDO, Mr. GARY MILLER of California, Mr. LEWIS of Kentucky, Mr. CALVERT, Mr. SMITH of Michigan, Mr. PETERSON of Pennsylvania, Mr. LINDER, Mr. SESSIONS, Mr. CAMP, Mr. BARR of Georgia, Mr. POMBO, Mr. COOK, Mr. RYAN of Wisconsin, Mr. FLETCHER, Mr. SHIMKUS, Mr. KNOLLENBERG, Mr. DICKEY, Mr. ENGLISH, Mr. MCINTOSH, Mr. COBURN, Mr. EHLERS, Mr. CUNNINGHAM, Mr. RILEY, Mr. LATHAM, Mr. PORTMAN, Mr. BARTON of Texas, Mr. CHABOT, Mr. GRAHAM, Mr. JENKINS, Mr. SHADEGG, Mr. MANZULLO, Mr. KINGSTON, Mr. MCKEON, Mr. BATEMAN, Mr. BLUNT, Mr. SENSENBRENNER, Mr. GOODLATTE, Mr. BRADY of Texas, Mr. NEY, Mr. LOBIONDO, Mr. BARTLETT of Maryland, Mr. THUNE, 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 in circumvention of 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 IN CIRCUMVENTION OF 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 IN CIRCUMVENTION OF CERTAIN LAWS RELATING TO ABORTION
''Sec.
''2431. Transportation of minors in circumvention of certain laws relating to abortion.
''§2431. Transportation of minors in circumvention of certain laws relating to abortion
''(a) OFFENSE.—
''(1) GENERALLY.—Except as provided in subsection (b), whoever knowingly transports an individual who has not attained the age of 18 years across a State line, with the intent that such individual obtain an abortion, and thereby in fact abridges the right of a parent under a law requiring parental involvement in a minor's abortion decision, in force in the State where the individual resides, shall be fined under this title or imprisoned not more than one year, or both.
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''(2) DEFINITION.—For the purposes of this subsection, an abridgement of the right of a parent occurs if an abortion is performed on the individual, in a State other than the State where the individual resides, without the parental consent or notification, or the judicial authorization, that would have been required by that law had the abortion been performed in the State where the individual resides.
''(b) EXCEPTIONS.—(1) The prohibition of subsection (a) does not apply if the abortion was necessary to save the life of the minor because her life was endangered by a physical disorder, physical injury, or physical illness, including a life endangering physical condition caused by or arising from the pregnancy itself.
''(2) An individual transported in violation of this section, and any parent of that individual, may not be prosecuted or sued for a violation of this section, a conspiracy to violate this section, or an offense under section 2 or 3 based on a violation of this section.
''(c) AFFIRMATIVE DEFENSE.—It is an affirmative defense to a prosecution for an offense, or to a civil action, based on a violation of this section that the defendant reasonably believed, based on information the defendant obtained directly from a parent of the individual or other compelling facts, that before the individual obtained the abortion, the parental consent or notification, or judicial authorization took place that would have been required by the law requiring parental involvement in a minor's abortion decision, had the abortion been performed in the State where the individual resides.
''(d) CIVIL ACTION.—Any parent who suffers legal harm from a violation of subsection (a) may obtain appropriate relief in a civil action.
''(e) DEFINITIONS.—For the purposes of this section—
''(1) a law requiring parental involvement in a minor's abortion decision is a law—
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''(A) requiring, before an abortion is performed on a minor, either—
''(i) the notification to, or consent of, a parent of that minor; or
''(ii) proceedings in a State court; and
''(B) that does not provide as an alternative to the requirements described in subparagraph (A) notification to or consent of any person or entity who is not described in that subparagraph;
''(2) the term 'parent' means—
''(A) a parent or guardian;
''(B) a legal custodian; or
''(C) a person standing in loco parentis who has care and control of the minor, and with whom the minor regularly resides;
who is designated by the law requiring parental involvement in the minor's abortion decision as a person to whom notification, or from whom consent, is required;
''(3) the term 'minor' means an individual who is not older than the maximum age requiring parental notification or consent, or proceedings in a State court, under the law requiring parental involvement in a minor's abortion decision; and
''(4) the term 'State' includes the District of Columbia and any commonwealth, possession, or other territory of the United States.''.
(b) CLERICAL AMENDMENT.—The table of chapters for part I of title 18, United States Code, is amended by inserting after the item relating to chapter 117 the following new item:
''117A. Transportation of minors in circumvention of certain laws relating to abortion . . . . . . . . . . 2431.''.
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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.
Across this country a child can't even be given an aspirin at school without her parents' permission. It is not surprising then that many States have decided that a serious surgical procedure like abortion should also involve the child's parents, or in some cases a judge. In fact, over 20 States currently have in force 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 and overwhelming support for these laws, vulnerable girls are taken from their families to out-of-State abortion clinics in flagrant disregard of the legal protections that the States have provided.
Indeed studies conducted in various States demonstrate an unmistakable correlation between the number of girls seeking abortions out of State and the existence of parental consent and/or notification laws in the girls' home States. Moreover, in States requiring parental consent or notification, abortion counselors often circumvent the law by referring girls to out-of-State clinics which advertise in neighboring States that they do not require parental consent or a waiting period. This scenario fosters hasty and ill-advised decisions in which confused, frightened young girls are often coerced into having abortions by those who may not have the girl's best interests in mind. This is particularly disturbing given the fact that the majority of teenage pregnancies are caused by adult men, who obviously have a great incentive to avoid criminal liability for their misconduct.
When parents are not involved in the abortion decisions of a child, the risk to the child's health significantly increases. Only parents have knowledge of their daughter's prior medical and psychological history and would, for instance, be able to alert the abortionist to allergies to anesthesia and 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 that taking girls out of State is the only option when the girls are afraid to tell their parents about the pregnancy, but this ignores the judicial bypass option that is available for just this type of situation, the judicial bypass option which has been required by the courts.
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 the majority of cases it is not a family member who accompanies the girl for an abortion without the knowledge of her parents. Moreover, States are free to craft their parental notification and consent laws to provide that the notification or consent of a grandmother or other close adult relative is sufficient to permit a minor to have an abortion without parental involvement, and such statutes would not be covered by the legislation which is before the committee today.
Most States have not, however, chosen to allow grandmothers and other close relatives to act as surrogates for parents in the abortion context. If the minor's circumstances are such that parental involvement is not possible, the grandmother or other close relative is free to assist the minor in pursuing a judicial bypass procedure. Such relatives should follow the law, not take the minor out of State to circumvent the law.
In light of the widespread practice of circumventing parental involvement laws by transporting minors across State lines, it is entirely appropriate for Congress, with its exclusive constitutional authority to regulate interstate commerce to enact the Child Custody Protection Act. The safety of the young girls and the rights of parents demand no less.
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The gentlelady from California Ms. Waters is now recognized.
Ms. WATERS. Good morning, Mr. Chairman and our invited panelists. I want to thank you for coming this morning. Once again I am here to speak in support of a woman's right to choose and against the cumbersome interferences by those who refuse to recognize that obtaining an abortion is still legal and constitutional in this country.
Under the guise of promoting family values, some on the other side of the aisle have pushed at least 12 antichoice legislative provisions through the House committees and the floor aimed at restricting women's constitutional rights to abortion and family planning. At the same time, they have sponsored a myriad of antifamily bills aimed at cutting funding for child care, school lunch nutrition, summer youth programs, Head Start, and programs on child abuse, foster care and adoption.
Today we are faced with another bill that claims to promote family unity. However, a closer look at this bill reveals that this claim is false. The so-called Child Custody Protection Act is a thinly veiled attempt to chip away at a constitutionally protected right.
It is disingenuous to argue that this places no undue or additional burdens upon young women seeking an abortion. This statement would be laughable if not for its seriousness. This bill would federalize the bypass requirement imposed by the Casey decision, which permits minor women to obtain an abortion only if they are deemed to be reasonably mature. Under this bill, young women may now have to go before judges in possibly two different States and prove they are reasonably mature enough to exercise their constitutional right. This is a great hurdle for experienced lawyers. Now we want a young pregnant teenager to navigate through the legal system in order to exercise her constitutional right.
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This bill is unnecessary. It makes it a Federal crime to exercise one's constitutional right. In addition, 75 percent of minors under the age of 16 already involve one or both parents in their reproductive decisions. This bill will not increase parental involvement. Instead it will force scared pregnant girls to take their pregnancy into their own hands. We are risking increases in botched abortions and the certain death of some young women.
Let's stop attempting to legislate very private matters that should be left up to doctors, women and their families. I urge my colleagues on the other side of the aisle to stop pandering and to listen closely to the accounts of some of our panelists here today, Billie Lominick and Dr. Jonathan Klein, and I most certainly will vote against this bill.
Mr. CANADY. On our first panel this morning, on our first and only panel this morning, we will first hear from Ms. Eileen Roberts. Ms. Roberts is the founder of Mothers Against Minors' Abortions, an organization that educates the public and informs State legislators of the need for public policy that protects minors and the rights of their parents to be involved in the abortion decisions of their children.
Our second witness is Billie Lominick, who is from South Carolina and will share her own personal experience with the issue of teen pregnancy and abortion.
Our third witness is Lino A. Graglia, the A. Dalton Cross Professor of Law at the University of Texas School of Law. Professor Graglia received his LLB from Columbia University Law School in 1954 where he was an editor of the Law Review. He was an attorney with the U.S. Justice Department and practiced law in Washington, D.C., and New York City before joining the Texas law faculty in 1966. Professor Graglia teaches courses in constitutional law and antitrust.
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Next we will hear from Dr. Jonathan Klein, Associate Professor of Pediatrics and of Community and Preventive Medicine at the University of Rochester School of Medicine, and a representative of the Council on Governmental Affairs of the American Academy of Pediatrics. Dr. Klein received him M.P.H. from the Harvard School of Public Health in 1984 and his M.D. from the New Jersey Medical School, also in 1984. Dr. Klein began teaching at the University of Rochester in 1992.
Our final witness for this hearing is John C. Harrison, a Professor of Law at the University of Virginia Law School. Professor Harrison started his tenure at the University of Virginia in 1993 after working as Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel. Professor Harrison currently teaches in the areas of administrative law, constitutional law, and Federal courts.
I want to thank all of you for being with the subcommittee here this morning. I would ask that you do your best to summarize your testimony in 5 minutes or less. You can be guided by the light. When it is green, that means that your 5 minutes has not yet expired, but when it is red, time is up. It has not been our practice to strictly enforce the 5-minute rule, but do your best.
Without objection, your full written statements will be made a part of the permanent record of this hearing. I appreciate your being here. This is a little earlier than most hearings commence, and I appreciate your being here at this hour.
Mr. CANADY. We will begin with Ms. Roberts.
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STATEMENT OF EILEEN ROBERTS, MOTHERS AGAINST MINORS' ABORTIONS
Ms. ROBERTS. Thank you. 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 difficult time.
During my daughter's rebellion toward 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 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 illegal abortion, which my daughter was told was the best in the State of Virginia, which we discovered from a questionnaire we found under her pillow, which she failed to return to the abortion clinic.
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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 2-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 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 should know about it so this criminal can be prosecuted to the fullest extent of the law.
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 2 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.
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I am reminded of the child from New York whose 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 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 they be sent back to the abuser. This activity is contrary to the laws of this country. These girls need to be removed from such an abusive 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.
Thank you for the opportunity to share my story before this committee.
Mr. CANADY. Thank you, Ms. Roberts.
[The prepared statement of Ms. Roberts follows:]
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PREPARED STATEMENT OF EILEEN ROBERTS, MOTHERS AGAINST MINORS' ABORTIONS
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.
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.
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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.
1 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.
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 I 00 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.
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I am reminded of the child from New York who's parents were notified in time to make funeral arrangements. Mrs. Ruth Ravenella 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 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 to the abuser. This activity is contrary to the laws of this country. These girls need to be removed from such an abusive 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.
Thank you for the opportunity to share my story before this committee.
Mr. CANADY. Ms. Lominick.
STATEMENT OF BILLIE LOMINICK, PRIVATE CITIZEN
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Ms. LOMINICK. I would first like to introduce myself. I am Billie Lominick, 63 years old. I have a daughter and a grandson who I love very much. Mary became pregnant after 1 year with Tom, so I called around South Carolina to get her an abortion. No judge would hear me.
Mary was in an abusive home. She and her little brother were taken out of the home. From 1996 to 1998, they were put in an orphanage. She had abusive parents. So I called around the State to get her an abortion, and no one—no judge would hear me.
Me and Tom and Mary drove to Georgia, 3 hours, to a judge that would hear us. I could be behind bars for taking her across State lines. I don't need to be behind bars, the parents do. Please don't pass this law.
If I would not have been with her, I don't know where she would be today. She has no home.
Ms. WATERS. Ms. Lominick, would you like to take a moment and just kind of get another breath and we will come back to you?
Mr. CANADY. If you would like, we will take a brief recess. Would you like to do that? The subcommittee will stand in recess for 5 minutes.
[Recess.]
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Mr. CANADY. The subcommittee will be in order.
Ms. Lominick, you may proceed.
Ms. LOMINICK. This child has been abused so long, I don't know where to begin. She is living with me now, and she is very happy. Her daddy and mother are alcoholics and drug addicts. She is like many girls, don't need to be in a home like that, and she is very happy with me.
Ms. WATERS. Ms. Lominick, as I understand it, this young lady——
Mr. CANADY. Ms. Waters, you will have an opportunity to ask the witness questions.
Ms. WATERS. I am not going to ask questions. I am going to assist her with her testimony. She is very emotional about it. She has gone through quite a traumatic experience. She feels very strongly about it. She wants to share her story with us, and it is difficult for her. I think if we can be supportive of her telling the story, she will be able to share it with us.
I do understand that Mary is living with you now?
Ms. LOMINICK. Yes, and she is very happy.
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Mr. CANADY. Ms. Waters, we are going to proceed in regular order. You will have an opportunity to ask Ms. Lominick questions, as other Members do.
We will be happy to give you another break if you would like that.
We are going to proceed in the regular order, and you with other Members will be able to ask the witnesses questions.
Ms. WATERS. I am not asking questions now. I am going to try to assist her without interfering with your formal way of handling this committee. I want her to feel comfortable, and I want you to recognize that we have someone here who is emotional about what she has gone through, and I do not want us to be so tied to the rigid formality that we don't recognize that we can be of a little bit of assistance to her.
Mr. CANADY. Sure. I want to assist Ms. Lominick in every way possible. She is here to testify as a witness. You will have an opportunity to make your statements.
Ms. Lominick, is there anything that we can do to assist you? Would you like another break?
Ms. LOMINICK. I am fine.
Mr. CANADY. Please proceed. If you would like another break, we will be happy to afford you that opportunity.
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Ms. WATERS. She wants to talk with us. She wants to be made to feel comfortable to talk with us.
Mr. CANADY. Ms. Lominick.
Ms. LOMINICK. If Mary was not with me, I don't know where she would be. She has no home.
Ms. WATERS. What happened to her when she was 7 years old?
Mr. CANADY. Ms. Waters, I would ask that you suspend. We are going to follow the regular order. You are not going to ask questions of the witnesses out of the regular order. I understand that Ms. Lominick is upset about this, and we want to accommodate her, and we will accommodate you.
Ms. LOMINICK. Thank you.
Mr. CANADY. Would you like another break?
If it is acceptable with you, Ms. Lominick, we will go on to the next witness, and then we can come back to you after the next witness, if you think that would be helpful.
Ms. LOMINICK. That is fine.
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Mr. CANADY. Professor Graglia.
STATEMENT OF LINO A. GRAGLIA, A. DALTON CROSS PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW
Mr. GRAGLIA. Good morning. My name is Lino A Graglia, and I am the A. Dalton Cross Professor of Law at the University of Texas School of Law. I have taught constitutional law for 34 years and have written and spoken widely on the subject in books, articles in both scholarly and popular publications, and in many public forums. Federalism has been one of my principal scholarly interests.
I thank you for this opportunity to appear here today. The Child Custody Protection Act has to do with the extremely controversial and heated subject of abortion, a subject on which it is difficult to have a calm and candid discussion. I can claim no expertise on the subject of abortion—that is, the question of the extent and the manner in which the availability of abortion should be regulated—and I would have nothing to say on the subject except that it has been made, unfortunately, into a matter of constitutional law.
Roe v. Wade was wrongly decided, in my opinion, quite apart from the merits of a regime of virtually unrestricted abortion, because it violates the principles of federalism and representative self-government that are the essence of our constitutional system. Under the Federal system of government created by the Constitution, the abortion issue is very clearly an issue to be decided by the people of each State for themselves through the ordinary political process, not by unelected, life-tenured officials of the national government for the Nation as a whole. Because Roe v. Wade is grossly inconsistent with our constitutional system, anything Congress can do to move control of the issue back into the hands of the States is a move in the right direction.
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Without Roe v. Wade, there would be no Child Custody Protection Act, of course, and it is opposition to or support for Roe v. Wade that is the real basis of dispute over this act. The heart of the opposition to the act is clearly stated, I think, in the dissent to the committee report on H.R. 3682 of June 25, 1998, last year's version of this act. The dissenters objected that ''the underlying purpose of the legislation is to make it much harder and much more dangerous for young women to exercise their constitutional right to obtain a safe and legal abortion.'' That was the crucial central objection.
Candor compels me to admit that there is an element of truth in that statement. While it is improper, indeed malicious, to suggest that proponents of the act wish to make abortion more dangerous, it is true that they seek to make abortion less frequent and, therefore, to make it harder to obtain. It is equally true, however, that the real purpose of the opponents of the act is simply to maintain or restore a regime of virtual abortion on demand. Although they purport to see many objections to the act, most of them untenable, their real objection is simply they do not wish to see any impediment put in the way of the availability of abortion.
There is, therefore, a certain futility in any attempt to respond to most of the arguments of the opponents of the act. The dissenters to the committee report are much too able a group of people, I think, for me to take seriously their argument, for example, that the act is objectionable because it might subject bus drivers and taxi drivers to liability. I can assure them there is no basis for this fear, but pointing out that the argument is ludicrous, that the bus and taxi drivers would just be doing their jobs, would surely serve no purpose except to cause opponents to come up with some other argument, perhaps even more ludicrous.
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The primary purpose of the act, as the 1998 committee report stated, is ''to protect the right of parents to be involved in the medical decisions of their minor daughters.'' It seems to me that that is, in fact, what the act does, and all it does, and that it is, therefore, constitutionally and legally unobjectionable.
What the opponents of the act really object to is not that the act protects this parental right, but the fact that there is such a right, because such a right can present an impediment to the unrestricted availability of abortion. The dissenters assert that the act ''raises a number of serious, if not fatal, constitutional concerns'' because it ''appears to abrogate'' constitutional abortion rights.
As Professor Stephen Presser pointed out to the committee last year, however, it now appears that the constitutional right as currently defined by the Supreme Court is not so broad as to preclude all parental notification and consent requirements. In any event, the act does not purport to either increase or diminish the abortion right, whatever its extent. It operates only to protect parental notification and consent rights that have been established by the Court.
It is my opinion that the present Supreme Court is not likely to hold the act inconsistent with the abortion right as currently defined in Planned Parenthood v. Casey. Further, contrary to the opinion of Professor Laurence Tribe, I do not believe that the act is inconsistent with constitutional principles of federalism. The act is clearly within the legislative authority of Congress, as I think Professor Harrison will speak to further, so I will skip that.
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Those who, like the committee dissenters and Professor Tribe and the ACLU, favor unrestricted abortion and therefore oppose parental notification and consent rights may properly oppose the act on the ground that it seeks to make such rights more effective. The opponents may not, however, attempt to bolster their opposition to this act by purporting to find constitutional objections.
Finally, it is strange to hear the dissenters complain that the act would do nothing to resolve the problems of dysfunctional families or the problem of teenage pregnancy. In this the dissenters are correct; the act has a very limited scope and purpose. If the dissenters think they have answers to those problems, however, it would be good to see them propose and defend them with the same energy and passion that they have devoted to defeating a measure seeking to defend parental rights. Thank you.
Mr. CANADY. Thank you, Professor.
[The prepared statement of Mr. Graglia follows:]
PREPARED STATEMENT OF LINO A. GRAGLIA, A. DALTON CROSS PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW
My name is Lino A. Graglia, and I am the A. Dalton Cross Professor of Law at the University of Texas School of Law. I have taught constitutional law for 34 years and have written and spoken widely on the subject in books, articles in both scholarly and popular publications, and in many public forums. Federalism has been one of my principal scholarly interests.
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The Child Custody Protection Act has to do with the extremely controversial and heated subject of abortion, a subject on which it is difficult to have a calm and candid discussion. I can claim no expertise on the subject of abortion—that is, the question of the extent and manner in which the availability of abortion should be regulated—and would have nothing to say on the subject except that it has been made, quite wrongly, into a matter of constitutional law. Roe v. Wade was wrongly decided, in my opinion, quite apart from the merits of regime of virtually unrestricted abortion, because it violates the principles of federalism and representative self-government that are the essence of our constitutional system. Under the federal system of government created by the Constitution, the abortion issue is very clearly an issue to be decided by the people of each state for themselves through the ordinary political process, not by unelected, life-tenured officials of the national government for the nation as a whole. Because Roe v. Wade is grossly inconsistent with our constitutional system, anything Congress can do to move control of the issue back into the hands of the states is a move in the right direction.
Without Roe v. Wade, there would be no Child Custody Protection Act, and it is opposition to or support for that decision that is the real basis of the dispute over the Act. The heart of the opposition to the Act is clearly stated in the dissent to the Committee Report on H.R. 3682, June 25, 1998, last year's version of the Act. The dissenters object that ''the underlying purpose of the legislation is to make it much harder and much more dangerous for young women to exercise their constitutional right to obtain a safe and legal abortion.'' (p. 34) Candor compels me to admit that there is an element of truth in that statement. While it is improper, indeed malicious, to suggest that proponents of the Act wish to make abortion more dangerous, it is true that they seek to make abortion less frequent and therefore to make it harder to obtain. It is equally true, however, that the real purpose of the opponents of the Act is simply to maintain or restore a regime of virtual abortion on demand. Although they purport to see many objections to the Act, most of them untenable, their real objection is simply that they do not wish to see any impediment put in the way of the availability of abortion.
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There is, therefore, a certain futility to any attempt to respond to most of the arguments of the opponents of the Act. The dissenters to the Committee Report are much too able a group of people, I think, for me to take seriously their argument, for example, that the Act is objectionable because it might subject bus drivers and taxi drivers to liability. I can assure them that there is no basis for this fear, but pointing out that the argument is ludicrous—that the bus and taxi drivers would just be doing their jobs—would surely serve no purpose except to cause opponents to come up with some other argument perhaps even more ludicrous.
The primary purpose of the Act, as the 1998 Committee Report stated, is ''to protect the right of parents to be involved in the medical decisions of their minor daughters.'' (p. 3) It seems to me that that is in fact what the Act does and all it does, and that it is therefore constitutionally and legally unobjectionable. What the opponents of the Act really object to is not that the Act protects this parental right, but the fact that there is such a right, because such a right can present an impediment to the unrestricted availability of abortion. The dissenters assert that the Act ''raises a number of serious, if not fatal, constitutional concerns'' because it ''appears [to] . . . abrogate[ ]'' (p. 36) constitutional abortion rights. As Professor Stephen Presser pointed out to the Committee last year, however, it now appears that the constitutional abortion right as currently defined by the Supreme Court is not so broad as to preclude all parental notification and consent requirements. In any event, the Act does not purport to either increase or diminish the abortion right, whatever its extent; it operates only to protect the parental notification and consent rights that have been established by Court. It is my opinion that the present Supreme Court is not likely to hold the Act inconsistent with the abortion right as currently defined in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
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Further, contrary to the opinion of Professor Laurence Tribe (p. 37), I do not believe that the Act is inconsistent with ''constitutional principles of federalism.'' The Act is clearly within the legislative authority of Congress in that it is well established that Congress's commerce power includes the power to regulate movement, including the movement of persons, from state to state. On the contrary, the Act furthers the principle of federalism to the extent that it reinforces or makes effective the very small amount of policymaking authority on the abortion issue that the Supreme Court, an arm of the national government, has permitted to remain with the states.
Those who, like the Committee dissenters, Professor Laurence Tribe, and the ACLU, favor unrestricted abortion and, therefore, oppose parental notification and consent rights, may properly oppose the Act on the ground that it seeks to make such rights more effective. They may not, however, validly attempt to bolster their opposition to the Act by purporting to find constitutional objections.
Finally, it is strange to hear the dissenters complain that the Act would do nothing to ''resolve the problems of dysfunctional families'' or the problem of teenage pregnancy (pp. 37–38). In this the dissenters are correct, the Act has a very limited scope and purpose. If the dissenters think they have answers to those problems, however, it would be good to see them propose and defend remedies with the same energy and passion that they have devoted to defeating a measure seeking to defend parental rights.
Mr. CANADY. Mrs. Lominick, we can go back to your testimony now, or if it is acceptable to you during the questioning period, we will give Ms. Waters some additional time, and you can engage in question and answer. If that is acceptable to you, I think that is acceptable to Ms. Waters. If you would like to resume now, we will be happy to have you do that.
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Ms. LOMINICK. I would just like to tell you about Mother's Day. We was in church. The whole service she wasn't crying because she wanted to see her mother, she was crying because her mother didn't love her. And if I had not helped this child, what would she have done? And there are plenty more like her.
She is living with me now, and she is happy.
[The prepared statement of Ms. Lominick follows:]
PREPARED STATEMENT OF BILLIE LOMINICK, PRIVATE CITIZEN
Good morning, my name is Billie Lominick and I live in Newbury, South Carolina. In 1990, after 33 years of marriage, I lost my husband Bennie to leukemia. Together, Bennie and I were blessed to see our child grow into a devoted wife and loving mother to our only grandson, ''Tom.''
My husband loved Tom with all his heart, as I do. He's our only grandson, and is such a good boy. Tom was Bennie's whole life, and I know he would have been so proud to watch him develop into the gentleman he has become. About a year ago, Tom started dating his high school sweetheart, ''Mary.''
Tom's parents and I immediately fell in love with Mary. She is a sweet girl, and it has broken our hearts to hear about all that she and her younger brother have been through. With a great deal of courage, they have managed to survive living with an abusive mother and stepfather.
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On Christmas Day of 1996, social services removed both children from their home for one year as a result of their parents' physical and emotional abuse, which included sexual abuse. The children were sent to an orphanage in a town an hour away. The orphanage had regularly scheduled visitation days for the parents. I'll never forget Mary telling us that her parents only came to visit her a handful of times. I still don't understand how parents could treat their children that way.
After Mary's parents had attended a few ''parenting classes'' and Alcoholics Anonymous meetings, Mary and her brother were returned to their home. While the sexual abuse did stop, both parents continued to use drugs and alcohol, frequently running into trouble with the law.
When Tom and Mary started dating, we didn't hesitate to welcome her into our family. She was facing so much at home, and did not have any other relatives in town. Tom's parents and I gladly became a support system for her.
Mary and Tom discovered this past January that Mary was pregnant. Mary wasn't feeling well, so she and Tom and her mother had gone together to the doctor for a check-up. The doctor told them that Mary was pregnant. Within a few days, Tom's mother and I also knew. Together, we all went with Mary when she had her ultrasound.
After taking a few days to think things over, Tom and Mary decided that they just weren't ready to become parents. They both wanted to finish school 5 and felt that they didn't yet have the resources to raise a child.
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When Tom and Mary told us about their decision to have an abortion, we supported their choice. His parents and I felt that this was their decision to make. We also thought they were too young to bring a child into the world. Mary's parents, however, had a very different reaction to the news. Mary's stepfather hit her in the face, and both parents violently opposed the abortion. Scared to death by this latest abuse, Mary decided to move out of her parents' house. I knew that I could provide a stable, loving home for her, so I asked her to move in with me.
Three days after Mary began living with me, her stepfather came looking for her. He literally tried to beat the door down to get to Mary. We called the police, and that same day a warrant was issued for his arrest.
Tom and his mother began contacting clinics in South Carolina, who stated that Mary needed her parent's consent in order to have an abortion. We knew that her parents would not give their permission, so we began calling clinics in North Carolina. It was a clinic staff member in North Carolina who told us that there was an alternative to parental consent. She said that Mary could go before a judge and explain the situation, and that he could grant her request for an abortion.
We made more phone calls, and were only able to find two courts in our whole state that would take judicial bypass cases. The closest judge who would hear a petition was over an hour from our home. Mary was determined to get the bypass, so we prepared for the hearing. Our hopes were dashed, however, when we learned that the judge had announced only a month earlier that the court would only take cases from minors residing within that county.
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Since we had nowhere else to turn in South Carolina, we called more clinics in North Carolina and also called clinics in Georgia. Finally, we were able to locate a clinic in Georgia that could help Mary. While Georgia does have a parental notification requirement, we were able to find a judge who was willing to hear judicial bypass cases. We worked with the clinic to arrange the bypass hearing, and finally were able to schedule Mary's appointment.
After days of feeling as though we had no options, and that judges and lawyers just didn't care about teenagers like Mary, we prepared for the three-hour drive to Georgia. Tom wanted to take Mary, but I didn't like the thought of the two of them traveling all that way alone. I decided to take time off from work and go with them. We made the trip together.
Mary went before a judge in Atlanta, and was given permission for her abortion. However, she did not meet the requirements of South Carolina's parental consent law before we went to Georgia. Under the law you are considering, I would have been sent to jail for helping Mary go to Georgia for her abortion. I would have been punished for helping her when she had nowhere else to turn. I would have been punished for seeing to it that my grandson and Mary got to Atlanta and home again safely.
Mary is still living with me. She had no complications from the abortion, and feels better now than she has ever felt in her whole life. She has just finished her sophomore year of high school, and is looking forward to finishing school in two years and getting a job. I think about this law, and wonder if I was sent to jail for taking Mary to Georgia, who would be taking care of her now? It's frightening to me to realize that abusive parents could have more of a say in their child's life than a grandmother like me who loves her very much. I shouldn't be behind bars - her abusive parents should.
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I hope that you will see how wrong this law is, and how much it would hurt families like ours. I hope that you will not make our lives any more difficult than they already are. Please, think of the other girls like Mary who are out there and vote against this bill not for me, but for them.
Thank you.
Mr. CANADY. Ms. Lominick, what we will do is proceed in the way that I suggested earlier if that is all right with you. Is that acceptable?
Mr. CANADY. Okay, we will now go to Dr. Klein.
STATEMENT OF JONATHAN D. KLEIN, M.D., MPH, FAAP, ASSOCIATE PROFESSOR, DEPARTMENT OF PEDIATRICS, UNIVERSITY OF ROCHESTER SCHOOL OF MEDICINE, ON BEHALF OF THE AMERICAN ACADEMY OF PEDIATRICS, SOCIETY FOR ADOLESCENT MEDICINE, AND ADVOCATES FOR YOUTH
Mr. KLEIN. Good morning, Mr. Chairman, and members of the committee. I am Dr. Jonathan Klein, and I am here on behalf of the American Academy of Pediatrics and also the Society for Adolescent Medicine and Advocates for Youth.
I am a practicing pediatrician and associate professor in the Department of Pediatrics at the University of Rochester School of Medicine. For over 15 years I have provided comprehensive medical care to adolescents and their families. Within organized medicine and other service organizations, I have served on national, regional and local committees on issues regarding adolescents and their health and have conferred with many colleagues across the Nation on these very tough issues.
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Mr. Chairman, it from this perspective and perhaps most importantly as a parent that I am here to express our concerns about H.R. 1218, the Child Custody Protection Act. I would like to thank the committee for the opportunity to present a statement and thank you for allowing the written statement to be entered into the record.
I am going to focus my remarks on three areas: the importance of confidential health care for adolescents, and role of parents and other adults in helping adolescents in crisis, and the issue of States and parents' rights.
First of all, with respect to confidentiality, the American Academy of Pediatrics believes that parents should be involved and responsible for the medical care of our children. We hope and we strongly encourage adolescents to communicate with and involve their parents and other trusted adults in all important decisions affecting their lives, including those regarding pregnancy or pregnancy termination. We know, and research confirms, that most adolescents involve their parents voluntarily. Adolescents who live in caring environments and who feel supported by their parents will usually communicate with their parents during a crisis, but my role as a pediatrician is to support and encourage parents' involvement in adolescents' decisions without compromising the ethics and integrity of my relationship with adolescents as patients.
The American Academy of Pediatrics and many other medical and public health groups firmly believe that all young people must have access to confidential health care services, including reproductive health care and safe legal abortion services. Every one of our States' laws provides confidential access to some services for young people, whether for child abuse, sexually transmitted diseases, drug abuse or reproductive health care. No State requires parents to consent to a teenager's decision to continue a pregnancy or obtain prenatal care even if the parent thinks that an abortion is in their child's best interests.
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We also know that many adolescents delay or avoid seeking health care for sensitive issues, and that a lack of confidentiality is the primary reason that teens miss needed care, whether for pregnancy or for other reasons.
Let me next consider the role of parents and other trusted adults. Adolescents facing a crisis need to be able to turn to someone they trust to help them decide what is best. When teenagers who become pregnant are encouraged to involve parents, many do so. However, all too often young women know that their parents may be overwhelmed or angry if they know about the pregnancy. Fear of emotional or physical abuse, including being thrown out of their house, are the major reason that teens are afraid to tell their parents. Research shows that abusive families are at their worst both during pregnancies and also during their children's adolescence.
Most of the young women who I see who are afraid to involve their parents often turn to other trusted adults. While parental involvement is desirable, it may not be feasible, and it should not be legislated.
H.R. 1218 would harm young women who are most afraid to involve their parents in an abortion decision and who most need the support of other adults in their lives. Instead of encouraging young people to involved trusted adults, the law would discourage such communication. The bill would have a chilling effect on teens' ability to talk openly with adults, including family members or medical providers, because it sends the message that adults who help teens with these decisions are criminals.
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Finally, let me address the fact that this bill is harmful and dangerous for its effect on States and individual rights. As currently written, this bill would apply one State's laws to those of another State. Young women would be required to abide by the law of their original State of residence regardless of where they are or where they choose to seek medical care.
As a physician, I have a responsibility to refer patients to the best care possible. In some areas physicians may be licensed and may practice in more than one State's jurisdiction. In metropolitan areas that cross State lines, the best health services may be in one State and not in another that abuts that city. No other medical care is subject to rules or guidelines that are based on one's State of origin. Applying the laws of one State on women seeking care in another would also put us as physicians in the position of violating our own State's confidentiality laws in order to meet another State's requirements.
As a physician, as a teacher and most of all as a parent who is concerned about both the quality and safety of health care for my daughter and also for all adolescents in this country, I urge you to reject this bill.
Thank you. I would be happy to answer any questions.
Mr. CANADY. Thank you, Dr. Klein.
[The prepared statement of Dr. Klein follows:]
PREPARED STATEMENT OF JONATHAN D. KLEIN, M.D., MPH, FAAP, ASSOCIATE PROFESSOR, DEPARTMENT OF PEDIATRICS, UNIVERSITY OF ROCHESTER SCHOOL OF MEDICINE, ON BEHALF OF THE AMERICAN ACADEMY OF PEDIATRICS, SOCIETY FOR ADOLESCENT MEDICINE, AND ADVOCATES FOR YOUTH
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Good morning, Mr. Chairman and members of the Committee. I am Dr. Jonathan Klein, a practicing pediatrician who has taken care of adolescents for the past 15 years. I am also an associate professor in the Department of Pediatrics at the University of Rochester School of Medicine. In the 15 years that I have engaged in the health care of adolescents, I have been involved with their families, extended families and other caregivers. I have taken care of adolescents in clinical settings and in institutional settings. Within organized medicine and other social service organizations, I have served on numerous national, regional and local advisory and professional committees on many issues regarding adolescent health and conferred with many colleagues across the nation on these very tough issues.
I am speaking today on behalf of the American Academy of Pediatrics, an organization representing 55,000 pediatricians throughout the nation. In addition, I am representing the Society for Adolescent Medicine, an organization of over 1500 physicians, nurses, psychologists, social workers, nutritionists and others involved in service delivery, teaching or research on the welfare of adolescents and Advocates for Youth, a national non-profit organization dedicated to helping young people make informed and responsible decisions about their sexual and reproductive health. It provides information, training, and advocacy to youth serving organizations, policy makers and the media in the US and internationally.
It is from these perspectives and perhaps most importantly as a parent that I am here today to express our concerns about the pending legislation, H.R. 1218, the ''Child Custody Protection Act.'' I would like to thank the Committee for this opportunity to present this statement as Congress continues to debate this issue of significance to adolescent health care.
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OVERVIEW:
The American Academy of Pediatrics firmly believes that parents should be involved in and responsible for assuring medical care for our children. Moreover, we would agree that as parents we ordinarily act in the best interests of our children and that minors benefit from our advice and the emotional support we provide as parents. We strongly encourage and hope that adolescents communicate with and involve their parents or other trusted adults in important health care decisions affecting their lives. This includes those regarding pregnancy and pregnancy termination. We know and research confirms that most adolescents do so voluntarily. This is predicated not by laws but on the quality of their relationships. By its very nature family communication is a family responsibility. Adolescents who live in warm, loving, caring environments, who feel supported by their parents and their parents with them, will in most instances communicate with their parents in a crisis including the disclosure of a pregnancy.
My role as a pediatrician is to support, encourage, strengthen and enhance parental communication and involvement in adolescent decisions without compromising the ethics and integrity of my relationship with adolescent patients.
The stated intent by those who support mandatory parental consent laws is that it enhances family communication as well as parental involvement and responsibility. However, the evidence does not support that these laws have that desired effect. To the contrary, there is evidence that these laws may have an adverse impact on some families and that it increases the risk of medical and psychological harm to adolescents. According to the American Academy of Pediatrics, ''[i]nvoluntary parental notification can precipitate a family crisis characterized by severe parental anger and rejection of the minor and her partner. One third of minors who do not inform parents already have experienced family violence and fear it will recur. Research on abusive and dysfunctional families shows that violence is at its worse during a family member's pregnancy and during the adolescence of the family's children.''
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CONFIDENTIALITY OF CARE:
I would like to turn my attention to the issue of confidentiality—whether adolescents can access health care services without parental consent. The American Academy of Pediatrics, and other medical and public health groups firmly believe that young people must have access to confidential health care services—including reproductive health care and abortion services. Every one of our states' laws also provide confidential access to some services for young people, whether for child abuse, STDs, drug addiction or reproductive health care. Concern about confidentiality is one of the primary reasons young people delay seeking health services for sensitive issues, whether for an unintended pregnancy or for other reasons. While parental involvement is very desirable, and should be encouraged, it may not always be feasible and it should not be legislated. Young people must be able to receive health care expeditiously and confidentially.
Most adolescents will seek medical care with their parent or parents' knowledge. Making services contingent on parental involvement mandatory (either parental consent or notification) however, may drastically affect adolescent decision-making. Mandatory parental consent or notification reduces the likelihood that young people will seek timely treatment for sensitive health issues. In a regional survey of suburban adolescents, only 45 percent said they would seek medical care for sexually transmitted diseases, drug abuse or birth control if they were forced to notify their parents.
A teen struggling with concerns over his or her sexual health may be reluctant to share these concerns with a parent for fear of embarrassment, disapproval, or possible violence. A parent or relative may even be the cause or focus of the teen's emotional or physical problems. The guarantee of confidentiality and the adolescent' s awareness of this guarantee are both essential in helping adolescents to seek health care.
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For these reasons, physicians strongly support adolescents' ability to access confidential health care. A national survey conducted by the American Medical Association (AMA) found that physicians favor confidentiality for adolescents. A regional survey of pediatricians showed strong backing of confidential health services for adolescents. Of the physicians surveyed, 75 percent favored confidential treatment for adolescents. Pediatricians describe confidentiality as ''essential'' in ensuring that patients share necessary and factual information with their health care provider. This is especially important if we are to reduce the incidence of adolescent suicide, substance abuse, sexually transmitted diseases and unintended pregnancies.
Many influential health care organizations support the provision of confidential health services for adolescents, here is what they say:
The American Academy of Pediatrics. ''A general policy guaranteeing confidentiality for the teenager, except in life-threatening situations, should be clearly stated to the parent and the adolescent at the initiation of the professional relationship, either verbally or in writing.''
The Society for Adolescent Medicine. ''The most practical reason for clinicians to grant confidentiality to adolescent patients is to facilitate accurate diagnosis and appropriate treatment. . . . If an assurance of confidentiality is not extended, this may create an obstacle to care since that adolescent may withhold information, delay entry into care, or refuse care.''
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The American Medical Association. ''The AMA reaffirms that confidential care for adolescents is critical to improving their health. The AMA encourages physicians to involve parents in the medical care of the adolescent patient, when it would be in the best interest of the adolescent. When in the opinion of the physician, parental involvement would not be beneficial, parental consent or notification should not be a barrier to care.''
The AMA also notes that, because ''the need for privacy may be compelling, minors may be driven to desperate measures to maintain the confidentiality of their pregnancies. They may run away from home, obtain a ''back alley'' abortion, or resort to a self-induced abortion. The desire to maintain secrecy has been one of the leading reasons for illegal abortion since . . . 1973.''
American College of Physicians. ''Physicians should be knowledgeable about state laws governing the rights of adolescent patients to confidentiality and the adolescent's legal right to consent to treatment. The physician must not release information without the patient's consent unless required by the law or if there is a duty to warn another.
The American Public Health Association. APHA ''urges that . . . confidential health services (be) tailored to the needs of adolescents, including sexually active adolescents, adolescents considering sexual intercourse, and those seeking information, counseling, or services related to preventing, continuing or terminating a pregnancy.''
Of course, it is important for young people who are facing a health-related crisis to be able to turn to someone dependable, someone they trust, to help them decide what is best. Many, many times that person is a parent. Teenagers facing a crisis pregnancy should be encouraged to involve a parent, and many do so. In fact, over 75 percent of teens under age 16 involve at least one parent in their decision, even in states that do not mandate them to do so. In some populations as many as 91% of teenagers younger than 18 years voluntarily consulted a parent or ''parent surrogate'' about a pregnancy decision. All too often, however, young women know that their parents would be overwhelmed angry, distraught or disappointed if they knew about the crisis pregnancy. Fear of emotional or physical abuse, including being thrown out of the house, are among the major reasons teenagers say they are afraid to tell their parents about a pregnancy. Young women who are afraid to involve their parents very often turn to another adult in times of difficulty. One study shows that, of young women who did not involve a parent in their abortion decision, over half turned to another adult; 15 percent of these young women involved a step-parent or other adult relative. In my own practice, I have had the situation arise in which an adult female sibling or cousin has been the person the adolescent wanted me to call into the consultation based on the fear of anger and rejection from her mother.
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H.R. 1218 would harm young women who are most afraid to involve their parents in an abortion decision and who most need the support of other adults in their lives. Instead of encouraging young people to involve adults whom they trust, the law would discourage such communication. The bill would have the unintentional outcome of placing a chilling effect on teenagers' ability to talk openly with adults—including family members and medical providers—because it sends a message that adults who help young people grapple with difficult decisions are criminals. This disincentive is extremely dangerous for those young people most in need of support and guidance in a difficult time when they cannot involve their parents.
THE BALANCE BETWEEN STATES AND PARENT'S RIGHTS
This legislation is not only troublesome with regard to its effect on confidential medical care for teens; it is also a harmful and potentially dangerous bill from the perspective of its intent and its potential effect on states and individual rights.
As currently written, H.R. 1218, would apply one state's laws to another state. Young women would be required to abide by the ''original'' state's (the state where the young woman resides) law regardless of where they seek medical care. There are many reasons why women travel to obtain an abortion including concerns about confidentiality and consent. An adult who accompanies a young woman to a legal, accessible, and affordable abortion provider would be placed in the position of risky criminal sanctions.
Applying the laws from one state on women who seek medical care in another state raises important questions about state's rights. As a physician, I have the responsibility to refer patients to the best care possible. In my experience, physicians in any other medical procedure are not subject to guidelines that prohibit proceeding with medical care in one state based on guidelines from the referring state. In addition, in certain metropolitan areas physicians have a license to practice in more than one jurisdiction, such as Washington, D.C., Maryland, and Virginia. In other metropolitan areas that cross state lines most of the health services are in one state, and not the other. This would burden families and would result in significant disruption of the relationships between doctors and their patients, too. Again, consider your own Greater Metropolitan Washington community—what would happen if a teen took the Metro subway or bus from Falls Church, Virginia to Washington, D.C.? Would an adult who loaned the teenager Metro fare be liable?
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This law would be extraordinarily difficult to enforce. Does the law only apply to women who travel to another state in order to exercise their constitutional right to health care? I am afraid that there may be eventual implications for young women who are temporarily living outside their home state because of travel, education or employment.
It would be very difficult for the state to prove that young women are seeking to circumvent parental consent or notification laws. I worry about the legal ramifications for the adult who is traveling with the young woman, who may believe that the home state parental consent or notification laws have been followed.
Moreover, as a pediatrician, I am concerned about the effect on and responsibilities to the health care providers involved: the doctor's responsibility when providing abortion services to women of any age from out-of-state. Health care providers have a ''fiduciary duty'' (the highest degree of a legal obligation or duty) to protect the confidentiality of their patients and a number of federal and state statutes mandate the confidentiality of medical records and information. One of the most common requirements is found in state licensing statues for physicians. For example, in Colorado, a physician who violated a patient's confidentiality is subject to disciplinary action, including revocation of his/her license. Other states mandate that health records must be kept confidential and cannot be released without the patient's consent. I am very concerned that Congress may put health care providers in the position where they must violate their state's confidentiality statutes in order to meet the obligations of a neighboring state.
CONCLUSION
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In conclusion, I reiterate a statement previously made by the immediate past president of the Society for Adolescent Medicine: ''[C]learly the proposed bill is designed to eliminate this [abortion]option for many adolescents. Adolescents who cannot rely on one or both parents to help them through the trauma of a pregnancy and who, for legal or geographical reasons, may need to go to an adjoining state for termination, are effectively precluded from receiving help from those (such as other relative, health professional, or even the clergy) who would be there to help them. In essence, this law would put adolescents in the position of having to take care of themselves (possibly traveling long distances in the process), without supportive care during a traumatic time in their lives.''
As physician, a teacher, and most of all, as a parent, who is concerned about the quality and safety of health care for my daughter as well as for the quality and safety of health care for all adolescents in this country, I urge you to reject H.R. 1218.
Thank-you. I would be happy to answer any questions you may have.
REFERENCES
1. Gans, J.E. McManus, M.A., Newacheck, P.W. Profiles of Adolescent Health Services, Vol. 2, Adolescent Health Care: Use Costs and Problems of Access AMA:1991, Wash., D.C. at 52.
2. Marks A. Malizio, J. Hoch, J. Brody, R. & Fisher, M., Assessment of health needs and willingness to utilize health care resources of adolescents in a suburban population, J of Pediatrics 1983; 102: 456–460.
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3. Gans J.E. McManus, M.A. Newacheck, P.W. Profiles of Adolescent Health Services, Vol. 2., Adolescent Health Care: Use Costs and Problems of Access, AMA: 1991, Wash. D.C. at 53.
4. Resnick, M.D., Litman, T.J. and Blum, R.W. Physicians attitudes towards confidentiality of treatment for adolescents: findings from the Upper Midwest Regional Survey, J of Adol. Health, 1992; 13:616–22.
5. Gans, J.E. Compendium on Reproductive Health Issues Affecting Adolescents, AMA:1996, Wash. D.C. at 10.
6. Id.
7. Id.
8. Id.
9. American College of Legal Medicine, Legal Medicine at 278 (1995).
10. Colo.Rev.Stat 25–4–1409 (2) (1995). The statute does not address physician protection of adolescent patients' confidentiality.
11. American Medical Association. Council on Ethical and Judicial Affairs. ''Mandatory Parental Consent to Abortion.'' JAMA. Vol. 269. No.1, January 6, 1993 p. 83
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Mr. CANADY. Professor Harrison.
STATEMENT OF JOHN C. HARRISON, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA
Mr. HARRISON. Thank you, Mr. Chairman.
The subcommittee has asked me to discuss the question of Congress' constitutional authority to enact this legislation, a question that is, of course, separate from the issue of whether it is desirable policy and should be enacted.
The legislation is within Congress' power. It is a regulation of interstate commerce, one of Congress' explicit authorities granted under the Constitution. For one person to transport another person from State to State is to engage in interstate commerce, as it has long been understood, and as it is understood in the Supreme Court's doctrine.
The purpose of the legislation is to deal with the problem created by the Federal Union, by the fact that States with different laws are part of one country and to some extent are required to recognize one another's laws, and in this context to permit people to move freely from State to State.
The result of that is the State with primary jurisdiction over a question of domestic relations, in this case parental notification concerning abortion, can have to deal with a lack of authority because a minor can go to another State.
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For Congress to use the commerce power to deal with this problem created by the structure of the Federal Union, the possibility of evasion of the laws of the State with the primary jurisdiction, is a fairly familiar phenomenon. Perhaps the best known examples in the Nation's history had to do with the interstate trade in liquor. Problems were created for dry States by the fact that the Commerce Clause as then understood made it possible to bring liquor into dry States contrary to their laws. Congress dealt with that in legislation, the Wilson and the Webb-Kenyon Act.
Similarly in this statute, the idea is to ensure that the State with the primary jurisdiction, in this case the State of residence, which is a little unusual—in most of the situations with which we are familiar, like the Webb-Kenyon Act and the Wilson Act, the State with primary jurisdiction is the State in which the conduct takes place. Here the State with primary jurisdiction is the State of residence. That is a familiar principle of the conflict of laws under which the State of primary jurisdiction over questions of domestic relations is the State of residence and not necessarily the State in which the conduct takes place.
The State of primary jurisdiction, as I say, is the State of residence. In this legislation Congress would be ensuring that the laws of the State of residence would be effective throughout the country, and that is a familiar and permissible use of the commerce power.
There is a Supreme Court doctrine regulating the States' power over abortion as such. Those cases are largely irrelevant here because, by hypothesis, the State laws that are being given full effectiveness as a result of this legislation are themselves constitutional. The Supreme Court has explained that substantial limitations on abortion in the interests of parental involvement, parental notification and parental consent are permissible. When such a permissible State regulation is made fully effective by Congress, there is no additional constitutional difficulty created. In short, Mr. Chairman, I think it is clear that Congress has the authority to adopt this legislation under the Constitution. Thank you.
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Mr. CANADY. Thank you, Professor Harrison.
[The prepared statement of Mr. Harrison follows:]
PREPARED STATEMENT OF JOHN C. HARRISON, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA
The Subcommittee has asked that I testify concerning Congress' power to enact H.R. 1218, the Child Custody Protection Act.(see footnote 1)
The proposed legislation would make it a federal crime knowingly to transport across a state line ''an individual who has not attained the age of 18 years . . . with the intent that such individual obtain an abortion, and thereby in fact [to abridge] the right of a parent under a law requiring parental involvement in a minor's abortion decision, in force in the State where the individual resides.''
H.R. 1218 is a regulation of commerce among the several States. Commerce, as that term is used in the Constitution, includes travel whether or not that travel is for reasons of business. E.g., Caminetti v. United States, 242 U.S. 470 (1917). To transport another person across state lines is to engage in commerce among the States. There is thus no need to address the scope of Congress' power to regulate activity that is not, but that affects, commerce among the States, see, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung, 379 U.S. 294 (1964); United States v. Lopez, 514 U.S. 549 (1995).
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Under the Supreme Court's current doctrine, Congress can adopt rules concerning interstate commerce, such as this one, for reasons related primarily to local activity rather than commerce itself. United States v. Darby, 312 U.S. 100 (1941).(see footnote 2) Hence even if H.R. 1218 reflected a substantive congressional policy concerning abortion and domestic relations it would be a valid exercise of the commerce power because it is a regulation of interstate commerce.
Even under the more limited view of the commerce power that has prevailed in the past, H.R. 1218 would be within Congress' power. This legislation, unlike the child labor statute at issue in Hammer v. Dagenhart, does not rest primarily on a congressional policy independent of that of the State that has primary jurisdiction to regulate the subject matter involved. Rather, in legislation like this Congress would be seeking to ensure that the laws of the State primarily concerned, the State in which the minor resides, are complied with. In doing so Congress would be dealing with a problem that arises from the federal union, not making its own decisions concerning local matters such as domestic relations or abortion.
H.R. 1218 in this regard resembles the Webb-Kenyon Act, Act of March 1, 1913, 37 Stat. 699, which dealt with a problem posed by then-current dormant commerce clause doctrine for States with strong prohibition laws. Such States, under Leisy v. Hardin, 135 U.S. 100 (1890), were limited in their power to regulate liquor that was shipped from out of state. Under the Webb-Kenyon Act, liquor was ''deprived of its interstate character'' (to use the old terminology) and its introduction into a dry State prohibited. The Court upheld the Webb-Kenyon Act in Clark Distilling Company v. Western Maryland Railway Company and State of West Virginia, 242 U.S. 311 (1917).(see footnote 3)
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My testimony is concerned with the Commerce Clause, not with the limitations on the regulation of abortion that the Court has found in the Due Process Clauses of the Fifth and Fourteenth Amendments. That focus is appropriate, I think, because H.R. 1218 does not raise any questions concerning the permissible regulation of abortion that are independent of the state laws that it is designed to effectuate. To the extent that a state rule is inconsistent with the Court's doctrine, that rule is ineffective and this bill would not make it effective. Hence it is unnecessary to ask, for example, whether subsection (b)(1) of proposed section 2431 of title 18 would constitute an adequate exception to a rule regulating abortion. Because constitutional limits on the States' regulatory authority are in effect incorporated into proposed Section 2431, subsection (b)(1) is in addition to any exceptions required by the Court's doctrine.
This testimony on legal issues associated with H.R. 1218 is provided to the Committee as a public service. It represents my own views and is not presented on behalf of any client or my employer, the University of Virginia.
Mr. CANADY. I am now going to recognize the gentlelady from California, and as I indicated, we will give the gentlelady additional time so Ms. Lominick has a further opportunity to tell us what she wishes.
Ms. WATERS. Ms. Lominick, I want to thank you for coming. I understand that this is your first airplane ride?
Ms. LOMINICK. Right. I had never rode a plane before.
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Ms. WATERS. Was it a little scary?
Ms. LOMINICK. It was until I got on it, and then it was fine.
Ms. WATERS. I guess you got on that plane for the first time because you thought it was important to come?
Ms. LOMINICK. Right. I thought it was real important.
Ms. WATERS. Why did you think that it was so important to come?
Ms. LOMINICK. Because this child was in an abusive home. She had no one else to turn to. Her parents would not give her——
Ms. WATERS. I understand that she was sexually abused as a child?
Ms. LOMINICK. She was sexually abused by her stepfather and her mother. They were taken out of the home from 1996 to 1998.
Ms. WATERS. So finding you and your son was like a new breath of life for her?
Ms. LOMINICK. She was someone—we were someone she could come to and talk to about it. And I moved her into the house with me. At first she would come to my house on weekends and go to church. She wanted to go to church, and she had no other way to go. I just fell in love with her. And I guess I was someone she could tell and talk to.
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Ms. WATERS. It is obvious that you care an awful lot about her.
Ms. LOMINICK. She works with me at the school.
Ms. WATERS. Oh, she works with you?
Ms. LOMINICK. We do janitorial work.
Ms. WATERS. So this is a young lady who has been through an abusive experience, but she was working and going to school and trying to have a life?
Ms. LOMINICK. She is in school, yes, ma'am.
Ms. WATERS. And she did what happens to a lot of young ladies, she fell in love, and she became pregnant?
Ms. LOMINICK. And she wasn't ready to have children.
Ms. WATERS. So when she discovered she was pregnant, she talked about it with your son, and everybody talked with her about it. Nobody pushed or coerced her into a decision?
Ms. LOMINICK. No, ma'am. This was her decision.
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Ms. WATERS. She decided she had a tough life, but she wanted to do better? She wanted to finish her education?
Ms. LOMINICK. Right. She wanted to finish school and go to a tech school. And I am going to help her.
Ms. WATERS. And your son wants to finish school?
Ms. LOMINICK. Yes, ma'am. He goes to a private school.
Ms. WATERS. So they made a decision. They recognized that they were very young, and they weren't ready to take care of a child?
Ms. LOMINICK. They wasn't ready to have children.
Ms. WATERS. And you were supportive of the decision?
Ms. LOMINICK. Yes.
Ms. WATERS. And you helped her?
Ms. LOMINICK. Yes.
Ms. WATERS. How do you feel about having helped her?
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Ms. LOMINICK. I feel great for helping her, and I am going to continue to help her.
Ms. WATERS. Do you think that there are a lot of other young ladies that are in this kind of situation?
Ms. LOMINICK. Yes. There are a lot of them in our town. They can't go to their parents and talk to them about it.
Ms. WATERS. So they, too, need help?
Ms. LOMINICK. That is right.
Ms. WATERS. So this law that you traveled on the airplane the first time to testify about is something that you feel pretty strongly about; is that right?
Ms. LOMINICK. I believe in it.
Ms. WATERS. And you would not like to see anything done that would make it more difficult for young people like this?
Ms. LOMINICK. Yes.
Ms. WATERS. I think I understand why you came. Is there anything else that you would like to tell the Members up here before you finish your testimony?
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Ms. LOMINICK. You mean about her?
Ms. WATERS. Just asking them maybe to see your point of view?
Ms. LOMINICK. Well, that is why I come. I hoped that they would see my point of view.
Ms. WATERS. Well, I certainly appreciate your coming, and thank you very much.
Ms. LOMINICK. Thank you. You are welcome.
Ms. WATERS. I yield back the balance of my time.
Mr. CANADY. I thank the gentlelady.
The gentleman from New York is recognized.
Mr. NADLER. Thank you.
My first question is for Ms. Roberts. I didn't hear your testimony, but I just read your statement. You, of course, deal with a situation where I presume that you are a loving mother, and you have a loving husband who is a loving father and so forth. How would you deal with a situation like Ms. Lominick? Do you think that Ms. Lominick should be treated as a criminal, as this law would do? How do you think that the law should deal with that situation?
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Ms. ROBERTS. Well, first of all, in her State if she did have a parent notification or consent law in place, I believe I heard her testimony saying that the judge would not hear her.
Mr. NADLER. Her testimony is that there are only a couple of counties in the State where a judge would hear it, and when they went to that judge—there was no judge available.
Ms. ROBERTS. Well, I think it could have been pursued more. As an advocate to support families in this situation, I would have encouraged this mother to go back to the court and go back to her State legislator and say, look, you made this law of the State, and I have a right.
Mr. NADLER. By the time the State legislature acts, the child is born.
Ms. ROBERTS. I have access to State legislators all the time.
Mr. NADLER. The State legislature takes months to act at best. A judge is one thing; the legislature is another. I served in one for 16 years.
Ms. ROBERTS. Okay, I am telling you what I would do in steps, okay. All I can speak is for the State of Virginia where I have the situation and could go to the attorney general and say, we need to get a judge to hear this case.
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Mr. NADLER. She had a judge hear the case, and the other State had parental consent notification law with a judicial bypass. The other State, apparently, you could find a judge who would hear the case, and she got a judicial bypass. Do you think she is a criminal or ought to be treated as such?
Ms. ROBERTS. I can only speak for my family, and if my mother took my daughter, yes, I would have pressed charges because my mother would not have been responsible for the $27,000.
Mr. NADLER. You are only referring to your family. We have to legislate for all kinds of families, including situations such as Ms. Lominick.
So you think that someone in Ms. Lominick's position who acted out of the best of motives, who got a judicial decision that the abortion was in the best interests of the minor, nonetheless should be treated as a criminal?
Ms. ROBERTS. She could have made and appeal, and yes—well, only if—only if you write in this bill that that person who takes the child to another State is responsible for the aftermath of a botched legal abortion. If this daughter—for instance, if it was my daughter, my mother should have been responsible for the $27,000 that my husband and I had to pay for because we didn't take her. Whoever takes the child then and breaks the law should pay the costs of a legal——
Mr. NADLER. You think there should be civil responsibility?
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Ms. ROBERTS. Exactly.
Mr. NADLER. But not criminal penalties?
Ms. ROBERTS. No, I believe if that is the law of the land, they should.
Mr. NADLER. Thank you.
Professor Harrison, you stated in your testimony that commerce includes travel whether or not that travel is for reasons of business, Caminetti v. United States. To transport another person across State lines is to engage in commerce among the States.
Now, the Caminetti decision was made in 1917 when we still regarded human beings as commodities. The later decisions sort of eliminated that. Could one—let me ask you, could Congress make it criminal for citizens of New York to go to Atlanta City to gamble?
Mr. HARRISON. A couple of things, Mr. Nadler. Yes, human beings were once regarded as commodities, but I think not in 1917.
Mr. NADLER. Oh, I think yes. But never mind that question.
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Mr. HARRISON. The second question is a trickier one because the question there—there is Supreme Court authority that suggests that Congress might well be able to do that. I am going to modify this in a second, I want to make that point first.
A case like United States v. Darby suggests that a law that is about interstate commerce, that is to say a Federal law that is about going from one State to another, is permissible without respect to its purpose, whether it is designed to regulate activities normally regulated——
Mr. NADLER. Let me be very specific then. I know of no law ever in this country except perhaps for the can't transport slaves to free States laws prior to the Civil War—that aside, I am aware of no law in this country that makes it illegal to travel or to assist someone in traveling from one State to another State for the purpose of doing something that is legal in that State.
Mr. HARRISON. That is right. The thing that is unusual about this context is that—normally, as I suggested a couple of minutes ago, normally the State with primary——
Mr. CANADY. The gentleman's time has expired. The gentleman will have 2 additional minutes.
Mr. NADLER. Thank you.
Mr. HARRISON. Normally the State with primary jurisdiction over conduct is the State where the conduct takes place. In the context of domestic relations, however, the State with primary jurisdiction over the rights and responsibilities of the parties to the domestic relations is the State of residence. That is true with respect to marriage, for example. So this is an unusual context in which it is not problematic for Congress to do something that otherwise—and we don't know whether Congress could do that other thing, but it is not problematic——
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Mr. NADLER. Do you think that they might be able to?
Mr. HARRISON. It is clearly doubtful. I don't mean to deny that. I do want to say it is open. My main point is that in domestic relations, what would otherwise seem like extraterritorial application of the law of one State into another State is, in fact, a routine phenomenon.
Mr. NADLER. Because people belong to the States that they live in?
Mr. HARRISON. Because some State has to have jurisdiction allocated to it to regulate this, and in domestic relations it is normally the State of residence and not the State where the conduct takes place. It could be either one.
Mr. NADLER. Isn't it normal to regulate conduct that occurs in that State, and people are free to move from State to State?
Mr. HARRISON. As an ordinary matter, yes. This is a different context in which a measure of extraterritoriality occurs.
Mr. NADLER. What if Congress passed a law constitutionally that required that any minor female who desired to travel from one State to another had to get a certificate from a court that she was not doing so to evade the abortion laws?
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Mr. HARRISON. To evade——
Mr. NADLER. To evade—could Congress constitutionally require that a minor female would have to get a certificate from a court certifying that she had testified under oath that she was not pregnant, or if she was pregnant, she wasn't going to the other State in order to obtain an abortion without the parental consent required in the first State? And if Congress can't, why can't it?
Mr. HARRISON. In order to effectuate an otherwise constitutional parental consent rule?
Mr. NADLER. Yes.
Mr. HARRISON. Could Congress adopt an additional layer of regulation as to that, as a matter of commerce clause power, yes. With respect to the Supreme Court's abortion doctrine, it is more difficult to say.
Mr. NADLER. Let me say that I am—may I have 1 additional minute?
Mr. CANADY. No. The gentleman's time has expired, and we have a vote, and I would like to have some questions, so I am going to recognize myself now for 5 minutes.
I just want to point out in connection with the discussion that has been going on that I understand in a case in 1978 called U.S. v. Pelton, the eighth circuit upheld the Mann Act against the challenge of unconstitutionality in its application to transporting a person into Nevada for the purpose of prostitution even though prostitution was legal in Nevada. And I think that is pretty closely analogous to the situation that we have under this bill, and reference to that case is not new, was in the committee report in the last Congress. I just bring that to the gentleman's attention, and cert. was denied on that case.
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Let me ask Professor Harrison and Professor Graglia also to make any comments you might have about the implication—the way the right to travel fits into the analysis here.
My view is that minors don't have a right to travel to avoid the supervision of their parents under the law of the State where they reside. I think that isn't applicable, but we have heard a lot about the right to travel. Do you want to comment about how that fits into this situation?
Mr. GRAGLIA. First of all, on the question of a minors' right to travel: fortunately this bill does not rise to that level of problem because all this bill says is that some adult may not facilitate a minor traveling for the purpose of evading the State law, and I don't think that as a matter of constitutional law it can be said that there is a serious constitutional problem about that, as Professor Harrison has described.
Similarly, you get what seems to be the extremely touching and moving story that Ms. Lominick tells. The essence of the problem, as the Congressman pointed out, was that she was not able to get the judicial bypass in the State of residence.
Well, all we can do in law is make provision for the law to operate as it should. If it breaks down—if judges do not perform, that is inherent in the system of law. In any legal system we can say it didn't work in this case because the judge misbehaved. The judge should have given the bypass, but refused to do so.
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We have to assume in the creation and enforcement of a legal system that the operatives of the system will behave properly. If they don't, tragedies will occur, and that is what happened here.
Mr. CANADY. Don't you believe that if it can be demonstrated in a particular State or area of a State that there was a failure to implement the constitutionally required bypass procedure, that the law in that State would be subject to a challenge and—and that a Federal court would find that the law requiring parental involvement was unconstitutional because there was not an effective, enforced bypass procedure? And if this is going on in South Carolina or any other State, and I know that this is not Ms. Lominick's problem to solve this difficulty, it is a legal matter, but if it is going on in any State like that, the abortion rights advocates, it seems to me, would be in Federal district court to use that as a basis for having that law stricken down in that individual State. And I believe that if they can demonstrate that nobody can get a judge to hear a judicial bypass, a Federal district court would hold the law unconstitutional as applied in that State. Am I wrong?
Mr. GRAGLIA. No. I think that is clearly correct. The abortion right is not absolute. It does not go so far as to preclude parental consent and notification laws.
What is really at issue here is whether or not the right should be absolute. The objection to parental notification laws is based on the assumption that the State of residence is acting unconstitutionally. Clearly the situation where an effective, immediate bypass is not available is a situation where the law is not in compliance with the constitutional requirement, and that law can be quickly, it would seem, removed.
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Ms. WATERS. Will the gentleman yield?
Mr. CANADY. I am sorry, I can yield for 30 seconds.
Ms. WATERS. Thirty seconds.
Mr. CANADY. There is a vote going on.
Ms. WATERS. If the law is not working, if there is no bypass procedure, you have not violated any law. If you go out of State, then there should be no law that is seeing you in violation of law if the process is not working.
Mr. CANADY. Well, of course, if the——
Mr. GRAGLIA. You would have violated this law. You have violated a law. This law says that you may not transport people for the purpose of abortion and——
Mr. CANADY. I am going to have to reclaim my time because we are going to miss the vote if we don't bring to a conclusion.
Mr. NADLER. Mr. Chairman, may I ask unanimous consent to insert a statement into the record.
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Mr. CANADY. Without objection.
Mr. CANADY. I want to thank all the members of this panel. We appreciate it. I am not going to ask you to stay for the vote because we have gone through the questions. I appreciate your participation, and the subcommittee stands adjourned.
[Whereupon, at 10:18 a.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF STEPHEN B. 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-five years. I am the senior author of the leading law school American Legal History casebook, the co-author of a Constitutional Law 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. This written testimony is submitted at the request of the Committee, in favor of H.R. 1218, the proposed ''Child Custody Protection Act.'' I regret that I am unable to testify in person this year, but I did appear last year before the subcommittee, to testify in support of the predecessor bill, and my views have not changed.
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H.R. 1218 is an important and worthwhile bill which, if passed, will be a demonstration of the constructive and necessary role the United States Congress can play in the ongoing 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.'' I will address the Federalism issue first, and then move on to consider the abortion policy issues. I will close with a consideration of the Constitutionality of H.R. 1218.
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. 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 4)
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 5)
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Perhaps the most important area that was believed to be appropriate for state and local governments was the basic law regarding the family. We have never had, for example, federal laws providing standards for divorce, child custody, or 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.
Remarkably, the opponents of H.R. 1218 have sought to criticize the bill because ''the reality is that it is impossible to legislate complex family relationships,'' but legislation to define family relationships and in support of the family has been a part of our legal heritage since the time of the Bible, and such regulation and promotion of the family is arguably the most important task of the state. As was said in 1939 in Kraskin v. Kraskin, ''. . . the marriage relationship, being a matter as to which numerous divergent views are held in modem 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.''(see footnote 6) The legal rights of parents and children are the same type of domestic matter as marriage, and the difficult question of whether a member of a family should have an abortion is an important one that it is appropriate for divergent state laws to address.(see footnote 7)
H.R. 1218 is drafted in order to further this goal of preserving the discretion of each state to address this important aspect of the controversial abortion issue. Indeed, there remains today a respectable number of constitutional theorists who believe that the general question about whether and to what extent abortion should be permitted ought to be left to 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 8) Nevertheless, any student of contemporary Constitutional law must recognize that a majority of the Supreme Court disagrees. As this Committee is well aware, in the important Roe v. Wade case,(see footnote 9) 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 10) 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 11) the central holding of Roe, that the Fourteenth Amendment's due process clause encompassed a right to privacy which included within it the freedom to seek an abortion, was expressly preserved. Nevertheless, an equally important result in Casey was that 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 12)
Planned Parenthood v. Casey should thus be read as a reaffirmation of the important role the states play regarding matters touching the family and the abortion issue in particular. For our purposes in evaluating H.R. 1812, the most important aspect of Casey was its explicit holding, reaffirmed in subsequent court 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 13) 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 14)
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Much of the opposition to H.R. 1812 appears to stem from particular organizations' or particular persons' hostility to these parental consent laws, but, as the Supreme Court reminded us in Casey, the question of whether or not parental consent should be required is appropriately one for resolution by the people of the states themselves—acting through their legislatures. The critics of H.R. 1812 have raised the specter of ''back alley'' abortions being sought by those who are too fearful to seek parental consent, but this is the problem ''judicial bypass'' provisions are designed to deal with, and the Supreme Court has repeatedly upheld parental consent laws with judicial bypass provisions. The opponents of H.R. 1812 are really opponents of the substantive decisions which the state legislatures have made regarding parental consent and judicial bypass, they are opponents of the decisions which the people of these states have themselves reached.
It should be frankly acknowledged, however, that the opponents of H.R. 1812 are also hostile to the bill because it has the potential to discourage some abortions, and many proponents of H.R. 1812 support it because they believe abortions ought to be discouraged. But this too is an appropriate matter for the people of a state to decide. 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. As the plurality stated in Casey,
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.''' [citation omitted] 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.(see footnote 15)
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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 from the abortion procedure, but since that time we have learned that this assumption was far too sanguine. There is strong empirical evidence, for example, of a linkage between breast cancer and abortion,(see footnote 16) it is now understood that there are other significant health risks to women, and particularly young women, who undergo abortions,(see footnote 17) 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. 1218 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 regarding abortion. 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. 1218 would do, the Congress would simply be reinforcing our Federalism scheme, and ensuring that each state's policy aims regarding this controversial issue are not frustrated. 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 18) 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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The political processes of each state exist to resolve these difficult questions through the exercise of popular sovereignty, the bedrock of our entire Constitutional system. Not for nothing are the first three words of the Constitution ''We the people,'' and unless the Constitution itself expressly denies the people any discretion over a particular area it is their right, indeed, it is their duty, to govern themselves regarding that issue through the legislative process. This is the most important right in the Constitution, the right of self government, for which our system of dual sovereignty exists. This Bill is an important step in reinforcing Federalism and in reinforcing self-government. It deserves to be enacted.
Some opponents of H.R. 1218 have raised doubts about its Constitutionality, but it is clear that a federal law such as this one is expressly and implicitly authorized by the Constitution. The most obvious constitutionally grounding of the Bill 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 19) 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 should also be noted that the ''necessary and proper'' clause would permit Congress to take steps, as H.R. 1218 does, to preserve our system of Federalism and dual sovereignty which are inherent in the structure of the document itself.(see footnote 20)
A third Constitutional foundation for H.R. 1218 exists because this legislation seeks to promote state policies with regard to the exercise and protection of the rights which the Supreme Court has declared in Roe and Casey are 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 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 text which expressly grants Congress the power to ''enforce by appropriate legislation, the provisions of [that Amendment]''(see footnote 21) removes all doubt of the Constitutionality of H.R. 1218. H.R. 1218 is sound policy and sound Constitutional law. I urge you to pass it.
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62490a.eps
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WHY WE NEED THE CHILD CUSTODY PROTECTION ACT
(S. 661, H.R. 1218)
PREPARED BY THE FEDERAL LEGISLATIVE OFFICE OF THE NATIONAL RIGHT TO LIFE COMMITTEE (UPDATED APRIL 8, 1999)
OVERVIEW
The Child Custody Protection Act (CCPA) is a proposal to make it a federal offense to transport a minor across state lines for an abortion, if this action circumvents the application of a state law requiring parental involvement in a minor's abortion (or judicial waiver of such a requirement).(see footnote 22) The prime sponsor of the Senate bill (S. 661) is Senator Spencer Abraham (R-Mi.). The prime sponsors of the House bill (H.R. 1218) are Reps. Ileana Ros-Lehtinen (R-Fl.) and James Barcia (D-Mi.).
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At least 20 states have laws in effect that require the consent or notification of at least one parent(see footnote 23), or court authorization(see footnote 24), before a minor can obtain an abortion.
The CCPA would curb much of the currently widespread interstate circumvention of these laws, thereby protecting the rights of parents and the interests of vulnerable minors. The CCPA is not a federal parental involvement law; it merely ensures that these state laws are not evaded through interstate activity. The CCPA does not encroach on state powers, but rather reinforces state powers.
A parent would object to the interference with parental rights if the minor were taken out of state for, say, a large tattoo, in avoidance of the home state's law requiring parental consent for a tattoo. But the interstate activity addressed by the CCPA is even more deplorable, considering the serious physical and psychological consequences of abortion, and the evidence that interstate transportation of minors to procure abortions often serves to conceal criminal activity such as statutory rape.
These parental involvement laws enjoy widespread support among the American people. A 1998 New York Times/CBS News poll found that 78 percent of Americans support parental consent before an abortion is performed on a girl under age 18. When Americans are asked about parental notification, support is even higher. A 1992 national poll by the Wirthlin Group found that 80 percent of Americans support requiring parental notification before an abortion is performed on a girl under age 18.
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However, some of these laws are frequently circumvented by adults who transport minors to abortion providers in neighboring states which do not have parental notification or consent laws. The American public strongly opposes this interstate abortion activity. A national poll of 1,000 registered voters, conducted June 6–8, 1998, by the respected firm of Baselice & Associates, asked this question: ''Should a person be able to take a minor girl across state lines to obtain an abortion without her parents' knowledge?'' 78% strongly disagreed, and another 7% somewhat disagreed, for a total of 85%. Three percent (3%) somewhat agreed and 6% strongly agreed for a total of 9%.
The transporting of minors across state lines for abortions, to circumvent state parental involvement laws, is both widespread and frequent. Gloria Feldt, president of the Planned Parenthood Federation of America, has acknowledged that the CCPA would affect thousands of teenage girls. (''GOP Moves to Bolster Rights of Parents in Teen Abortions,'' The Washington Times, May 12, 1998.) In 1995, Kathryn Kolbert, then an attorney with the Center for Reproductive Law and Policy (a national pro-abortion legal defense organization) asserted that thousands of adults are helping minors cross state lines to get abortions in states whose parental involvement requirements are less stringent or non-existent. She asked, ''How does a 14-year-old get to New Hampshire from Boston without getting a ride?'' (See ''Woman Charged in Secret Abortion, Philadelphia Inquirer, Sept. 16, 1995.) Only Congress, with its constitutional authority to regulate interstate commerce, can curb this egregious conduct.
COMMONWEALTH OF PENNSYLVANIA V. HARTFORD
A recent criminal prosecution in Pennsylvania revealed an outrageous example of the interstate abortion activity that is occurring without parental knowledge or consent. This case, Commonwealth of Pennsylvania v. Hartford, involves a prosecution against an adult, Rosa Hartford, for interference with the custody of a child. Rosa Hartford's 18-year-old adult son had sex with a 12-year-old girl, Crystal Lane; she became pregnant. Crystal lived with her mother, Joyce Farley, who had never met Rosa Hartford, and who did not even know that Crystal was pregnant. Pennsylvania law requires parental consent prior to an abortion on a minor. Nevertheless, Rosa Hartford took the girl (who had just turned 13) without her mother's knowledge, on a school day, on a 60-mile trip to an abortion clinic in New York, where an abortion was performed.(see footnote 25)
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At the abortion clinic, Ms. Hartford represented to the clinic that she was Crystal's stepmother until she learned that the state police had been contacted, at which point she told the clinic staff the truth.
Pennsylvania authorities prosecuted Rosa Hartford, who was convicted of interfering with the custody of a child. This offense is defined as ''knowingly or recklessly'' taking or enticing ''any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian,'' without the privilege to do so. She was sentenced to one year's probation, 150 hours of community service, and the prosecution costs. (Her son pled guilty to two counts of statutory rape.)
At trial and on appeal, Rosa Hartford was represented by a national abortion-rights legal center, the New York-based Center for Reproductive Law and Policy (CRLP). The core of the CRLP's defense was that the conduct of Rosa Hartford was protected by the U.S. Constitution, because Hartford did no more than help the girl exercise her constitutional ''right to abortion'' under Roe v. Wade. ''The young woman's constitutional right to choose abortion outweighs any interest her parents have in denying her the assistance of another adult to effectuate her decision. . . . the 'deference to parents [that] may be permissible with respect to other choices facing a minor' has no place where a young woman seeks to terminate an unwanted pregnancy.'' (Brief of Defendant-Appellant, pp. 26–27). ''If we permit any local prosecutor to bring these types of charges, we would totally undermine the rights of young women to choose abortion,'' CRLP attorney Kathryn Kolbert said. (See ''Woman Faces Trial in Abortion,'' The Washington Post, Nov. 3, 1995).
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Other pro-abortion groups weighed in on the Hartford case, asserting that Rosa Hartford did nothing wrong since she was helping the young girl obtain an abortion. An amici curiae brief filed by Allegheny Reproductive Health Services, National Abortion and Reproductive Rights Action League of Pennsylvania, Planned Parenthood of Chester County, and others, asserted that ''Pennsylvania's criminal Interference with the Custody of a Minor statute . . . does not apply to the conduct of adults who help young women obtain legal abortions or other reproductive health care to which minors may validly consent without parental permission. C.L. [the 13-year-old girl] had a right to consent on her own to the reproductive health care she sought and obtained through Mrs. Hartford's assistance.'' (footnote omitted)
The constitutional argument was rejected by the Pennsylvania trial court and by a state appeals court. The appeals court noted that the minor had always had available to her the right to obtain an abortion without parental involvement, through the judicial bypass provision of the Pennsylvania Abortion Control Act. Moreover, with respect to the question of custody, the court noted that ''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,'' that is, that ''another responsible adult (i.e., a judge) will provide some oversight to that decision.'' [Commonwealth of Pennsylvania v. Hartford, No. 00088PHL97 (Pa. Super. Ct. Oct. 28, 1997).]
The court stated that the Pennsylvania state law pertaining to interference with the custody of children can be applied if an unauthorized adult were to take ''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.'' (Id.) However, the appeals court remanded the case for a new trial due to supposedly erroneous jury instructions. The case has since been appealed to the Pennsylvania Supreme Court.
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THE PREVALENCE OF THIS INTERSTATE ACTIVITY
News reports and published studies reveal that large numbers of minors are crossing state lines to obtain abortions, and that many of these cases involve adults other than parents transporting the minors. CRLP attorney Kathryn Kolbert acknowledged, ''There are thousands of minors who cross state lines for an abortion every year and who need the assistance of adults to do that.'' (''Labor of Love is Deemed Criminal,'' The National Law Journal, Nov. 11, 1996.)
Pennsylvania
Take for instance, Pennsylvania, the state where the minor involved in the Hartford case resides. Since Pennsylvania's current parental consent law took effect in March of 1994, news reports have repeatedly maintained that Pennsylvania teenagers are going out of state to New Jersey and New York for abortions. In fact, in 1995 The New York Times reported, ''Planned Parenthood in Philadelphia has a list of clinics, from New York to Baltimore, to which they will refer teen-agers, according to the organization's executive director, Joan Coombs.'' Moreover, the Times gave accounts of clinics which had seen an increase in patients from Pennsylvania. One clinic, in Cherry Hill, New Jersey, reported seeing a threefold increase in Pennsylvania teenagers coming for abortions, to a rate of approximately six girls per week. Likewise, a clinic in Queens, New York reported that it was not unusual to see Pennsylvania teenagers as patients in 1995, though it had earlier been rare. (''Teen-Agers Cross State Lines in Abortion Exodus,'' The New York Times, Dec. 18, 1995.)
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In the period just prior to the Pennsylvania law's taking effect, efforts were underway to make it easier for teenagers to go out of state for abortions. For instance, Newsday reported that ''[c]ounselors and activists are meeting to plot strategy and printing maps with directions to clinics in New York, New Jersey, Delaware and Washington, D.C., where teenagers can still get abortions without parental consent. . . . 'We will definitely be encouraging teenagers to go out of state,' said Shawn Towey, director of the Greater Philadelphia Woman's Medical Fund, a nonprofit organization that gives money to women who can't afford to pay for their abortions.'' (Newsday, Feb. 22, 1994).
Moreover, some abortion clinics in nearby states, such as New Jersey and Maryland, use the lack of parental involvement requirements in their own states as a ''selling point'' in advertising directed at minors in Pennsylvania. One ad that appeared in the 1996 Yellow Pages for Scranton, Pennsylvania was purchased by Metropolitan Medical Associates, an abortion clinic in Englewood, New Jersey. Unlike Pennsylvania, which has a parental consent law, in New Jersey, as the ad proclaims, ''No Parental Consent Required.'' It is noteworthy that in September, 1996, a reporter for The Record newspaper published in nearby Hackensack, New Jersey, was told by two staff abortionists at the Metropolitan Medical clinic that at least 1,500 partial-birth abortions are performed in the clinic annually. ''Most are teenagers,'' one doctor told the newspaper. (See ''The Facts on Partial-Birth Abortion,'' by Ruth Padawer, The Record, Sept. 15, 1996.)
Another ad appeared in the 1997–98 Yellow Pages for Harrisburg, Pennsylvania. The purchaser, Hillcrest Women's Medical Center, maintains a clinic in Harrisburg, but the ad also promotes the option of going to a sister clinic in Rockville, Maryland (about 100 miles)—where, the ad notes, ''No Waiting Period'' and ''No Parental Consent'' requirements apply.
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Missouri
In 1997, a study in the American Journal of Public Health reported that the main abortion clinic in Missouri refers minors out of state for abortions if the girl does not want to involve her parents. Reproductive Health Services, which performs over half of the abortions performed in Missouri, refers minors to the Hope Clinic for Women in Illinois. In the first quarter of 1989, the Hope Clinic performed 101 abortions on minors from Missouri. (See Charlotte Ellertson, ''Mandatory Parental Involvement in Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and Indiana,'' American Journal of Public Health, August, 1997.) Research has found that based on the available data, the odds of a minor traveling out of state for an abortion increased by over 50 percent when Missouri's parental consent law went into effect. Furthermore, it was found that compared to older women, underage girls were significantly more likely to travel out of state. (Id.)
A 1999 news report in the St. Louis Post-Dispatch confirms that the Hope Clinic in Illinois continues to be a magnet for underage girls seeking abortions without parental involvement. A counselor at the clinic estimates that she sees two girls a week who are avoiding their home state's parental involvement law. One recent example was a 16-year-old girl from Missouri whose boyfriend had called clinics in St. Louis only to learn that parental consent was required for a minor's abortion. At this one clinic alone—the Hope Clinic—there were 3,200 abortions on out-of-state women last year, which the clinic's executive director estimates makes up about 45 percent of the clinic's total clientele. These clients were primarily from Missouri. The Post-Dispatch reports that the clinic does not keep statistics of how many abortions are performed on minors from out-of-state, but that the executive director estimates that 13 percent of its clients are minors. (''Illinois May Tighten Rules on Abortions For Teens; Parental Consent is Not Required Abortion Bill Targets Illinois as Teen Haven; For Abortion,'' St. Louis Post-Dispatch, Feb. 25, 1999.)
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The Hope Clinic has touted the fact that no parental consent is required in both its Yellow Pages listing and in its radio ad. Jan Boyle, with Missouri Right-to-Life in St. Louis, was quoted as saying: ''All you need to do is listen to the (St. Louis) radio stations. . . . They advertise for Hope Clinic in Granite City [Illinois].''
The state of Illinois is a particular attraction for underage girls because many of its neighboring states have parental involvement laws. Pam Sutherland of Illinois Planned Parenthood acknowledged, ''We are the only state in a sea of states that all have consent and notification laws.'' The Post-Dispatch writes, '[s]he said border-crossing into Illinois for abortions 'happens all the time.' ''
Massachusetts
Massachusetts has also seen an increase in out-of-state abortions performed on its teenage residents since that state's parental consent law went into effect in April of 1981, according to a published study, as well as anecdotal information. A 1986 study published in the American Journal of Public Health found that in the four months prior to implementation of the parental consent law, an average of 29 Massachusetts minors obtained out-of-state abortions per month (in Rhode Island, New Hampshire, Connecticut, and New York—data for Maine was not available). But after the parental consent law was implemented, the average jumped to between 90 and 95 out-of-state abortions per month (using data from the five states of Rhode Island, New Hampshire, Connecticut, New York, and Maine)—representing one-third of the abortions obtained by Massachusetts' minors.
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In addition, the study found that when Rhode Island implemented its parental consent law in September 1982, abortions performed on Massachusetts minors in Rhode Island fell from an average of 40 to 12 per month. Meanwhile, Connecticut abortions involving Massachusetts minors rose from four per month to 14, and New Hampshire abortions involving Massachusetts minors rose from 42 to 53 per month. This led the authors to state that it ''is clear that the distribution of minor women in states other than their home state is dramatically and immediately affected by the presence of a parental consent law.''
The study noted that due to what the authors described as ''astute marketing,'' one abortion clinic in New Hampshire was able to nearly double the monthly average of abortions performed on Massachusetts minors (from 14 in 1981 to 27 in 1982). The abortionist ''began advertising in the 1982 Yellow Pages of metropolitan areas along the northern Massachusetts border, stating 'consent for minors not required.' '' (Virginia G. Cartoof and Lorraine V. Klerman, ''Parental Consent for Abortion: Impact of the Massachusetts Law,'' American Journal of Public Health, April 1986.)
In April of 1991, the Planned Parenthood League of Massachusetts estimated that approximately 1,200 Massachusetts minor girls travel out-of-state for abortions each year, the majority of them to New Hampshire. Planned Parenthood said that surveys of New Hampshire clinics revealed an average of 100 appointments per month by Massachusetts minors. (''Mass. Abortion Laws Push Teens Over Border,'' Boston Sunday Herald, April 7, 1991.)(see footnote 26)
Mississippi
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A 1995 study of the effect of Mississippi's parental consent law revealed that Mississippi also has had an increase in the number of minors traveling out-of-state for abortion. The study, published in Family Planning Perspectives, compared data for the five months before the parental consent law took effect in June of 1993, with data for the six months after it took effect, and found that ''[a]mong Mississippi residents having an abortion in the state, the ratio of minors to older women decreased by 13% . . . [h]owever, this decline was largely offset by a 32% increase in the ratio of minors to older women among Mississippi residents traveling to other states for abortion services.''
Based on the available data, the study suggests that the Mississippi parental consent law appeared to have ''little or no effect on the abortion rate among minors but a large increase in the proportion of minors who travel to other states to have abortions, along with a decrease in minors coming from other states to Mississippi.'' (Stanley K. Henshaw, ''The Impact of Requirements for Parental Consent on Minors' Abortions in Mississippi,'' Family Planning Perspectives, June, 1995.)
Virginia
Grace S. Sparks, executive director of the Virginia League of Planned Parenthood, predicted in February of 1997 that if Virginia were to pass a parental notification law, teenagers would travel out of state for abortions. ''In every state where they've passed parental notification, . . . there's been an increase in out-of-state abortions,'' she said, adding, ''I suspect that that's what will happen in Virginia, that teen-agers who cannot tell their parents, . . . will go out of state and have abortions. . . .'' (Style Weekly, Feb. 11, 1997).
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Virginia's parental notification law took effect on July 1, 1997. In the first six months that the law was in effect, there were 62 fewer abortions performed on Virginia minors (from 983 abortions during the same time period in 1996 to 921 abortions in 1997). (''Fewer Va. Girls Get Abortions; Parental Notification Cited,'' The Washington Times, Aug. 9, 1998). This represents a 6 percent drop. At the same time, abortions performed on Virginia women of all ages increased by 2 percent. (''Number of Abortions for Virginia Minors Drops Slightly,'' The Virginian-Pilot, Aug. 3, 1998.)
However, a 1998 Washington Post article suggests that Virginia teenagers are traveling to the District of Columbia in order to obtain abortions without involving their parent. In fact, the National Abortion Federation (NAF), which runs a toll-free national abortion hotline, said that calls from Virginia teenagers seeking information on how to obtain an abortion out-of-state were the largest source of teenage callers seeking out-of-state abortions, at seven to 10 calls per day. They are mainly from southern and central Virginia. NAF hotline operator Amy Schriefer has gone so far as to talk a Richmond area teenage girl through the route (involving a Greyhound bus and the Metro's Red Line) to obtain an abortion in the District of Columbia. (''Fewer Teens Receiving Abortions In Virginia,'' The Washington Post, March 3, 1998.)
Three to four Virginia teenagers per month visit the Planned Parenthood of Metro Washington clinic, most of them from the state's southern half and Tidewater. It appears that the number of out-of-state teenagers coming into Virginia for abortions has declined as a result of the new law. Planned Parenthood of the Blue Ridge in Roanoke reports a drop from 30 out-of-state teenagers seeking abortions in 1996 (mainly from North Carolina and West Virginia), to not one out-of-state teenager from July, 1997 to March, 1998. (Id.)
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ADULT MALE SEXUAL PARTNERS AND THE CCPA
The majority of today's teenage mothers are being impregnated by adult men. In its 1995 Report to Congress on Out-of-Wedlock Childbearing, the U.S. Department of Health and Human Services reported that ''evidence . . . indicates that among unmarried teenage mothers, two-thirds of the fathers are age 20 or older, suggesting that differences in power and status exist between many sexual partners.'' [U.S. Department of Health and Human Services, Report to Congress on Out-of-Wedlock Childbearing, September 1995, Executive Summary, p. x].
A study of 46,500 school-age mothers in California, published in the American Journal of Public Health in 1996, provides further evidence of this. This study of California school-age girls found that two-thirds of the girls were impregnated by adult, postschool fathers, with the median age of the father being 22 years. [Mike Males and Kenneth S.Y. Chew, ''The Ages of Fathers in California Adolescent Births, 1993,'' American Journal of Public Health, vol. 86, no. 4 (April 1996)].
In another study, which was conducted on a national scale and published in Family Planning Perspectives, it was found that ''[h]alf of the fathers of babies born to women aged 15–17 were 20 years of age or older.'' Furthermore, the study revealed that on average, the baby's father was four years older than these 15–17-year-old mothers. The age disparity was such that the study's authors noted:
While a certain degree of age disparity between mothers and fathers is common in the United States, wide age gaps between young teenage mothers and older fathers merits some concern. One in five mothers aged 15–17 have a partner six or more years older. This type of age difference suggests, at the least, very different levels of life experience and power, and brings into question issues of pressure and abuse.
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[David J. Landry and Jacqueline Darroch Forrest, ''How Old Are U.S. Fathers?'' Family Planning Perspectives, vol. 27, no. 4 (July/August 1995)].
Obviously, many of these males are vulnerable to statutory rape charges, a strong incentive to pressure the much younger girl to agree to obtain an abortion without revealing the pregnancy to the parents. Currently, such a male often can evade parental consent requirements by transporting his victim across state lines, but under the Child Custody Protection Act, this would compound rather than reduce the male's legal risk. While we are unaware of statistical data on the incidence of interstate transportation by the impregnating males, it is noteworthy that 58 percent of the time it is the girl's boyfriend who accompanies a girl for an abortion, when her parents have not been told about her pregnancy. [Stanley Henshaw and Kathryn Kost, ''Parental Involvement in Minors' Abortion Decisions,'' Family Planning Perspectives, vol. 24, no. 5 (September/October 1992)].
THE FEDERAL ROLE IN PROTECTING MINORS FROM INTERSTATE TRANSPORTATION TO CIRCUMVENT STATE PARENTAL INVOLVEMENT LAWS
Currently, at least 20 states have in effect laws that require parental or judicial involvement in the abortion decision of a minor.(see footnote 27) The Child Custody Protection Act would invoke federal authority to curb the interstate circumvention of these laws.
In the past, the federal government has exercised its interstate commerce authority to prohibit other interstate activity that it deemed harmful to minors and their families. For example, in 1910, Congress used its constitutional authority under the Commerce Clause to prohibit the interstate transportation of women or minors for purposes of ''prostitution or debauchery, or for any other immoral purpose'' (commonly referred to as the Mann Act). The Supreme Court upheld the enactment of this law as a constitutional exercise of Congress' power over transportation among the several states. Moreover, the Court reasoned that if men and women employ interstate transportation to facilitate a wrong, then their right to interstate travel can be restricted. [Hoke v. United States, 227 U.S. 308 (1913)].
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With respect to state laws requiring parental or judicial involvement in minors' abortion decisions, federal legislation is warranted because of the acknowledged scope of the practice, and because of the profound physical and psychological risks of an abortion to a minor. As the Supreme Court has observed, ''[t]he medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature.'' [H.L. v. Matheson, 450 U.S. 398, 411 (1981).]
Pro-abortion groups oppose this legislation and echo the arguments made by the Center for Reproductive Law and Policy—namely that Supreme Court precedents on abortion give adults the right to take minors across state lines, without parental knowledge or consent, in order to procure abortions. But, clearly, the opportunity for a minor to obtain an abortion should not be elevated to a ''special'' right that supersedes parental custody over a minor daughter. The taking of a minor by a non-custodial adult on a trip out-of-state for a serious medical procedure without her parent's knowledge or consent in avoidance of state law does not become permissible just because the procedure performed is an abortion.
The taking of an underage girl out of state for an abortion by someone who may have no knowledge of her prior medical or psychological history poses many dangers which could be avoided through involvement of her parents. For instance, a parent would be able to alert the abortionist of any known allergies to medication, be able to provide pertinent information from her prior medical or psychological history, and be able to provide the names of, and authorization for the release of pertinent data from, other family physicians.
Moreover, in light of the dangers involved with the abortion procedure itself, the fact that an adult would take a minor out of state for such a procedure, behind the custodial parent's back, is particularly outrageous. Hemorrhaging, perforation or ripping of the uterus, anesthesia complications, and even death are all known risks of abortion procedures.
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Once the girl returns home, she may suffer physical complications from the abortion. If the parents are aware that their daughter has had an abortion, their knowledge may prove key to ensuring that the young girl receives treatment in a timely fashion with the onset of symptoms. But if the parents remain ignorant of the abortion, they are unable to provide the benefit of their knowledge and expertise to their young daughter as complications develop—even in the post-abortion stage.
Unlike an abortion clinic counselor or another adult, who may have only a transitory role in the minor's life, it is the parents who play a permanent role and who are best able to fully attend to the child's well-being even beyond the abortion.
The long-term physical consequences of an abortion are well known, including, as 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).] The aftereffects of this abortion decision may remain with the adolescent for the rest of her life. That is all the more reason that her parent's right to be involved should not be usurped by another adult surreptitiously taking her out of state.
Young adolescent girls are particularly at risk of certain detrimental medical consequences from an abortion. For instance, there is a greater risk of cervical injury associated with suction-curettage abortions (at 12 weeks' gestation or earlier) performed on girls 17 or younger. [Willard Cates, Jr., M.D., M.P.H., Kenneth F. Schulz, M.B.A., and David A. Grimes, M.D., ''The Risks Associated With Teenage Abortion,'' The New England Journal of Medicine,'' vol. 309, no. 11 (September 15, 1983): pp. 621–624.] Cervical injury is of serious concern because it may predispose the young girl to adverse outcomes in future pregnancies. Girls 17 or younger also face a two and a half times greater risk of acquiring endometritis following an abortion than do women 20–29 years old. [Burkman et al., ''Morbidity Risk Among Young Adolescents Undergoing Elective Abortion,'' Contraception, vol. 30 (1984): pp. 99–105.]
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Dr. Bruce A. Lucero, an abortionist who performed some 45,000 abortions over the course of his 15 years of practice, came out in support of the Child Custody Protection Act in 1998. In an op ed that appeared in The New York Times, Dr. Lucero wrote about his own experience with young girls who seek abortions: ''In almost all cases, the only reason that a teen-age girl doesn't want to tell her parents about her pregnancy is that she feels ashamed and doesn't want to let her parents down.'' But, Dr. Lucero wrote, ''parents are usually the ones who can best help their teen-ager consider her options. And whatever the girl's decision, parents can provide the necessary emotional support and financial assistance.'' Dr. Lucero also cited medical reasons for supporting the CCPA: ''[P]atients who receive abortions at out-of-state clinics frequently do not return for follow-up care, which can lead to dangerous complications. And a teen-ager who has an abortion across state lines without her parents' knowledge is even more unlikely to tell them that she is having complications.'' (Bruce A. Lucero, M.D., ''Parental Guidance Needed,'' The New York Times, July 12, 1998.)
OPPONENTS' ATTEMPTS TO GUT THE CCPA
Opponents of the Child Custody Protection Act insist that adult sexual partners, aunts, mothers-in-law, and strangers have a ''constitutional right'' to take minor girls across state lines for secret abortions. Some also argue that the bill is unconstitutional because it applies even if someone believes that an abortion is advisable for a girl's ''health.''
The argument for a ''health'' exception is without merit. The bill merely prohibits circumvention of the state parental involvement laws that are already in effect, which have been written to comply with detailed Supreme Court doctrine. Moreover, it is the parents or legal guardians—not boyfriends, strangers, or meddling in-laws—who are generally best able to weigh the risks of various courses of action in light of their often-unique knowledge of the girl's medical history, psychological makeup, and other crucial factors.
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Opponents of the CCPA also argue that the bill should be amended to exempt numerous individuals from its scope. The list of family members who it is argued deserve exemption from the bill has gone so far as to include first cousins. [See proposed amendment to the CCPA, H.R. Rep. No. 105–605, 105th Cong., 2d Sess., at 23 (1998).] Such amendments would gut the purpose of the bill by allowing noncustodial relatives—such as first cousins—to take a minor girl across state lines for a secret abortion, without a parent's knowledge or consent.
THE CLINTON-GORE ADMINISTRATION
The Clinton-Gore Administration has been among those demanding that exemptions be added to the bill. Some press reports have erroneously reported that the Clinton administration supports the ''concept'' of the legislation. In fact, the White House has threatened to veto the bill unless it is radically revised in a fashion that would actually legitimate and codify the circumvention of state parental consent laws—the very practice that the bill is intended to curb.
For example, on June 17, White House Chief of Staff Erskine B. Bowles issued a letter saying that the Clinton Administration ''strongly opposes the bill'' in its current form. The letter demanded, among other changes, that the bill be amended to give ''close family members'' such as ''grandmothers, aunts, and . . . siblings'' the same rights as parents. Apparently President Clinton believes that a mother-in-law or aunt should be able to take a child to a different state for a secret abortion, while the parent is kept in the dark.
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It is regrettable that the Clinton administration does not recognize, at the very least, the important physical and emotional health consequences that are at stake for minor girls when they are secreted across state lines for abortions. But this is not surprising in light of comments made by a top-ranking U.S. Department of Health and Human Services (HHS) official at a November, 1997 conference. During a discussion of the welfare reform's bonus funds—funds that states might receive if they reduced their out-of-wedlock birth rates as well as abortion rates—Thomas Kring, then acting Deputy Assistant Secretary for Population Affairs (DASPA) at HHS, said:
''If I were in charge, I would provide limousine service for anybody [pregnant teens] that lived within 50 miles of the border to go across the state line to have an abortion so it would be paid for by another—counted by another state.''
Kring is now director of the Office of Population Affairs in HHS.
62490f.eps
62490g.eps
NATIONAL ABORTION FEDERATION
HR 1218—''CHILD CUSTODY PROTECTION ACT'' OR ''TEEN ENDANGERMENT ACT''
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JUNE 8, 1999
Anti-choice legislators have once again proposed legislation to restrict women's access to abortion services. This proposed legislation takes aim at younger women with the ''Teen Endangerment Act.'' The National Abortion Federation, on behalf of the women served by our membership, urge legislators to reject this legislation and vote against this bill.
The National Abortion Federation agrees that in most cases, parents should be involved in their teenager's decision to have an abortion—and in the majority of cases they are. According to an Alan Guttmacher Institute study of states without parental involvement laws, 61% of parents knew about their teen's decision to have an abortion.
Of those teens whose parents did not know about their abortions, almost one-third were at risk of physical harm at the hands of their parents. This bill takes away safe alternatives to parental involvement, such as turning to other relatives or close family friends, and replaces them with life-endangering ones, like hitchhiking, self-inducing, or seeking out back alley abortions.
Under the Teen Endangerment Act, Grandmothers like Billie Lominick, who testified last month before this Subcommittee, could be federally prosecuted for helping family members with an unplanned and unwanted pregnancy. This past January, high school sweethearts ''Mary'' and ''Tom'' learned that Mary had become pregnant. Mary and Tom, both still in school, felt that they were not ready to become parents. When Mary's mother and stepfather learned of the pregnancy, they refused to grant her permission to have an abortion and became violent. Due to her family's history of sexual and physical abuse, Mary fled in fear to Grandma Billie's home.
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After much research and many phone calls, Mary could only find two courts in her state that would hear judicial bypass cases. The closest judge who would hear a petition case was over an hour from her home. Determined to obtain a judicial bypass, Mary spoke with an attorney in preparation for the hearing. Mary's hopes were soon dashed when she learned that the judge had announced a month earlier that the court would only take cases from minors residing within that county. Mary did not live in the judge's county, so she was unable to obtain a court order granting her per-mission to obtain an abortion without her parents' consent.
Mary began inquiring about other states. The closest clinic was over three hours away in a neighboring state. Grandma Billie, fearful of Mary and Tom traveling the long distance alone, offered to accompany them. Upon arrival in the other state, Mary was able to obtain a judicial bypass from a judge before obtaining her abortion. While Mary did meet this state's parental involvement law, she did not meet the requirements of her home state's law before traveling there. Under the Teen Endangerment Act, Grandma Billie would go to jail for helping Mary when she needed her most. Mary is currently living with Grandma Billie, and has just completed her sophomore year in high school. Along with school, both Mary and Tom have part-time jobs.
On behalf of teenagers at risk, the National Abortion Federation urges legislators to reject this dangerous legislation. Please help prevent desperate teens from the isolation and danger that this bill would create. Please ensure that Grandma Billie and other family members are not prosecuted for helping their loved ones due to this misguided bill.
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NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
THE ''CHILD CUSTODY PROTECTION ACT'' THREATENS YOUNG WOMEN'S HEALTH
In 1999, legislation entitled the ''Child Custody Protection Act''(see footnote 28) was introduced in Congress to prohibit anyone other than a parent, including a grandparent, aunt, or religious counselor, from taking a young woman across state lines for an abortion if it would violate the home state's parental involvement law.
Adolescents should be encouraged to seek their parents' advice and counsel when facing difficult choices regarding abortion and other reproductive health issues. Indeed, most young women do involve one or both parents when considering abortion. Even in states that enforce no mandatory parental consent or notice requirements, 61 percent of parents knew of their daughters' pregnancy.(see footnote 29) The government, however, cannot mandate healthy family communication where it does not already exist.
When a young woman cannot involve a parent, public policies and medical professionals should encourage her to involve a trusted adult. Indeed, one study found that more than half of all young women who did not involve a parent did involve an adult, including 15 percent who involved a step-parent or adult relative.(see footnote 30) However, if the so-called ''Child Custody Protection Act'' is enacted, it could endanger young women's lives and health by isolating those who believe they cannot involve a parent. Rather than making abortion more difficult and dangerous for young women, Congress should do more to create the conditions that enable women to make true choices by providing comprehensive sexuality education and ensuring that women have access to a range of effective contraceptives.
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This Legislation Would Further Isolate Those Young Women Who—For Good Reasons—Do Not Involve A Parent In Their Decision To Have An Abortion.
Most young women find love, support and safety in the home. Many, however, justifiably fear that they would be physically or emotionally abused if forced to disclose their pregnancy. Often young women who do not involve a parent come from families where government-mandated disclosure could have devastating effects.
Approximately 3.2 million cases of child abuse were reported in 1997. Young women considering abortion are particularly vulnerable because family violence is often at its worst during a family member's pregnancy.(see footnote 31)
Among minors who did not tell a parent of their abortion, 30 percent had experienced violence in their family or feared violence or being forced to leave home.(see footnote 32)
In Idaho, a 13-year-old sixth grade student named Spring Adams was shot to death by her father after he learned she was to terminate a pregnancy caused by his acts of incest.(see footnote 33)
In addition to fear of violence, some minors do not involve a parent because they believe that the knowledge would damage their relationship with the parent, they fear that it would escalate conflict or coercion, or they want to protect a vulnerable parent from stress and disappointment.(see footnote 34)
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When a young woman believes that she cannot involve a parent, the law cannot mandate healthy, open family communication. Indeed there is no evidence that laws like the ''Child Custody Protection Act'' will do anything but isolate young women who believe—for valid reasons—that they cannot involve a parent. Instead of encouraging young women to involve a trusted adult who may be able to offer much needed assistance, this law will cause some young women to face these decisions alone, without any help.
This Legislation Would Endanger Young Women's Health.
Young women who determine that they cannot involve a parent often seek help and guidance from other important and trusted people in their lives such as grandparents, aunts, or ministers. Such adults can provide a minor with valuable advice, counsel and assistance. However, this bill would discourage young women from seeking such help or assistance and would further isolate them in their decision. As a result, the legislation could force some young women to turn to illegal or self-induced abortion or to delay the procedure.
By discouraging—in fact, criminalizing—people who help young women in crisis pregnancies, the law could expose young women to increased health risks. In one study, 93 percent of the minors who did not involve a parent in their decision to obtain an abortion were nonetheless accompanied by someone to the abortion clinic.(see footnote 35) Such company is important to provide assistance to a minor before and after the abortion. However, this legislation will force some minors to have an unaccompanied abortion and potentially to drive themselves long distances, thereby exposing them to greater health risks.
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When faced with parental involvement laws, young women who feel they cannot involve a parent take drastic steps:
— The American Medical Association noted that ''[b]ecause the need for privacy may be compelling, minors may be driven to desperate measures to maintain the confidentiality of their pregnancies. They may run away from home, obtain a 'back alley' abortion, or resort to self-induced abortion. The desire to maintain secrecy has been one of the leading reasons for illegal abortion deaths since . . . 1973.''(see footnote 36)
— In Indiana, Rebecca Bell, a young woman who had a very close relationship with her parents, died from an illegal abortion because she did not want her parents to know about her pregnancy. Indiana law required parental consent before she could have a legal abortion.(see footnote 37)
Obstacles such as parental involvement laws increase the health risks to women by increasing the gestational age at which young women obtain abortions. The American Medical Association concluded in a 1992 study that parental consent and notice laws ''increase the gestational age at which the induced pregnancy termination occurs, thereby also increasing the risk associated with the procedure.''(see footnote 38) Although abortion is far safer than childbirth, the risk of death or major complications significantly increases for each week that elapses after eight weeks.(see footnote 39) This legislation could lengthen the delays for young women seeking abortion, causing them to get later abortions.
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This legislation could require young women to travel farther to obtain needed abortion services. Access to abortion providers in the United States is limited. Eighty-six percent of counties do not have an abortion provider.(see footnote 40) For some women, a reproductive health facility in another state may be the closest to their home. For instance, a reproductive health clinic in Duluth, Minnesota serves women from Minnesota, Wisconsin, Michigan and Ontario, Canada.(see footnote 41) Under this legislation, a grandmother could be subject to criminal charges for taking her granddaughter to an out-of-state facility, even if the out-of-state facility was the closest to the young woman's home.
Because A Judicial Bypass Is Not A Realistic Option, Some Young Women Obtain Abortions in Neighboring States.
Twenty-eight of the 30 states that enforce parental consent or notice laws provide a judicial or other bypass provision through which a young woman can obtain an abortion without parental involvement.(see footnote 42) 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.(see footnote 43) The time required to schedule the court proceeding may result in a delay of a week or more, thereby increasing the health risks of the abortion.(see footnote 44)
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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.(see footnote 45)
In Indiana, lawyers and clinics routinely refer teenagers out of state because local judges either refuse to hold hearings or are widely known to be anti-choice.(see footnote 46)
Young women's concern about confidentiality is especially acute in rural areas. For instance, in one case a minor discovered that her bypass hearing would be conducted by her former Sunday school teacher.(see footnote 47)
The Ohio Supreme Court upheld the denial of a petition of a 17-year-old girl who testified that her father beat her. At the time, she was a senior in high school with a 3.0 average who played team sports, worked 20–25 hours a week, and paid for her automobile expenses and medical care.(see footnote 48)
The Legislation Contains Legal Deficiencies.
The legislation contains several legal weaknesses that could render it unconstitutional.
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Under this legislation, a young woman who determined that she could not involve her parents may have to go through a judicial bypass in two states. For instance, if the young woman lived in a state with one parent consent law, but the closest clinic was in a state that also had a one parent consent law, the minor would have to go through the judicial bypass in her state of residence as well as in the state that she obtained the abortion. Requiring a minor to juggle judicial bypasses in two different states could constitute an unconstitutional undue burden.(see footnote 49)
Under the legislation, a person could be prosecuted for taking a minor to a neighboring state, even if that person does not intend—or even know—that the parental involvement law of the state of residence has not been followed. Such a result would violate the due process rights of a person who assists a minor facing a crisis pregnancy by creating a strict liability statute.(see footnote 50)
The ''life'' exception is unconstitutionally narrow. First, the ''life'' exception impermissibly limits the situations that would qualify under it by enumerating certain circumstances—but not others. As the Supreme Court has recognized, life exceptions cannot pick and choose among life-threatening circumstances.(see footnote 51) Second, the legislation contains no exception at all to protect a woman's health. As the Court noted in Planned Parenthood of Southeastern Pennsylvania v. Casey, ''the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.''(see footnote 52)
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Making Abortion Less Necessary Among Teenagers Requires A Comprehensive Effort to Reduce Teen Pregnancy.
Abortion among teenagers should be made less necessary, not more difficult and dangerous. A comprehensive approach to promoting adolescent reproductive health and reducing teen pregnancy will require an array of components, including: age-appropriate health and sexuality education; life options programs that offer teens practical life skills and the motivation to delay sexual activity; programs for pregnant and parenting teens that teach parenting skills and help ensure that teens finish school; increased information about emergency contraception pills; and access to confidential health services, including family planning and abortion.
Copyright 1998, The National Abortion and Reproductive Rights Action League Foundation
AMERICAN CIVIL LIBERTIES UNION
S. 661/H.R. 1218 THREATENS THE WELL-BEING OF YOUNG WOMEN
The American Civil Liberties Union opposes S. 661/H.R. 1218, the so-called ''Child Custody Protection Act of 1999.'' The bill would make it a federal crime for a person to transport a minor across state lines for an abortion unless the minor had already fulfilled the requirements of her home state's parental involvement law. S. 661/H.R. 1218 would deny teenagers facing unintended pregnancies the assistance of trusted adults, endanger their health, and violate their constitutional rights.
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This legislation will not increase parental involvement in the abortion decisions of young women.
Even in the absence of any legal requirement, most young women who are pregnant and seeking an abortion voluntarily involve a parent in their decision.(see footnote 53) The younger the teenager, the more likely her parents are to know about her decision: ninety percent of adolescents fourteen or younger report that at least one of their parents knew of their decision.(see footnote 54) For those young women who choose not to involve their parents, many valid reasons compel them not to do so.(see footnote 55) For instance, one third of teenagers who do not tell their parents about a pregnancy have already been the victim of family violence—physical, emotional, and sexual abuse—and fear it will recur.(see footnote 56) Long-term studies of abusive and dysfunctional families reveal that the incidence of violence escalates when a wife or teenage daughter becomes pregnant.(see footnote 57) Forcing a young woman to notify her abusive parent of a pregnancy can have dangerous, and even fatal, consequences for her and for other family members. In Idaho, a thirteen-year-old sixth-grade student named Spring Adams was shot to death by her father after he learned she planned to end a pregnancy he himself had caused.(see footnote 58)
When a young woman determines that she cannot tell a parent she is pregnant, a bill like S. 661/H.R. 1218 will not make her change her mind. The same percentage of minors inform their parents about their intent to have an abortion in states with and without parental involvement laws.(see footnote 59) This legislation will not create healthy family communication where it does not already exist.
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For many young women, the judicial bypass is not a real alternative.
For many teenagers living under parental involvement laws, the prospect of going to court for a ''judicial bypass'' of the parental involvement requirement is daunting or futile. Some teenagers live in regions where the local judges simply never grant bypass petitions. For example, the director of an Indianapolis women's clinic told the New York Times in 1992 that she was not aware of any teenager who had been granted a judicial bypass in that city in the prior six years.(see footnote 60) Other young women have reason to fear being recognized in local courthouses. Still others simply cannot face revealing intimate details of their lives to a series of strangers in a formal, legal process. As the Supreme Court has noted, ''The court experience produce[s] fear, tension, anxiety, and shame among minors.''(see footnote 61)
This legislation will endanger the health of young women by forcing them to travel alone.
Many teenagers are thus unable to satisfy a state parental involvement law, either because they cannot tell one parent (or, in some states, both parents) about a pregnancy or because they cannot face or have no fair chance of obtaining a judicial bypass. In addition, some teenagers must travel out of state to obtain an abortion, either because the closest abortion facility is located in a neighboring state or because there is no in-state provider available at their stage of pregnancy.
The overwhelming majority of young women who obtain abortions involve an adult (a parent, other family member, counselor, clergy member, teacher, or adult friend) in their decision(see footnote 62) and are accompanied by someone to the health-care facility.(see footnote 63) S. 661/H.R. 1218, however, would discourage young women who are already isolated and frightened from turning to someone they trust. Knowing that anyone who helps them obtain an out-of-state abortion would risk arrest and imprisonment, many young women would be forced by this legislation to travel alone across state lines. Clearly, it is in the best interests of young women for caring, responsible adults to accompany them to an abortion provider and to escort them home after the surgery. By forcing young women instead to travel alone, S. 661/H.R. 1218 would threaten their physical and mental health.
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By closing outlets for teenagers facing the crisis of an unwanted pregnancy, S. 661/H.R. 1218 would lead some to dangerous and desperate acts.
This legislation will push those minors desperate to avoid parental involvement to drastic acts that risk their health and well-being. A teenager facing an unwanted pregnancy is already in crisis. If she is unable or unwilling to consult her parents, her desperation is deepened by her isolation. Teenagers in these circumstances sometimes resort to self-induced abortion or illegal abortion as a way out. These efforts all too often have tragic results. For example, Becky Bell, an Indiana teenager, died from an illegal abortion because she couldn't bear to tell her parents about her pregnancy and thus could not comply with Indiana's parental notice law.(see footnote 64)
Out-of-state travel, in the company of a trusted companion, for a legal abortion, has provided many such teenagers a difficult but necessary outlet in a crisis. S. 661/H.R. 1218 would close that outlet, leading increasing numbers of young women to resort to the kinds of alternatives that all too often end with serious physical harm or death.
This legislation would lead to the unjustifiable prosecution of people who, for appropriate reasons, are helping young women to travel to another state to obtain an abortion.
S. 661/H.R. 1218 would impose federal criminal penalties on anyone (except a parent or the young woman herself) who ''transports'' a young woman across state lines to obtain an abortion if she has not first complied with her state's parental involvement law. The bill provides no exception for cases in which a young woman's health would be harmed if medical care were delayed in order to comply with her home state's parental involvement statute. The following are some examples of potential prosecutions under the bill:
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Emergency medical personnel—both driver and technician—could be prosecuted for transporting a minor across state lines to the nearest abortion provider, even if an emergency abortion were necessary to save the young woman from serious physical harm;
A grandmother who alone was raising her minor granddaughter but was not authorized to consent to her abortion under applicable state law could be prosecuted for taking her granddaughter to another state for an abortion, even if she did not know about this federal law or was unaware that her home state required parental involvement for an abortion;
An adult older sister could not help her teenage sister to obtain an out-of-state abortion even if both sisters were regularly subject to physical abuse by their parents and even if no local courthouse would hear or grant a bypass petition.
As these examples illustrate, this legislation would criminalize caring, responsible behavior on the part of adults concerned with a young woman's best interests. S. 661/H.R. 1218 would deter trustworthy adults and professionals from helping a young woman to obtain an out-of-state abortion no matter what the circumstances. It thus would create a barrier to safe, timely medical care and would endanger young women's well-being.
This legislation raises serious constitutional concerns.
In addition to its damaging effects on young women's health and welfare, S. 661/H.R. 1218 violates both the spirit and the letter of the Constitution in at least three respects.
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First, this legislation violates teenagers' due process rights by subjecting them to government-mandated harm. The Constitution prohibits the government from attempting to deter an activity by increasing the danger of engaging in that activity. Thus, in Carey v. Population Services International, the Supreme Court held that a state may not restrict minors' access to contraceptives in order to deter minors' sexual activity ''by increasing the hazards attendant on it.''(see footnote 65) By depriving young women of the assistance of others when they cross state lines to obtain an abortion, S. 661/H.R. 1218 exposes them to just such heightened peril.
Young women who must leave their home state to obtain an abortion face far greater dangers if they travel alone than if they make the trip in the company of someone they trust. Some abortions involve surgical procedures that may not permit a young woman to drive home, often over long distances, by herself. This legislation bans virtually all assistance, including that of the young woman's grandparents, aunts, uncles, sisters, brothers, cousins, and religious counselors. It undermines the government's asserted interest in protecting minors' well-being to criminalize this crucial assistance. The Supreme Court has held that a statute that undermines the government's asserted justification for it is constitutionally deficient. Thus, in Hodgson, the Court held that a two-parent notice requirement without a judicial bypass was unconstitutional where it ''disserv[ed] the state interest in protecting . . . the minor'' because it ''proved positively harmful to the minor and her family.''(see footnote 66) Because S. 661/H.R. 1218 subjects teenagers to increased danger by banning assisted travel while leaving them free to travel on their own, it is irrational and unconstitutional.
Second, this legislation is in conflict with core constitutional principles of federalism. The Constitution establishes a federal system that ensures to each citizen the right to move about freely from state to state in search of opportunity. The Supreme Court has recognized that this core value is embodied in both the fundamental right to travel and in the Privileges and Immunities Clause. In Shapiro v. Thompson, the Supreme Court recognized that ''the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.''(see footnote 67) Most recently, in Saenz v. Roe, the Supreme Court, in a 7–2 decision, held that ''a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the 'Privileges and Immunities of Citizens in the several States' that he Visits.''(see footnote 68) The Supreme Court has previously applied these principles in the context of restrictive abortion laws, holding that the Privileges and Immunities Clause ''protect[s] persons who enter [other states] seeking the medical services that are available there.''(see footnote 69)
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In violation of these essential principles, S. 661/H.R. 1218 saddles a young woman with the laws of her home state no matter where she travels in the nation. It deprives teenagers of their right to seek greater freedoms elsewhere and permits disparate treatment of teenagers within the same state depending on their state of origin. Moreover, it violates the sovereignty of the state of destination by rendering that state's laws inapplicable within its own borders. That S. 661/H.R. 1218 conflicts with the fundamental nature of our federal scheme should concern anyone who respects the integrity of the American constitutional system.
Third, S. 661/H.R. 1218 lacks a constitutionally required health exception and contains an inadequate life exception. The Supreme Court has held that any restriction on abortion, including laws mandating parental involvement, must contain an exception to protect both the health and life of the woman. In Planned Parenthood v. Casey, the Supreme Court held that all abortion regulations must contain a valid medical emergency exception, ''for the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.''(see footnote 70) Because this legislation contains no health exception whatsoever and an impermissibly narrow life exception, it is unconstitutional.
Because S. 661/H.R. 1218 would both endanger young women's safety and violate their constitutional rights, the ACLU vigorously opposes its passage.
For more information, contact.
Kathryn Engustian, Legislative Counsel, 202–675–2317
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Catherine Weiss, Director, ACLU Reproductive Freedom Project, 212–549–2640
| The Center for Reproductive Law |
| and Policy (CRLP), |
| New York, NY, May 26, 1999. |
Hon. CHARLES T. CANADY,
House of Representatives, Washington, DC.
DEAR REPRESENTATIVE CANADY: We write to urge your opposition to H. R. 1218 the so-called ''Child Custody Protection Act.'' H. R. 1218 prohibits transporting a young woman across state lines for the purposes of obtaining an abortion if she has not complied with the parental involvement law of her state of residence. This measure is a radical departure from this country's traditional federalism structure.
H. R. 1218 represents an unprecedented attempt by Congress to selectively enforce the laws of a minority of states while undermining the policies of the majority. Although more than half of the states currently enforce statutes regulating the provision of abortion services to minors, the narrow definition of ''parental involvement law'' contained in H. R. 1218 excludes many of these statutes. This measure unconstitutionally permits the laws of a minority of states to overcome the policy decisions of neighboring states.
Furthermore, the burdens imposed by H. R. 1218 violate the constitutional rights of minors. By isolating young women and forcing them to travel alone, this bill not only endangers teens, but will punish those who are unable to overcome these hurdles by forcing them to carry unwanted pregnancies to term to seek unsafe and illegal abortions. The government may not, however, attempt to deter behavior by increasing the risk associated with it, see, Carey v. Population Services International, 431 U. S. 678, 694 (1977). Moreover, this bill also suffers from constitutional infirmities because it lacks an exception for medical emergencies that threaten a young woman's health and because some minors would be required to go through court proceedings in two different states.
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We urge your strong opposition to H. R. 1218.
Sincerely,
| Sana F. Shtasel/ESM, |
| Washington, DC Director |
| Policy and Legislation |
| Brenda Romney, |
| Staff Attorney. |
(Footnote 1 return)
This statement is substantially identical to the testimony I provided the Senate Judiciary Committee last year at its May 20, 1998 hearing on S. 1645. See, The Child Custody Protection Act, Hearing Before the Committee On the Judiciary On S. 1645, United States Senate, 105th Cong., 2d Sess., at 36–37 (May 20, 1998). My conclusions are the same as those this Committee reached in 1998 with respect to similar legislation, H.R. 3682. See H.R. Rep. No. 105–605, at 10–11 (June 25, 1988).
(Footnote 2 return)
Darby overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), which held unconstitutional a ban on interstate shipment of goods made with child labor. The Court in Hammer found that the statute was in excess of the commerce power, even though it regulated only interstate transportation, because its purpose was related to production, which is a local activity.
(Footnote 3 return)
The rule of the Webb-Kenyon Act currently appears in Section 2 of the Twenty-First Amendment.
(Footnote 4 return)
The best discussion of the checking and balancing structure of the Constitution, and its implementation of the notion of dual sovereignty is 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 5 return)
U.S. Constitution, Amendments IX and X (1791).
(Footnote 6 return)
Kraskin v. Kraskin, 104 F.2d 218,221 (D.C. Cir., 1939).
(Footnote 7 return)
See generally, Stephen B. Presser, Recapturing the Constitution: Race, Religion and Abortion Reconsidered 254 (Washington D.C.: Regnery Publishing Co., 1994).
(Footnote 8 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 9 return)
Roe v. Wade, 410 U.S. 113 (1973).
(Footnote 10 return)
Planned Parenthood v. Casey, 505 U.S. 833,985 (Scalia, J. Dissenting).
(Footnote 11 return)
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
(Footnote 12 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 13 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 14 return)
Planned Parenthood v. Casey, 505 U.S. 833, 895 (1997).
(Footnote 15 return)
505 U.S., at 872–873.
(Footnote 16 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.'' For a more recent review of the literature on the linkage between abortion and breast cancer, and an argument that the current level of scientific evidence linking induced abortion with increased breast cancer risk is sufficient to support an ethical and legal duty imposed on abortion providers to disclose fully the risk to women who are considering pregnancy termination, see John Kindley, Comment: The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 Wis. L. Rev. 1595.
(Footnote 17 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 18 return)
Planned Parenthood v. Casey, 505 U.S. 833, 881–887 (1992).
(Footnote 19 return)
U.S. Constitution, Art I., Section 8, clause 3.
(Footnote 20 return)
U.S. Constitution, Art. I, Section 8, clause 18.
(Footnote 21 return)
U.S. Constitution, Amendment XIV, Section 5 (1868).
(Footnote 22 return)
The bill applies only to girls who are under whatever age requirement is specified by the state law in question—this varies from state to state—and has no application to any girl over age 17.
(Footnote 23 return)
In a number of other states, such laws have been enacted but blocked by state or federal courts, sometimes on highly technical grounds. See ''Parental Involvement Statutes,'' NRLC factsheet, 1999.
(Footnote 24 return)
Under Supreme Court decisions, laws which require parental consent, or two-parent notification, must also provide an alternative procedure by which a minor can obtain judicial authorization for an abortion.
(Footnote 25 return)
For Joyce Farley's detailed account of her experience, see the testimony she submitted to the Constitution Subcommittee of the U.S. House Judiciary Committee on May 12, 1998, available at www.nrlc.org/news/1998/NRL6.98/joyce.html.
(Footnote 26 return)
As of March of 1997, the Massachusetts law was changed to require the consent of one parent (or judicial authorization), rather than both parents as previously required. It remains to be seen what effect this change will have on the rate of out-of-state abortions performed on Massachusetts minors.
(Footnote 27 return)
This figure does not include ''parental circumvention'' laws, which allow notification to or consent by persons other than parents or legal guardians, and/or that allow abortionists to waive notification/consent requirements for reasons other than medical emergencies. See ''Parental Involvement Statutes,'' NRLC factsheet, 1999.
(Footnote 28 return)
H.R. 1218, 106th Cong. (1999) and S. 661, 106th Cong. (1999).
(Footnote 29 return)
Stanley K. Henshaw and Kathryn Kost, ''Parental Involvement in Minors' Abortion Decisions,'' Family Planning Perspectives, vol. 24, no. 5 (Sept./Oct. 1992): 197, 199–200.
(Footnote 30 return)
Henshaw and Kost, ''Parental Involvement,'' 207.
(Footnote 31 return)
Ching-Tung Wang and Deborah Daro, Current Trends in Child Abuse Reporting and Fatalities: The Results of the 1997 Annual Fifty State Survey (Chicago: National Committee to Prevent Child Abuse, 1998); H. Amaro, et al., ''Violence During Pregnancy and Substance Abuse,'' American Journal of Public Health, vol. 80 (1990): 575–579.
(Footnote 32 return)
Henshaw and Kost, ''Parental Involvement,'' 207.
(Footnote 33 return)
Margie Boule, ''An American Tragedy,'' Sunday Oregonian, Aug. 27, 1989.
(Footnote 34 return)
American Academy of Pediatrics, Committee on Adolescence, ''The Adolescent's Right to Confidential Care When Considering Abortion,'' Pediatrics, vol. 97, no. 5 (May 1996): 748, citing Henshaw and Kost, ''Parental Involvement.''
(Footnote 35 return)
Henshaw and Kost, ''Parental Involvement,'' 207.
(Footnote 36 return)
American Medical Association, Council on Ethical and Judicial Affairs, ''Mandatory Parental Consent to Abortion,'' Journal of the American Medical Association, vol. 269, no. 1 (Jan. 6, 1993): 83.
(Footnote 37 return)
Rochelle Sharpe, ''Abortion Law: Fatal Effect?'' Gannett News Service, Nov. 27, 1989; CBS, ''60 Minutes,'' Feb. 24, 1991 (videotape on file with NARAL).
(Footnote 38 return)
American Medical Association, ''Induced Termination of Pregnancy Before and After Roe v. Wade, Trends in the Mortality and Morbidity of Women,'' JAMA, vol. 268, no. 22 (Dec. 1992): 3238.
(Footnote 39 return)
Willard Cates, Jr. and David Grimes, ''Morbidity and Mortality of Abortion in the United States,'' Abortion and Sterilization, Jane Hodgson, ed. (New York: Grune and Stratton, 1981), 158; Rachel Benson Gold, Abortion and Women's Health: A Turning Point for America? (New York: Alan Guttmacher Institute, 1990), 28–30, citing additional sources.
(Footnote 40 return)
Stanley K. Henshaw, ''Abortion Incidence and Services in the United States, 1995–1996,'' Family Planning Perspectives, vol. 30, no. 6 (Nov./Dec. 1998): 263.
(Footnote 41 return)
Hodgson v. Minnesota, 648 F. Supp. 756, 761 (D. Minn. 1986).
(Footnote 42 return)
This information is current as of December 1998. The NARAL Foundation/NARAL, Who Decides? A State-By-State Review of Abortion and Reproductive Rights, 1999, 8th Edition (Washington, D.C.: The NARAL Foundation/NARAL, 1999), xv, 252.
(Footnote 43 return)
Hodgson, 648 F. Supp. at 763–64.
(Footnote 44 return)
Hodgson, 648 F. Supp. at 763.
(Footnote 45 return)
Charlotte Ellertson, ''Mandatory Parental Involvement in Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and Indiana,'' American Journal of Public Health, vol. 87, no. 8 (Aug. 1997): 1371–72; Virginia G. Cartoof and Lorraine V. Klerman, ''Parental Consent for Abortion: Impact of the Massachusetts Law,'' American Journal of Public Health, vol. 76, no. 4 (April 1986): 397–400.
(Footnote 46 return)
Tamar Lewin, ''Parental Consent to Abortion: How Enforcement Can Vary,'' New York Times, May 28, 1992, A1.
(Footnote 47 return)
Memphis Planned Parenthood v. Sundquist, No. 3:89–0520, slip op. at 13 (M.D. Tenn. Aug. 26, 1997).
(Footnote 48 return)
In re Jane Doe 1, 57 Ohio St.3d 135 (1991).
(Footnote 49 return)
Under Planned Parenthood v. Casey, a restriction that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion is an unconstitutional undue burden. 505 U.S. 833 (1992).
(Footnote 50 return)
Colautti v. Franklin, 439 U.S. 379, 394–97 (1979); Liparota v. United States, 471 U.S. 419, 423–428 (1985).
(Footnote 51 return)
Casey, 505 U.S. at 879.
(Footnote 52 return)
Casey, 505 U.S. at 880 (citations omitted).
(Footnote 53 return)
Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors' Abortion Decisions, 24 Family Planning Perspectives 196, 196 (Sept./Oct. 1992).
(Footnote 54 return)
Id. at 200.
(Footnote 55 return)
Id. at 202–03.
(Footnote 56 return)
American Academy of Pediatrics, The Adolescent's Right to Confidential Care When Considering Abortion, 97 Pediatrics 746, 748 (1996).
(Footnote 57 return)
Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 82–86 (1993).
(Footnote 58 return)
Ensunsa, Adams Charged With Murder, Idaho Statesman, Aug. 23, 1989.
(Footnote 59 return)
Robert W. Blum, Michael D. Resnick, & Trisha Stark, Factors Associated with the Use of Court Bypass by Minors to Obtain Abortions, 22 Family Planning Perspectives 158, 160 (July/Aug. 1990).
(Footnote 60 return)
Tamar Lewin, Parental Consent to Abortion: How Enforcement Can Vary, N.Y. Times, May 28,1992, at A1; see also Hodgson v. Minnesota, 497 U.S. 417, 440 (1990) (noting that, in Minnesota, ''a number of counties are served by judges who are unwilling to hear bypass petitions'').
(Footnote 61 return)
Hodgson, 497 U.S. at 441.
(Footnote 62 return)
Henshaw & Kost, supra note 1, at 207.
(Footnote 63 return)
Id. (ninety-three percent of minors who did not involve a parent in their abortion decision were nonetheless accompanied by someone to the abortion facility).
(Footnote 64 return)
Rochelle Sharpe, Abortion Law: Fatal Effect?, Gannett News Service, Nov. 27, 1989; CBS, 60 Minutes, Feb. 24, 1991.
(Footnote 65 return)
431 U.S. 678, 694 (1977).
(Footnote 66 return)
497 U.S. at 450.
(Footnote 67 return)
394 U.S. 618, 629 (1969).
(Footnote 68 return)
XX U.S. XX, No. 98–97, 1999 WL 303743, at *7 (U.S. May 17, 1999).
(Footnote 69 return)
Doe v. Bolton, 410 U.S. 179, 200 (1973). See also Saenz v. Roe, 1999 WL 303743, at *7 (Privileges and Immunities Clause ''provides important protections for nonresidents who enter a State . . . to procure medical services. . . .'').
(Footnote 70 return)
505 U.S. 833, 880 (1992).