SPEAKERS CONTENTS INSERTS
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99–583 PDF
2005
CHILD INTERSTATE ABORTION NOTIFICATION ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 748
MARCH 3, 2005
Serial No. 109–3
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
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J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
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
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
ADAM SMITH, Washington
CHRIS VAN HOLLEN, Maryland
PHILIP G. KIKO, Chief of Staff-General Counsel
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PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Texas
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
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C O N T E N T S
MARCH 3, 2005
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
WITNESSES
Ms. Marcia Carroll, Lancaster, PA
Oral Testimony
Prepared Statement
Mr. Richard S. Myers, Professor of Law, Ave Maria School of Law, Ann Arbor, MI
Oral Testimony
Prepared Statement
Mr. Warren Seigel, M.D., FAAP, FSAM, Director of Adolescent Medicine, Chairman of Pediatrics, Coney Island Hospital, Brooklyn, NY
Oral Testimony
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Prepared Statement
Ms. Teresa Stanton Collett, Professor of Law, University of St. Thomas School of Law, Minneapolis, MN
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on Constitution
Prepared Statement of the Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
Prepared Statement of the Honorable Steve King, a Representative in Congress From the State of Iowa
Prepared Statement of the Honorable Ileana Ros-Lehtinen, a Representative in Congress from the State of Florida
Prepared Statement of Dr. John C. Harrison, Professor of Law, University of Virginia
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Abortion form for Ashley Carroll, signed by her doctor, Dr. Kaji and materials related to Dr. Kaji and Brighan clinics submitted by Chairman Steve Chabot
CHILD INTERSTATE ABORTION NOTIFICATION ACT
THURSDAY, MARCH 3, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:34 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. Good afternoon. The Committee will come to order. This is the Subcommittee on the Constitution. I would like to thank everyone for being here this afternoon for this very important legislative hearing.
Today, the House Constitution Subcommittee will examine H.R. 748, the ''Child Interstate Abortion Notification Act,'' commonly known as CIANA, which was recently introduced by my colleague, the distinguished gentlelady from Florida, Congresswoman Ileana Ros-Lehtinen. I would also like to thank Congresswoman Ros-Lehtinen for her leadership on this issue.
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CIANA's predecessor, the ''Child Custody Protection Act,'' also introduced by Congresswoman Ros-Lehtinen, received broad support, passing the House on three separate occasions, including the 105th, 106th, and 107th Congresses. This hearing is the first step in ensuring that CIANA not only passes the House in the 109th Congress, but this time, it is enacted into law.
We have an expert panel with us here this afternoon and I would like to thank them for taking the time to share their knowledge and expertise with us.
Obtaining an abortion is a life-altering event, as we have heard and seen on numerous occasions. The medical, physical, and emotional impact on women can be long-lasting. CIANA would ensure that young girls who are seeking an abortion receive the care and support they need by enforcing existing State parental notification laws and providing for a Federal notification law that protects parental rights when a minor crosses State lines into a State without a notification law.
CIANA would make it a Federal offense to cause the circumvention of a valid State parental consent or notification law by knowingly transporting a minor across a State line with the intent that she obtain an abortion.
In addition, CIANA would build on the ''Child Custody Protection Act'' by also requiring that an abortion provider in a State without a parental involvement law notify a parent, or, if necessary, a legal guardian before performing an abortion on a minor girl who is a resident of a different State. This requirement would be applicable unless the minor has already received authorization from a judge in her home State, pursuant to a judicial bypass procedure, or unless she falls into one of the carefully drafted exceptions to cover cases of abuse or medical emergencies.
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Statistics show that approximately 80 percent of the public favors parental notification laws. Forty-four States have enacted some form of a parental notification statute. Twenty-three of these States currently enforce statutes that require the consent or notification of at least one parent or court authorization before a young girl can obtain an abortion. Such laws reflect widespread agreement that the parents of a pregnant minor are best suited to provide counsel, guidance, and support as she decides whether to continue her pregnancy or to undergo an abortion.
Despite widespread support for parental involvement laws and clear public policy considerations justifying them, substantial evidence exists that such laws are regularly evaded by individuals who transport minors to abortion providers in States that do not have parental notification or consent laws.
Confused and frightened young girls are routinely assisted by adults in obtaining abortions and are encouraged to avoid parental involvement by crossing State lines. Often, these girls are guided by those who do not share the love and affection that most parents have for their children. Personal accounts indicate that sexual predators recognize the advantage they have over their victims and use this influence to encourage abortions in order to eliminate critical evidence of their criminal conduct, and in turn, allowing the abuse to continue undetected.
Furthermore, when parents are not involved in the abortion decisions of a child, the risks to the child's health significantly increase. Parental involvement will ensure that parents have the opportunity to provide abortion providers with the minor's complete medical history and necessary information prior to the performance of an abortion, information that may have life or death consequences for the minor. Parental involvement in the after-care of a minor's abortion procedure is also critical in preventing or curtailing complications, such as infection, perforation, or depression, which if left untreated can be fatal.
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Public policy is clear that parents should be involved in decisions that their daughters make regarding abortion. CIANA will assist in enforcing existing parental involvement laws that meet the relevant constitutional criteria and will provide for parental involvement when minors cross State lines to have abortions in States without parental involvement laws. The safety of young girls and the rights of parents demand no less.
[The prepared statement of Mr. Chabot follows in the Appendix]
Mr. CHABOT. Again, I would like to thank our witnesses for being here today and I would now yield to the gentleman from New York, the Ranking Member, Mr. Nadler, for making an opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
When we last considered this legislation, I did not believe that the authors could possibly come up with a bill that would be more dangerous, more destructive of the well-being and the rights of young women than last year's bill. I am humbled to admit that I suffered from a paucity of imagination that clearly does not afflict some on the other side of the aisle.
I am really stunned by this latest crazy quilt of restrictions which has obviously but one purpose, to impede the practice of medicine, to ensure that young women will have as few options as possible, and to teach those States, like mine, New York, that do not believe the best way to promote adolescent health and deal with the very real problems these young women often experience is with draconian laws that prevent doctors and caring, responsible adults from helping these young women who may have nowhere else to turn.
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Often, that adult is a grandparent, a brother or a sister, or a member of the Clergy. In some cases, the young women may not be able to go to their parents. We all want young women to seek guidance and help from their parents, but sometimes, that may be impossible. Sometimes, indeed, the parents may pose a threat to the life and health of the young woman.
That is what happened to Spring Adams, a 13-year-old from Idaho. She was shot to death by her father after he found out that she planned to terminate her pregnancy, a pregnancy that was caused by his acts of incest. A law that would require her to tell him does not seem to make much sense.
I know that some of my colleagues might not see a problem forcing a doctor to ring Mr. Adams' doorbell to tell him they are planning to perform an abortion on his daughter. There has been longstanding and vigorous opposition to laws, including the Freedom of Access to Clinic Entrances Act, which aim to protect doctors and their patients from possibly violent fanatics.
This bill also uses an overly-narrow definition of medical emergency, one that seems to have been lifted from one of Attorney General Gonzales's infamous torture memos. Quote, ''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,'' close quote.
This clearly falls far short of the Supreme Court's requirement that any restriction on the right to choose must have an explicit exception to protect the life and an explicit exception to protect the health of the woman. There are many things that threaten the health of a woman that fall far short of endangering her life. The only health threat recognized here is a life-endangering health threat. A health threat that doesn't endanger her life but may be a severe one is not recognized in this exception, and yet, clearly, that is necessary to salvage the constitutionality of this bill under the Supreme Court decisions, if anybody cares about the constitutionality of this bill.
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There are many things, as I said before, far short of death that threatens a young woman. She deserves prompt and professional medical care and the Constitution still protects her right to receive that care.
Congress should not be tempted to play doctor. It is always bad medicine for women.
We want to encourage families to work together to face difficult situations and we want to provide young women facing these life-altering decisions with all the help that we can. In an ideal world, loving, supportive, and understanding families would join together to face these challenges. That is what happens in the majority of cases, with or without a law.
But we do not live in a perfect world. Some parents are violent. Some parents are rapists. Some young people can turn to their Clergy, to a grandparent, a sibling, or some other trusted adult who do not feel safe in turning to a parent. We should not turn these people into criminals simply because they are trying to help a young woman in a dire situation.
This bill is the wrong way to deal with a very real problem.
There is also one other major concern with this bill. This bill attempts to say, at least in the provision that was in last year's bill that makes it illegal to, quote, ''transport a minor across State lines for the purpose of getting an abortion,'' unquote, if she doesn't need parental consent or notification in the State where she will get it but she did in the State she is leaving, this tries to use the power of the Federal Government to put the law of the State which she is leaving on her back and make her carry it with her to a different State.
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I know of no other law which, in effect, uses the power of the government to enforce the law of one State in the boundaries of another State which has not chosen to have that law. The only other law I can think of that does that is a law that was enacted sometime ago called the ''Fugitive Slave Act'', and that was repealed by subsequent history.
I want to join the Chairman in welcoming our witnesses and I look forward to hearing their testimony. Thank you. I yield back.
Mr. CHABOT. Thank you.
[The prepared statement of Mr. Nadler follows in the Appendix]
Mr. CHABOT. Are there other Members that would like to make opening statements? If not, I will introduce the panel here of witnesses this afternoon, and we do have a very distinguished panel.
Our first witness today is Ms. Marcia Carroll, a mother from Pennsylvania who will share with us her own experience surrounding her minor daughter's abortion.
Our second witness is Richard Myers, Professor of Law at Ave Maria School of Law. Among other courses, Professor Myers teaches Constitutional Law, Federal Jurisdiction, first amendment, and Conflict of Laws. Prior to joining the Ave Maria faculty, Professor Myers taught at Case Western Reserve University School of Law and the University of Detroit Mercy School of Law. Professor Myers began his legal career by clerking for Judge John Kilkenny of the United States Court of Appeals for the Ninth Circuit. Professor Myers also worked for Jones, Day, Reavis and Pogue in several cases before the United States Supreme Court, and so we welcome you here this afternoon.
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Our third witness is Dr. Warren Seigel. Dr. Seigel is the Chairman of Pediatrics and the Director of Adolescent Medicine at Coney Island Hospital in Brooklyn, New York. In addition to Coney Island Hospital, Dr. Seigel is affiliated with Maimonides Medical Center, Lutheran Medical Center, the Brooklyn Hospital Center, the New York Methodist Hospital, and Wyckoff Heights Medical Center. Dr. Seigel also serves as the president of the New York State Chapter, District 2, of the American Academy of Pediatrics and is a Society for Adolescent Medicine Fellow. We welcome you here, Dr. Seigel.
Our final witness is Professor Teresa Stanton Collett. From 1990 to 2003, Professor Collett was a Professor of Law at South Texas College of Law, where she taught various legal courses. Since 2003, she has served as a Professor of Law at University of St. Thomas College of Law, teaching bioethics, property, and professional responsibility. Professor Collett has also served as a visiting professor at Notre Dame Law School, Washington University School of Law in St. Louis, the University of Texas School of Law, the University of Houston Law Center, and the University of Oklahoma College of Law. Prior to joining South Texas College of Law, Professor Collett was affiliated with the law firm of Crow and Dunleavy in Oklahoma City, Oklahoma.
We welcome all our witnesses here this afternoon. It is the practice of this Committee to swear in all witnesses——
Mr. NADLER. Before we do, Mr. Chairman——
Mr. CHABOT. Yes?
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Mr. NADLER. Mr. Chairman, I want to join you in welcoming in particular Dr. Seigel, who is the Director of Adolescent Medicine and Chair of Pediatrics at Coney Island Hospital, which is in my district in Brooklyn and just a short walk away from my Brooklyn district office. Dr. Seigel founded the Division of Adolescent Medicine at Coney Island Hospital. He also serves as the Director of Adolescent Medicine at Maimonides Children's Medical Center, at Methodist Hospital, and at Lutheran Medical Center. How he finds time to serve at all these medical centers escapes me, but some people use their time better than some of us. All of these are outstanding medical institutions serving the people of the fourth largest city in America, namely the City of Brooklyn.
He is a respected authority on the care and treatment of young people, especially adolescents. He has worked in our community facing the real problems of real people every day. I believe his perspective will help inform this Committee's work, and I am pleased to join you in welcoming him.
Mr. CHABOT. I am sure that all the other witnesses will also be able to inform the Committee, as well, and we welcome your introduction.
It is the practice of this Committee, as I mentioned, to swear in the witnesses, so if you would all please stand and raise your right hands.
Do you swear that the testimony that you are about to give, that you will tell the truth, the whole truth, and nothing but the truth, so help you, God?
Mrs. CARROLL. I do.
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Mr. MYERS. I do.
Dr. SEIGEL. I do.
Ms. COLLETT. I do.
Mr. CHABOT. Thank you. You can be seated.
Without objection, all Members will have five legislative days with which to submit additional materials for the record.
As you probably know, you have been familiarized by our staff, but each witness will have 5 minutes to testify before the Committee. There are a couple of lights there on your desk. The green light will be on until 4 minutes have elapsed, at which time the yellow light will come on. It tells you that you have 1 minute to come up, and then the red light will come on and we appreciate that you wrap up your testimony. We will give you a little leeway, but not too much because we are on a relatively tight schedule.
We will begin with you, Mrs. Carroll.
TESTIMONY OF MARCIA CARROLL, LANCASTER, PA
Mrs. CARROLL. Good afternoon. My name is Marcia Carroll and I am from Lancaster, Pennsylvania, and I would like to begin by thanking you for inviting me here to speak and to share my family's story. The following is a horrifying series of events centered around my 14-year-old daughter.
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On Christmas Eve 2004, my daughter informed me that she was pregnant. I assured her that I would seek out all resources and help that was available. As a parent, her father and I would stand beside her and support any decision she made.
We scheduled appointments with her pediatrician, her private counselor, and her school nurse. I followed all their advice and recommendations. They referred us to Healthy Beginnings Plus, Lancaster Family Services, and the WIC program. They discussed all her options with her. I purposely allowed my daughter to speak alone with professionals so that she would speak her mind and not just to say what she thought I wanted to hear.
My daughter chose to have the baby and raise it. My family fully supported my daughter's decision to keep her baby and offered her our love and support.
Subsequently, her boyfriend's family began to harass my daughter and my family. They started showing up at our house to express their desire for my daughter to have an abortion. When that did not work, his grandmother started calling my daughter without my knowledge. They would tell her if she kept the baby, she couldn't see her boyfriend again. They threatened to move out of the State.
I told his family that my daughter had our full support in her decision to keep the baby. She also had the best doctors, counselors, and professionals to help her through the pregnancy. We all had her best interests in mind.
The behavior of the boy's family began to concern me to the point where I called my local police department for advice. Additionally, I called the number for an abortion center to see how old you have to be to have an abortion in our State.
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I felt safe when they told me my minor daughter had to be 16 years of age in the State of Pennsylvania to have an abortion without parental consent. I found out later that the Pennsylvania Abortion Control Act actually says that parental consent is needed for a minor under 18 years of age. It never occurred to me that I would need to check the laws of other States around me. I thought as a resident of the State of Pennsylvania that she was protected by Pennsylvania State laws. Boy, was I ever wrong.
On February 16, I sent my daughter to her bus stop with two dollars of lunch money. I thought she was safe at school. She and her boyfriend even had a prenatal class scheduled after school.
However, what really happened was that her boyfriend and his family met with her down the road from her bus stop and called a taxi. The adults put the children in the taxi to take them to the train station. His stepfather met the children at the train station, where he had to purchase my daughter's ticket, since she was only 14. They put the children on the train from Lancaster to Philadelphia. From there, they took two subways to New Jersey. That is where his family met the children and took them to the abortion clinic, where one of the adults had made the appointment.
When my daughter started to cry and have second thoughts, they told her they would leave her in New Jersey. They planned, paid for, coerced, harassed, and threatened her into having the abortion. They left her alone during the abortion and went to eat lunch.
After the abortion, his stepfather and grandmother drove my daughter home from New Jersey and dropped her off down the road from our home. My daughter told me that on the way home, she started to cry. They got angry at her and told her there was nothing to cry about.
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Anything could have happened to my daughter at the abortion facility or on the ride back home. These people did not know my daughter's medical history, yet they took her across State lines to have a medical procedure without my knowledge or consent. Our family will be responsible for the medical and psychological consequences for my daughter as a result of this procedure that was completed unbeknownst to me.
I was so devastated that this could be done that I called the local police department to see what could be done. They were just as shocked and surprised as I was that there was nothing that could be done in this horrible situation.
The State of Pennsylvania does have a parental consent law. Something has to be done to prevent this from happening to other families. This is just not acceptable to me and should not happen to families in this country. If your child goes to her school clinic for a headache, a registered nurse cannot give her a Tylenol or Aspirin without a parent's written permission.
As a consequence of my daughter being taken out of State for an abortion without parental knowledge, she is suffering intense grief. My daughter cries herself to sleep at night and lives with this every day.
I think about what I could have or should have done to keep her safe. Everybody tells me I did everything I could or should have done. It doesn't make me feel any better, knowing everything I did was not enough to protect my daughter.
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It does ease my mind to know that, with your help, we can make a difference and change the law to protect other girls and their families. I urge your support for the ''Child Interstate Abortion Notification Act''. It is critical that this law passes in Congress. The rights of parents to protect the health and welfare of their minor daughters needs to be protected. No one should be able to circumvent State laws by performing an abortion in another State on a minor daughter without parental consent.
Thank you for your time.
Mr. CHABOT. Thank you very much, Mrs. Carroll.
Mrs. CARROLL. Thank you.
[The prepared statement of Mrs. Carroll follows:]
PREPARED STATEMENT OF MARCIA CARROLL
Good afternoon, my name is Marcia Carroll. I am from Lancaster, Pennsylvania. I would like to begin by thanking you for inviting me here to speak and share my family's story. The following is a horrifying series of events centered around my fourteen year old daughter.
On Christmas Eve 2004, my daughter informed me she was pregnant. I assured her I would seek out all resources and help that was available. As her parents, her father and I would stand beside her and support any decision she made.
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We scheduled appointments with her pediatrician, her private counselor, and her school nurse. I followed all of their advice and recommendations. They referred us to Healthy Beginnings Plus, Lancaster Family Services, and the WIC program. They discussed all her options with her. I purposefully allowed my daughter to speak alone with professionals so that she would speak her mind and not just say what she thought I wanted to hear.
My daughter chose to have the baby and raise it. My family fully supported my daughter's decision to keep her baby and offered her our love and support.
Subsequently, her boyfriend's family began to harass my daughter and my family. They started showing up at our house to express their desire for my daughter to have an abortion. When that did not work, his grandmother started calling my daughter without my knowledge. They would tell her that if she kept the baby, she couldn't see her boyfriend again. They threatened to move out of state.
I told his family that my daughter had our full support in her decision to keep the baby. She also had the best doctors, counselors, and professionals to help her through the pregnancy. We all had her best interests in mind.
The behavior of the boy's family began to concern me to the point where I called my local police department for advice. Additionally, I called the number for an abortion center to see how old you have to be to have an abortion in our state.
I felt safe when they told me my minor daughter had to be 16 years of age in the state of Pennsylvania to have an abortion without parental consent. I found out later that the Pennsylvania Abortion Control Act actually says that parental consent is needed for a minor under 18 years of age. It never occurred to me that I would need to check the laws of other states around me. I thought as a resident of the state of Pennsylvania that she was protected by Pennsylvania state laws. Boy, was I ever wrong.
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On Feb. 16th, I sent my daughter to her bus stop with $2.00 of lunch money. I thought she was safe at school. She and her boyfriend even had a prenatal class scheduled after school.
However, what really happened was that her boyfriend and his family met with her down the road from her bus stop and called a taxi. The adults put the children in the taxi to take them to the train station. His stepfather met the children at the train station, where he had to purchase my daughter's ticket since she was only fourteen. They put the children on the train from Lancaster to Philadelphia. From there, they took two subways to New Jersey. That is where his family met the children and took them to the abortion clinic, where one of the adults had made the appointment.
When my daughter started to cry and have second thoughts, they told her they would leave her in New Jersey. They planned, paid for, coerced, harassed, and threatened her into having the abortion. They left her alone during the abortion and went to eat lunch.
After the abortion, his stepfather and grandmother drove my daughter home from New Jersey and dropped her off down the road from our house.
My daughter told me that on the way home she started to cry, they got angry at her and told her there was nothing to cry about.
Anything could have happened to my daughter at the abortion facility or on the ride back home. These people did not know my daughter's medical history, yet they took her across state lines to have a medical procedure without my knowledge or consent. Our family will be responsible for the medical and psychological consequences for my daughter as a result of this procedure that was completed unbeknownst to me.
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I was so devastated that this could have been done that I called the local police department to see what could be done. They were just as shocked and surprised as I was that there was nothing that could be done in this horrible situation.
The state of Pennsylvania does have a parental consent law. Something has to be done to prevent this from happening to other families. This is just not acceptable to me and should not happen to families in this country. If your child goes to her school clinic for a headache, a registered nurse can't give her a Tylenol or aspirin without a parent's written permission.
As a consequence of my daughter being taken out of our state for an abortion without parental knowledge, she is suffering intense grief. My daughter cries herself to sleep at night and lives with this everyday.
I think about what I could or should have done to keep her safe. Everybody tells me I did everything I could have and should have done. It doesn't make me feel any better, knowing everything I did was not enough to protect my daughter.
It does ease my mind to know with your help that we can make a difference and change the law to protect other girls and their families. I urge your support for The Child Interstate Abortion Notification Act. It is critical that this law passes in Congress. The right of parents to protect the health and welfare of their minor daughters needs to be protected. No one should be able to circumvent state laws by performing an abortion in another state on a minor daughter without parental consent.
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Thank you for your time.
Mr. CHABOT. Professor Myers, you are recognized for 5 minutes.
TESTIMONY OF RICHARD S. MYERS, PROFESSOR OF LAW, AVE MARIA SCHOOL OF LAW, ANN ARBOR, MI
Mr. MYERS. Thank you, Mr. Chairman. My name is Richard Myers. I have been teaching and writing about constitutional law for nearly 20 years. I am currently a professor at Ave Maria School of Law in Ann Arbor, Michigan. I am also President of University Faculty for Life. My testimony is on my individual behalf and doesn't necessarily reflect the position of my employer or any other organization.
I am pleased to have been invited to address the constitutional issues raised by H.R. 748. I have been asked to address two constitutional questions. One, is the act a proper exercise of one of Congress's enumerated powers, and two, does the act violate principles of Federalism, perhaps by endorsing the view that States may legislate in an extra-territorial manner?
First, it is basic constitutional law that Congress only has enumerated powers, but despite recent cases affirming that there are some judicially enforceable limits on the scope of the Commerce power, this act is well within Congressional authority. These recent cases, Lopez and Morrison, have dealt with Congressional efforts to reach non-economic local activity under the theory that the local activity had a substantial effect on interstate commerce.
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These recent developments, however, do not raise any concern about whether the act is within the Congressional power to regulate commerce among the several States. The Court has long affirmed that Congressional power to prohibit transportation of items of interstate commerce. To transport another person across State lines is to engage in commerce among the States and is thus within Congressional power to regulate such commerce.
In Darby and other cases, the Supreme Court has clearly established that this power doesn't depend on Congress legislating in furtherance of the policy of the destination State. Moreover, the motive and purpose of a regulation of interstate commerce are matters for the legislative judgment, upon the exercise of which the Constitution places no restriction and over which the courts are given no control.
The abortion notification portion of the act is also a proper exercise of the Commerce power. Although this portion of the act doesn't focus on transporting a minor across State lines, this portion of the act is clearly a regulation of an economic transaction. The many court cases upholding the constitutionality of the ''Freedom of Access to Clinic Entrances Act'' make it clear that the abortion industry is a major interstate industry that Congress may properly regulate. Some lower court cases have probably pushed Congressional authority too far in this area, but surely, recent cases such as Lopez and Morrison create no obstacle to Congressional regulation of the clearly economic side of the abortion industry.
The second area I would like to focus on deals with the arguments that this Act violates principles of federalism, in large part because it allegedly permits a State to legislate in an extraterritorial manner. As Congressman Nadler mentioned, some critics say that what this does is force a woman to carry the restrictive laws of her home State on their backs as they go to new States.
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It seems clear that if you look at the testimony, for example, by Professor Rubin last summer, that this objection is principally driven by opposition to the substantive vision of the act, that is, the idea of protecting the rights of parents to be involved in the decisions that profoundly affect their children, and that the objection is not so much to the understanding of federalism that is presented. If one focuses—if one removes the negative labels, and keep in mind that the transportation portions of the act simply are designed to prevent the evasion of the law of the minor's home State, then it seems clear that the Act reinforces a proper conception of federalism.
The basic idea to prevent people from evading the laws of the home States when the home State is attempting to advance entirely properly objectives that are at the core of its sovereign authority is quite common. Strangely, the critics of this position adopt a strict territorial view of State power that was characteristic of American legal thought in the late 19th and early 20th century, but has been largely abandoned.
The same sort of mistaken objection has recently been made in the area of marriage. So some modern critics argue that it is unconstitutional for a State to refuse to recognize a marriage that is valid under the law of the State of celebration. Such a refusal, these critics say, is supposedly an unconstitutional effort to extend the regulatory reach of the couples' home State. Yet even in the absence of Federal law, like the ''Defense of Marriage Act'', this type of State policy, refusing to recognize a marriage that evades the law of the couples' home State, has long been regarded as appropriate, for hundreds of years in this country. The proper principles of federalism and longstanding law support a State's authority to avoid evasion of its laws.
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This is even more secure when we are not dealing simply with a State law that is being interpreted to apply when some of the relevant events take place outside the State. Here, of course, we are dealing with proposed Federal law, and as Professor Mark Rosen testified last year before Congress, the Federal Government is the appropriate entity of government to umpire these conflicts between State regulatory authority.
Moreover, there is no right to travel problem presented by the Act. Most of the arguments here, I think, are simply not applicable.
I see my time is up. I don't know if I—I can just conclude that——
Mr. CHABOT. You can wrap it up, if you would like to.
Mr. MYERS. The right to travel argument, I think, is just completely a misnomer. The only objection that has any cogency at all is that the Supreme Court has said that the right of travel protects the right of a citizen of one State to be treated as a welcome visitor rather than unfriendly alien when they travel to another State.
But this component of the right to travel simply has no application here. This is protected by article IV of the Constitution and it really deals with discrimination against a citizen of a State simply because of their place of origin. It is designed to prevent States from having unreflective bias against out-of-Staters based on their place of origin. This act doesn't do that at all. What it is designed to do is to allow States to further the substantive policy of the home State, and so a destination State here has a reason to treat the minor differently, not simply because of their place of origin, but to reinforce the law of their home State. And so the right to travel argument doesn't have any application at all.
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Thank you very much.
Mr. CHABOT. Thank you very much.
[The prepared statement of Mr. Myers follows:]
PREPARED STATEMENT OF RICHARD S. MYERS
I am pleased to have been invited to address the constitutional issues raised by H. R. 748, the Child Interstate Abortion Notification Act (hereinafter ''Act''). I have been asked to address two constitutional questions: (1) is the Act a proper exercise of one of Congress's enumerated powers, and (2) does the Act violate principles of federalism, perhaps by endorsing the view that states may legislate in an extraterritorial manner.
First, ''[t]he Constitution creates a Federal Government of enumerated powers.'' United States v. Lopez, 514 U. S. 549, 552 (1995). But despite recent cases affirming that there are judicially enforceable limits on the scope of the commerce power, see, e.g., Lopez, United States v. Morrison, 529 U. S. 598 (2000), the Act is well within Congressional authority. These recent cases have dealt with Congressional efforts to reach noneconomic local activity under the theory that the local activity had a substantial effect on interstate commerce. The scope of these limits on Congressional power is currently before the Supreme Court. See Raich v. Ashcroft, 352 F. 3d 1222 (9th Cir. 2003), cert. granted, 124 S. Ct. 2909 (2004).
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These recent developments do not, however, raise any concern about whether the Act is within Congressional power to regulate commerce among the several states. The Court has long affirmed Congressional power to prohibit interstate transportation of items of commerce. United States v. Darby, 312 U. S. 100 (1941); Champion v. Ames, 188 U. S. 321 (1903). To transport another person across state lines is to engage in commerce among the states and is, thus, within Congressional power to regulate such commerce. Cleveland v. United States, 329 U. S. 14 (1946); Caminetti v. United States, 242 U. S. 470 (1917); Hoke v. United States, 227 U. S. 308 (1913).
The landmark case of United States v. Darby, 312 U.S. 100 (1941), makes this point clear. In Darby, the Court made it clear that Congressional power ''extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.'' 312 U. S. at 113. In Darby and in other cases, the Court has clearly established that this power does not depend on Congress legislating in furtherance of the policy of the destination state. As the Darby Court stated: ''The power of Congress over interstate commerce . . . can neither be enlarged nor diminished by the exercise or non-exercise of state power. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use.'' Id. at 114 (citations omitted). The Court was willing to sustain the federal law involved even on the assumption that Congress was primarily concerned about the local activity and not the interstate transport itself. As the Darby Court stated: ''The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.'' Id. at 115.
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Moreover, as John Harrison stated in his testimony on a prior bill prohibiting interstate transport of a minor to evade the parental involvement law in the minor's home state: ''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 so doing 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.'' Hearing on H.R. 1755 (The Child Custody Protection Act) before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 108th Congress, 2d Session 51 (July 20, 2004)(statement of John C. Harrison).
The abortion notification portion of the Act is also a proper exercise of the commerce power. Although this portion of the Act does not focus on transporting the minor across state lines, this portion of the Act is a regulation of an economic transaction. The many court cases upholding the constitutionality of the Freedom of Access to Clinic Entrances Act (FACE) make it clear that the abortion industry is a major interstate industry that Congress may properly regulate. Some lower court cases have probably pushed Congressional authority too far, see United States v. Bird, 2005 U.S. App. LEXIS (%th Cir. February 28, 2005); Norton v. Ashcroft, 298 F. 3d 547 (6th Cir. 2002), cert. denied, 537 U. S. 1172 (2003); United States v. Gregg, 226 F. 3d 253 (3d Cir. 2000), cert.denied, 523 U. S. 971 (2001), by upholding FACE even when noncommercial activity was involved, but surely recent cases such as Lopez and Morrison create no obstacle to Congressional regulation of the clearly economic side of the abortion industry.
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Second, opponents of this law contend that it is inconsistent with principles of federalism, in large part because it allegedly permits a state to legislate in an extraterritorial manner. This objection was set forth by Peter Rubin in his testimony before the Senate Judiciary Committee in June 2004. He stated: ''The proposed law amounts to a statutory attempt to force a most vulnerable class of young women to carry the restrictive laws of their home states strapped to their backs, bearing the great weight of those laws like the bars of a prison that follows them wherever they go (unless they are willing to go alone). Such a law violates the basic premises upon which our federal system is constructed. . . . [According to Rubin,] the proposition that a state may not project its laws into other states by following its citizens there is bedrock in our federal system.'' The Child Custody Protection Act: Protecting Parents' Rights and Children's Lives: Hearing on S. 851 before the Senate Committee on the Judiciary, 108th Congress, 2d Session 2–3 (June 3, 2004)(statement of Peter J. Rubin).
It seems clear that opposition to the substantive vision of the Act (that is, to protect the rights of parents to be involved in decisions that profoundly affect their children) is driving much of this analysis. It is important and more conducive to a sound analysis of the relevant constitutional principles to remove the negatives labels and to keep in mind that the transportation portions of the Act simply are designed to prevent the evasion of the law of the minor's home state. As others have explained, so understood this Act reinforces a proper conception of federalism.
This point was well-expressed by Mark Rosen in his testimony before this Subcommittee in July 2004. He stated: ''one of the great benefits of federalism is that with respect to policies that are not foreclosed by the Federal constitutional law or Federal statutory law, there can be diversity of approaches that States take, and when you have a law that by its nature can readily be circumvented through travel, as parental notification laws can be, then a Federal statute that helps to ensure the efficacy of constitutional policies does not undermine federalism, but helps to enhance the diversity across States with regard to policies that they're able to pursue.'' Hearing on H. R. 1755 (The Child Custody Protection Act) before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, 108th Congress, 2d Session 10 (July 20, 2004)(statement of Mark D. Rosen). See Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. Pa. L. Rev. 855 (2002).
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The basic idea—to prevent people from evading the laws of their home states when the home state is attempting to advance entirely proper objectives that are at the core of its sovereign authority—is quite common. Strangely, the critics adopt a strict territorial view of state power that was characteristic of American legal thought in the late 19th century and the early 20th century, but has been largely abandoned. The same sort of mistaken objection has recently been made in the area of marriage. So, some modern critics, most of whom are not experts in the relevant field of law, argue that it is unconstitutional for a state to refuse to recognize a marriage that is valid under the law of the state of celebration. Such a refusal is, supposedly, an unconstitutional effort to extend the regulatory reach of the couples' home state. Yet, even in the absence of federal law, such a state policy—that is, to refuse to respect the couples' efforts to evade the law of their home state—has long been regarded as appropriate. For discussion of this issue, see Richard S. Myers, The Public Policy Doctrine and Interjurisdictional Recognition of Civil Unions and Domestic Partnerships, 3 Ave Maria L. Rev. (2005)(forthcoming); Richard S. Myers, Same-Sex ''Marriage and the Public Policy Doctrine, 32 Creighton L. Rev. 45 (1998).
It is quite clear that the real objection is not to a proper understanding of the constitutional principles underlying our system of federalism but, rather, to the substantive policy implicated. So, critics of the standard view that states are permitted to refuse to recognize marriages that violate the strong public policy of the couples' home state are, it seems safe to say, primarily driven by their opposition to the substantive policies of the states with a traditional view of marriage, even if that traditional view enjoys widespread public support, perhaps evidenced by the policy having been adopted by wide majorities of the voting populations in these states. In the context presented here today, the same dynamic seems at work. The real opposition to the Act is not to its understanding of federalism but to the substantive policy (promoting parental involvement in the decision by a minor whether to have an abortion) that the legislation seems designed to permit states to pursue.
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States that have the requisite contacts to the individuals and/or the events involved are permitted to apply their own law. We see this even in the area of contracts where a respect for private ordering has long-standing support in our legal traditions. Even here, states do not allow individuals blanket authority to evade the laws of a state that is competent to legislate on the matter under review. Travel to a state with different law or drafting a choice of law clause to select law that is desired by the parties do not invariably result in successful evasion. A forum state will reject such an attempt when the other state's law is contrary to the fundamental policy of the state whose law the parties are attempting to avoid. This outcome is reflected in the Restatement (Second) of Conflict of Laws section 187 (1971) and in the laws of nearly every state. See Myers, 3 Ave Maria L. Rev. (2005)(forthcoming); Myers, 32 Creighton L. Rev. at 52–55.
These principles are quite basic and are quite commonly accepted. As the current debate about the interjurisdictional recognition of same-sex ''marriages'' and quasi-marital statuses indicates, these principles are challenged when opponents' principal objection is to the substantive policy of the state whose law is being evaded. But basic principles of federalism and long-standing law support a state's authority to avoid evasion of its laws.
This is even more secure when we are not dealing simply with a state law that is being interpreted to apply when some of the relevant events take place outside the state. Here, of course, we are dealing with a proposed federal law, and as Mark Rosen stated, ''[a]s a structural matter, a federal government that umpires the sister states' regulatory powers vis-a-vis one another is eminently sensible, and several constitutional provisions . . . empower Congress to serve that function.'' Rosen Statement, supra, at 15.
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Moreover, there is no ''right to travel'' problem presented by the Act. The Supreme Court has recently considered the right to travel in a case, Saenz v. Roe, 526 U. S. 489 (1999), that seems to have been given rather limited scope by subsequent cases. In any event, Saenz v. Roe does not suggest that the Act is constitutionally infirm. Saenz explained that there are three components to the ''right to travel'' recognized by the Supreme Court. The first component, the right to enter and leave a sister State is not at all implicated by the Act. See Rosen Statement, supra, at 15. The third component, the right of a new citizen to be treated the same as other citizens of the State, is not at all implicated either because the Act deals with situations where the minor has not changed her state citizenship. The second component of the right to travel, the right to be treated as a welcome visitor rather than an unfriendly alien, is not violated by the Act. This second component of the right to travel is protected by the Privileges and Immunities Clause of Article IV of the Constitution. This Clause prevents ''discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it.'' Toomer v. Witsell, 334 U. S. 385, 396 (1948). The kind of discrimination that is constitutionally suspect is discrimination against out-of staters, simply because of their place of origin. That is not at all what the Act attempts to reinforce. The Act is not trying to affirm unreflective bias against non-citizens; rather, the Act is designed to aid states in their efforts to have important substantive policies with regard to their residents followed. Because there is, then, a reason (defined by the law of the minor's home state) apart from the minor'status as an out-of stater to treat the minor differently, the presumption against discrimination is not at all implicated. See Myers, 32 Creighton L. Rev. at 56–59 (discussing this issue in the context of interjurisdictional recognition of same-sex ''marriages'').
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In conclusion, the two constitutional questions I have reviewed do not present any significant obstacle to passage of the Act. The Act is well within the scope of Congressional authority and is perfectly consistent with principles of federalism. Those who oppose this Act would be well-advised to focus their attention on the substance of the legislation.
Mr. CHABOT. Dr. Seigel, you are recognized.
TESTIMONY OF WARREN SEIGEL, M.D., FAAP, FSAM, DIRECTOR OF ADOLESCENT MEDICINE, CHAIRMAN OF PEDIATRICS, CONEY ISLAND HOSPITAL, BROOKLYN, NY
Dr. SEIGEL. Good afternoon. Thank you to Chairman Chabot, Ranking Member Nadler, and Members of the Subcommittee on the Constitution for allowing me to appear before you today.
My name is Dr. Warren Seigel. I am Director of Adolescent Medicine and Chair of Pediatrics at Coney Island Hospital. I also serve, as has already been noted, as the Director of Adolescent Medicine at various institutions in Brooklyn. I am board certified in both pediatrics and adolescent medicine, and among my other medical association involvements, I am currently the President of the New York State Chapter 2, District 2, of the American Academy of Pediatrics.
I am submitting testimony today as a resident of New York State, an experienced health care provider, a leader in the American Academy of Pediatrics and the Society for Adolescent Medicine, and a member of Physicians for Reproductive Choice and Health, known as PRCH. PRCH is a national nonprofit organization created to enable concerned physicians to take a more active and visible role in supporting universal, evidence-based reproductive health. PRCH is committed to ensuring that all people have the knowledge, access to quality services, and freedom of choice to make their own reproductive health decisions.
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I submit this testimony to you today on behalf of the PRCH Board of Directors and our more than 6,500 physician and non-physician members to express our opposition to H.R. 748, known as the ''Child Interstate Abortion Notification Act,'' or CIANA. This bill puts young women's lives at risk. It makes criminals out of caring physicians. And it affects the care of all patients.
I recognize that parents ideally should be, and indeed usually are, involved in health decisions regarding their children. However, the ''Child Interstate Abortion Notification Act'' does nothing to promote such communication. Instead, CIANA places incredible burdens on young women and physicians, infringes on the rights of adolescents to health care that does not violate their safety and health, makes caring family, friends, and doctors criminals, and could be detrimental to the health and emotional well-being of all patients.
As a pediatrician, I believe CIANA will create insurmountable obstacles for adolescents. Young women seeking abortions in a State other than their home State will be forced to comply with the parental notification laws in both States. They will also have to navigate through the complex and emotionally draining judicial bypass procedure in both States. This will cause delays that may be harmful to the young woman's health by forcing her to undergo a later-term procedure.
The American Medical Association states that a delay in receiving care will, quote, ''increase the gestational age at which the induced pregnancy termination occurs, thereby also increasing the risk associated with the procedure,'' unquote. Requiring adolescents to comply with laws in more than one State will certainly increase the delay in receiving care.
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CIANA also requires parental notification for young women receiving abortions in States where they are not permanent residents. Young women who are not trying to circumvent parental notification laws but are, in fact, living temporarily in a State for college or boarding school or other reasons will need to seek the care that is closest to them. CIANA would prohibit these women from the most accessible health care available to them.
Women from States with no parental notification legislation face an additional burden. Even if a young woman is not subject to any parental notification laws in either the State where she is from or the State where she is accessing care, CIANA will require parental notification. Thus, in States with no parental notification legislation, young women will not have access to the judicial bypass option, either.
When judicial bypass is available, however, the delays it may cause are compounded by a mandatory delay period of at least 24 hours, which is required by CIANA. Mandatory delay periods create additional expenses for both young women and their families, requiring overnight stays in hotels and missed days from work or school.
As I mentioned previously, young women as a population are already more likely to seek abortion later in their pregnancy. The Centers for Disease Control have shown that adolescents obtain 30 percent of all abortions performed after the first trimester, and younger women are more likely to obtain abortions at 21 weeks or more gestation. Mandatory delays will only serve to increase these trends.
CIANA also requires a mandatory delay even if a parent is present and consenting. If this legislation is about parental notification, then what is the purpose of this delay if not to keep women from accessing the care that they need in a timely manner?
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I am also concerned that CIANA places extreme and unreasonable burdens on physicians and the other patients they treat. Physicians will be required to have detailed knowledge of the parental notification laws in the 49 States where they do not even practice. It is already time consuming to keep up with the laws of my own State. What this proposed legislation doesn't take into account is the amount of time it is going to take for physicians to go out and earn a law degree. If I were required to keep up to date on the complex and often changing laws of the other 49 States, it would severely cut into the time that I could spend giving quality care to my other patients. The impossibility of this effort means that although I will in good faith try to obey the law, I face being criminalized for inadvertently violating this burdensome and ridiculous requirement.
I see my time is up. May I sum up?
Mr. CHABOT. Yes, go ahead and sum up, Doctor.
Dr. SEIGEL. Thank you. Physicians will be required in some cases to travel to the home State of young women to give notification in person to the parents. This means seeing the young women, leaving the practice to travel to another State to provide in-person notice, returning to the practice, and then performing the procedure, all this for one patient. What becomes of all the other patients seeing their physician for other health care issues during this time? This requirement will not only increase the delay for the procedure, but is simply impossible for a physician to carry out, thereby denying a young woman her right to an abortion.
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The American Academy of Pediatrics is a national medical organization representing the 60,000 physician leaders in pediatrics, of which I am a proud member and leader. We have adopted the following statement regarding mandatory parental notification, and I quote, ''Adolescents should be strongly encouraged to involve their parents and other trusted adults in decisions regarding pregnancy termination, and the majority of them voluntarily do so. Legislation mandating parental involvement does not achieve the intended benefit of promoting family communication, but it does increase the risk of harm to the adolescent by delaying access to appropriate medical care,'' unquote.
This legislation will decrease the ability of physicians to provide quality care to all of their patients by immersing them in legal questions, travel time, and mandatory delay purposes. It is for all of these reasons that we must protect the rights of young women to access safe, affordable, and appropriate health care. We must make it easier for physicians to provide medical services, not make it more difficult.
As a physician, I believe that this legislation represents bad medicine and places politics before the health of our youth. Leading medical organizations and scientific evidence overwhelmingly agree that this legislation would negatively impact the health of adolescents. It is for this reason that I appear in opposition to H.R. 748. Thank you.
Mr. CHABOT. Thank you.
[The prepared statement of Dr. Seigel follows:]
PREPARED STATEMENT OF WARREN SEIGEL
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Thank you to Chairman Chabot, Ranking Member Nadler, and members of the Subcommittee on the Constitution for allowing me to appear before you today.
My name is Dr. Warren Seigel. I am Director of Adolescent Medicine and Chair of Pediatrics at Coney Island Hospital, where I founded the Division of Adolescent Medicine. I also serve as the Director of Adolescent Medicine at Maimonides Children's Medical Center, Methodist Hospital and Lutheran Medical Center. I am Board certified in both Pediatrics and Adolescent Medicine and, among my other medical association involvement, am currently the President of New York State Chapter 2—District II of the American Academy of Pediatrics.
I am submitting testimony today as a resident of New York State, an experienced health care provider, a leader in the American Academy of Pediatrics and the Society for Adolescent Medicine and a member of Physicians for Reproductive Choice and Health(r), or PRCH. PRCH is a national non profit organization created to enable concerned physicians to take a more active and visible role in supporting universal, evidence-based reproductive health. PRCH is committed to ensuring that all people have the knowledge, access to quality services and freedom of choice to make their own reproductive health decisions.
I submit this testimony to you today on behalf of the PRCH Board of Directors and our more than 6,500 physician and non-physician members to express our opposition to H.R. 748, known as the Child Interstate Abortion Notification Act, or CIANA. This bill puts young women's lives at risk, makes criminals out of caring physicians, and affects the care of all patients.
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I recognize that parents ideally should be—and usually are—involved in health decisions regarding their children. However, the Child Interstate Abortion Notification Act does nothing to promote such communication. Instead, CIANA places incredible burdens on both young women and physicians; infringes on the rights of adolescents to health care that does not violate their safety and health; makes caring family, friends and doctors criminals; and could be detrimental to the health and emotional well-being of all patients.
As a pediatrician, I believe CIANA will create insurmountable obstacles for adolescents. Young women seeking abortions in a state other than their home state will be forced to comply with the parental notification laws in both states. They will also have to navigate through the complex and emotionally draining judicial bypass procedure in both states. This will cause delays that may be harmful to the young woman's health by forcing her to undergo a later-term procedure. The American Medical Association states that a delay in receiving care will ''increase the gestational age at which the induced pregnancy termination occurs, thereby also increasing the risk associated with the procedure.'' Requiring adolescents to comply with laws in more than one state will certainly increase the delay in receiving care.
CIANA also requires parental notification for young women receiving abortions in states where they are not permanent residents. Young women who are not trying to circumvent parental notification laws but are, in fact, living temporarily in a state for college, boarding school or other reasons will need to seek the care that is closest to them. CIANA would prohibit these women from the most available health care.
Women from states with no parental notification legislation face an additional burden. Even if a young woman is not subject to any parental notification laws in either the state where she is from or the state where she is accessing care, CIANA will require parental notification. Judicial bypass procedures only exist in states with parental notification laws in place. Thus, in states with no parental notification legislation, young women will not have access to the judicial bypass option.
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When judicial bypass is available, the delays it may cause are compounded by a mandatory delay period of at least 24 hour, which is required by CIANA. Mandatory delay periods create additional expenses for both young women and their families, requiring overnight stays in hotels and missed work or school. As mentioned previously, delaying the abortion procedure may increase the health risk for the young woman. Additionally, young women as a population are already more likely to be seeking abortion later in their pregnancy. The Centers for Disease Control have shown that adolescents obtain 30% of all abortions performed after the first trimester, and younger women are more likely to obtain abortions at 21 weeks or more gestation. Mandatory delays will only serve to increase these trends. CIANA also requires a mandatory delay even if a parent is present and consenting. If this legislation is about parental notification, then what is the purpose of this delay if not to keep young women from accessing the care that they need in a timely manner?
I am also concerned that CIANA places extreme and unreasonable burdens on physicians and the other patients they treat. Physicians will be required to have detailed knowledge of the parental notification laws in the 49 states where they do not practice. It is already time consuming to keep up with the laws of my own state. What this proposed legislation doesn't take into account is the amount of time it is going to take for physicians to get law degrees. If I were required to keep up-to-date on the complex and often changing laws of the other 49 states, it would severely cut into the time that I could spend giving quality care to my other patients. The impossibility of this effort means that although I will in good faith try to obey the law, I face being criminalized for inadvertently violating this burdensome and ridiculous requirement.
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Physicians will be required in some cases to travel to the home state of the young woman to give notification in person to the parents. This means seeing the young woman, leaving their practice to travel to another state to provide in-person notice, returning to their practice, and then performing the procedure—all this for just one patient. What becomes of all the other patients seeing their physician for other health care issues during this time? This requirement will not only increase the delay for the procedure but is simply impossible for a physician to carry out, thereby denying a young woman her right to an abortion.
This bill will grind medical practices to a halt, thereby affecting all types of care that all patients are receiving. Additionally, this legislation does not propose any standards or procedures for inter-state reporting, and will place heavy bureaucratic burdens on physicians who are trying to comply with the law. CIANA makes it impossible for a physician to perform an abortion without neglecting the care of other patients, and is clearly not about protecting young women but simply and blatantly about ending access to abortions—period.
This legislation contains an inadequate exception to protect a young woman's life and no exception to protect her health. This is unconstitutional according to Supreme Court decisions in Roe v. Wade, Planned Parenthood v. Casey and Stenberg v. Carhart. CIANA does not take into account psychological factors that may threaten a woman's life and will not consider an exception where her health is concerned.
Although this legislation is supposedly aimed at increasing parent-child communication, the government cannot mandate healthy families and, indeed, it is dangerous to attempt to do so. Research has shown that the overwhelming majority of adolescents already tell their parents before receiving an abortion. In fact, the younger the woman is, the more likely she is to tell her parent. The American Academy of Pediatrics, a national medical organization representing the 60,000 physician leaders in pediatric medicine—of which I am a member and leader—has adopted the following statement regarding mandatory parental notification:
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Adolescents should be strongly encouraged to involve their parents and other trusted adults in decisions regarding pregnancy termination, and the majority of them voluntarily do so. Legislation mandating parental involvement does not achieve the intended benefit of promoting family communication, but it does increase the risk of harm to the adolescent by delaying access to appropriate medical care (emphasis added).
It is important to consider why a minority of young women cannot inform their parents. The threat of physical or emotional abuse upon disclosure of the pregnancy to their parents or a pregnancy that is the result of incest make it impossible for these adolescents to inform their parents. Under CIANA, young women would be forced to put themselves in dangerous situations in order to receive medical care.
Young women have many reasons for needing to travel out of state to have an abortion. Eighty-seven percent of U.S. counties have no abortion provider. In some states, there is only one provider available. In cases like these, the nearest abortion provider may be in another state. Financially, an abortion may be more affordable at a facility in another state. As I mentioned before, an adolescent may be temporarily residing in another state and need local care. CIANA penalizes young women for seeking the closest and most affordable health care.
This legislation will decrease the ability of physicians to provide quality care to all of their patients by immersing them in legal questions, travel time and mandatory delay periods. Increasing these penalties will have the added effect of decreasing the number of adolescents that seek health care for any reproductive health need. Mandatory, burdensome and confusing legislation may lead to an increased distrust of the physicians who must now enforce this legislation. In addition to minimizing care for all other patients, this may lead to decreased access of contraceptives, later term abortions among a population already having later abortions and an increase in illegal or self-induced abortions—all of which are detrimental to a young woman's health.
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Physicians for Reproductive Choice and Health(r) is in absolute agreement with leading medical organizations on this issue. The American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Physicians and the American Public Health Association all oppose mandatory parental-involvement laws because they endanger the health of adolescents and pose undue burdens on physicians. Additionally, the American Academy of Pediatrics and the Society for Adolescent Medicine have opposed similar legislation, entitled the Child Custody Protection Act, currently under consideration in the Senate as S. 8, because of the harm it may cause adolescents.
It is for all of these reasons that we must protect the rights of young women to access safe, affordable and appropriate health care. We must make it easier for physicians to provide needed services, not more difficult. As a physician, I believe that this legislation represents bad medicine and places politics before the health of our youth. Practicing physicians and scientific evidence overwhelmingly agree that this legislation would negatively impact the health of adolescents. It is for this reason that I appear in opposition to H.R. 748.
APPENDIX:
Council on Scientific Affairs, American Medical Association. Induced termination of pregnancy before and after Roe v. Wade: trends in the mortality and morbidity of women. JAMA 1992;268:3231–3239.
American Academy of Pediatrics, Committee on Adolescence. The adolescent's right to confidential care when considering abortion. Pediatrics.1996;97:746–751.
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Elam-Evans LD, Strauss LT, Herndon J, Parker WY, Bowens SV, Zane S, et al. Abortion surveillance—United States, 2000. MMWR CDC Surveill Summ 2003;52(SS–12):1–32.
Mr. CHABOT. Our final witness this afternoon will be Professor Collett. You are recognized.
TESTIMONY OF TERESA STANTON COLLETT, PROFESSOR OF LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, MINNEAPOLIS, MN
Ms. COLLETT. Mr. Chairman, Representative Nadler, Members of the Committee, thank you for the opportunity to appear.
I am in support of CIANA for a number of reasons, but primarily it is because I believe that the widespread consensus represented by the number of States that have through their elected representatives come to the conclusion that parents should be involved in the decision of their minor daughters concerning the obtaining of an abortion is something that should be reinforced by Federal law.
As you can see by the map that has been prepared from the Council for State Legislatures, the vast majority of States in this country have either parental notice or parental consent laws. There are only a tiny minority of States that have not chosen legislatively to enact such protection. This law furthers the will of the people on this issue.
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Mr. CHABOT. Professor, could you point out what the colors are there as far as what they represent?
Ms. COLLETT. Certainly, Mr. Chairman. The blue States indicate States that have parental consent laws. The red States indicate States that have parental notification laws. The purple States are States that indicate either parental notice or parental consent. Now, I would actually disagree with the classification of Oklahoma and Connecticut, but I drew this off of the Council for State Legislatures website. The white States have not enacted laws, but you can see that they constitute only six States in the Union at this point in time. Oklahoma's law is actually an abortion liability law, not a parental consent or notification law, as the Tenth Circuit has defined it.
In addition to that, you will see that the majority of abortion providers and abortion advocacy groups throughout this country refer to the fact that a substantial minority of minors will voluntarily involve their parents in the decision to obtain abortions. When you look at the sources they cite on that, they actually cite a study that was done by Stanley K. Henshaw and Kathryn Kost. Stanley K. Henshaw is the demographer for the Guttmacher Institute, which is Planned Parenthood's research affiliate. It is a 1992 article and he says that 61 percent of all minors will voluntarily involve a parent absent a parental involvement law. He indicates that this was based on a survey of 1,500 unmarried minors, which was a nationally representative sample.
In fact, when you look at the actual article, it did not involve any minors from States that had parental involvement laws at the time, of which there were 21 States at that point in time. Therefore, none of the minors involved in the survey actually were subject to a law. In addition to that, he did not survey the parents of these minors, so we simply had self-reporting. So the survey itself is not particularly reliable.
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But the real example of experimenter bias or researcher bias of this particular survey is the only thing he asked these minors were, what were the adverse effects of this particular parental involvement? The number one adverse effect that the minors indicated for parental involvement, by 40 percent, was increase of parental stress. Now, I would suggest that, in fact, that could equally be indicative of good parenting as opposed to bad parenting. It also indicated that another adverse effect, according to 14 percent of the respondents, was that the minor was no longer allowed to interact with the individual who had impregnated her. Again, I think whether that is an adverse effect is one that is subject to diverse judgments.
He also discloses that of those minors who indicated that there was individuals involved, 95 percent said that their mothers were involved. Ninety-nine percent indicated that an adult was involved. But 53 percent of those under 15 said no adult was involved, but where only an adult was involved and no parent was involved, a significant number indicated that a boyfriend was involved in deciding or arranging for the abortion. Ninety-three percent of those 15 and under said that the boyfriend was involved. Seventy-six percent indicated that the boyfriend helped pay for the abortion. Clearly, a number of the young girls who obtain abortions without their parents' knowledge were encouraged to do so by a boyfriend who could be charged with statutory rape.
One of the substantial State interests that backs CIANA is, in fact, to help States protect minors from statutory rape. In addition to that, Mr. Chairman and Members of the Committee, the Congress has looked at the problem of teenage pregnancy and studies have consistently shown that adolescent pregnancies are often the result of impregnation by men who are at least 5 years older than the minor who is impregnated. One study of 46,000 pregnancies by school-age girls in California showed that 71 percent, or over 33,000, were fathered by adult post-high school men whose mean age was 22.6 years, an average of 5 years older than the mothers. Even among junior high school girls, the men were six to 7 years their senior.
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Clearly, there is substantial State interest and there is substantial consistency among the States in the Union that parents should be involved. CIANA is both constitutional and is consistent with sound public policy.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much, Professor.
[The prepared statement of Ms. Collett follows:]
PREPARED STATEMENT OF TERESA STANTON COLLETT
Collett1.eps
Collett2.eps
Collett3.eps
Collett4.eps
Collett5.eps
Collett6.eps
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Collett7.eps
Collett8.eps
Collett9.eps
Collett10.eps
Collett11.eps
Collett12.eps
Collett13.eps
Collett14.eps
Collett15.eps
Collett16.eps
Collett17.eps
Mr. CHABOT. And now, the Members will have 5 minutes to ask questions and I yield myself 5 minutes for that purpose.
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Mrs. Carroll, I will begin with you, if I can. I first of all just want to say that it is my clear opinion that you did everything you could under the existing law to protect your daughter, so there is no way that you are in any way responsible for this as far as I am concerned.
But let me ask you, do you think it is dangerous for young girls to be coerced into having an abortion by adults who may be trying to protect their own interests rather than the interests of the pregnant girl? For example, as a parent, is there information that you would have shared with the doctor, and did the clinic sufficiently ensure that your daughter would receive follow-up care?
Mrs. CARROLL. No, they didn't. She received one piece of paper that said that she needed to make an appointment in 2 weeks for post-care with the blanks left open. They did not schedule that. When I did take her to her OB, he asked if there was a paper that they wanted sent in to clarify that she did get post-care and she said, no, there was nothing that was given.
Mr. CHABOT. Do you think it is dangerous for a young girl to——
Mrs. CARROLL. Yes. They had no idea—they didn't know if she was allergic to anything, what her medical history was. They had no clue about anything.
Mr. CHABOT. Okay.
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Mrs. CARROLL. She told me that they talked to her for about 5 minutes and that was it.
Mr. CHABOT. And you said your daughter is still going through difficulties psychologically with respect to this?
Mrs. CARROLL. Yes.
Mr. CHABOT. Thank you. Professor Myers, let me ask you, would you please discuss the similarities between CIANA and the ''Mann Act'' or other acts of Congress in which Congress has similarly utilized its Commerce Clause authority.
Mr. MYERS. The Mann Act is a good example. That is just one of many instances where Congress has used its authority to regulate commerce. Clearly, transporting people across State lines has been interpreted as commerce among the several States and Congress has been viewed as well within its authority to achieve objectives that might undermine State laws by transporting people to a State for immoral purposes or other purposes that Congress objects to.
Here, what the Congress's basic objective seems to me is to try to reinforce the views of the home States, and in that sense, I think it is even clearer that it is permissible under the ''Mann Act'' line of cases.
Mr. CHABOT. Thank you. Dr. Collett, let me ask you a question. Dr. Seigel had stated in his written testimony, I think also said this orally, that, quote, ''under CIANA, young women would be forced to put themselves in dangerous situations in order to receive medical care,'' unquote. But that is not really accurate, is it? CIANA clearly does not require parental notification in cases, for example, of abuse or neglect. What are your views about the points that Dr. Seigel made in that area?
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Ms. COLLETT. Well, in fact, the bill has an express exception for a situation where the minor is willing to sign a written statement that she is a victim of sexual abuse, neglect, or physical abuse, and where the physician will notify the authorities specified to receive reports of child abuse.
In fact, in Manning v. Hunt, the Fourth Circuit specifically dealt with a similar requirement where judges in judicial bypass proceedings were required to report where a minor was seeking a bypass on the basis of potential abuse and the court said that the only people that would benefit from not having a reporting duty would be the potential abuser.
It is very similar to the case out in Arizona where Planned Parenthood accepted a young girl who was being sexually assaulted by her foster brother. She was impregnated. They secretly gave her an abortion, notified no one in the household, gave her the abortion, sent her back into the household. She was sexually assaulted again. She became pregnant a second time and was sent back for the second abortion. Finally, it was revealed, and they were sued and held civilly liable for the failure to report under the Arizona laws.
This has got an exemption, but it is a very sensible exemption that requires the physician to report.
Mr. CHABOT. Thank you. Dr. Seigel, with the time I have remaining, you stated in your written testimony that under CIANA, minors will be forced to comply with parental notification laws and judicial bypass provisions in both her home State and the State where the abortion is to be performed, but that is not correct.
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CIANA's first part penalizes a transporter who seeks to circumvent a State parental involvement law. It imposes no obligations on the minor. The second part of CIANA places a duty only on those abortion providers in States that do not have parental involvement laws, and if a minor presents the abortion provider with a court order she obtained from her own State court allowing her to bypass the parental involvement law, then the abortion provider does not have to give parental notice. So the bill simply doesn't require a minor to comply with multiple judicial bypass procedures. Do you disagree?
Dr. SEIGEL. I believe CIANA is detrimental to all patients. I think we are putting burdens on the patient, the young woman who needs to get adequate medical care.
The fact of the matter is, communication is already happening, and I would like to just take a moment, if I may, to express my disappointment in the medical community. I wanted to say to Mrs. Carroll that I am very sorry about what I heard happen to her daughter. It is an example of how the medical community has let you down, your daughter down, and your entire family.
I am concerned that when physicians are burdened with legalities, we will wind up spending more time learning about the legalities and the changing legalities of our laws and not spend the time that a physician should have spent with your daughter.
Mr. CHABOT. My time is expired, but I would just, in response to that, say that it would seem that it wouldn't be particularly difficult to have a chart that would show the States in the surrounding area, what the laws are. It would seem that is the least that one should do when you are considering something as significant as terminating the unborn child that that girl is carrying, so——
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Dr. SEIGEL. My understanding is it is not as simple as the color——
Mr. CHABOT. We obviously just have to agree to disagree on that, and my time is expired.
I will now recognize the gentleman from New York.
Mr. NADLER. Thank you. Let me ask Professor Myers, in the situation, the very unfortunate situation described by Mrs. Carroll, forgetting CIANA, I counted about five different crimes there—harassment, stalking, interstate kidnapping, conspiracy, assault. Don't you think in that situation that there were a number of crimes committed and that the real problem, or that a real problem—maybe not the only one—is not the absence of this bill but the absence of prosecution and enforcement of existing law?
Mr. MYERS. I think you are right that it sounds like there were many other violations. I think one of the problems with the remedies you suggest, prosecution, is they are after the fact, so that doesn't help her daughter——
Mr. NADLER. Well——
Mr. MYERS.—and it doesn't help Mrs. Carroll——
Mr. NADLER. Enforcement of this bill would also be after the fact. It is always after the fact. Enforcement of any law has to be after the fact.
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Mr. MYERS. I think you could—I would hope we could assume that the physicians, as Dr. Seigel said, would try to comply with the law, and if they made an effort to provide notice in this situation, it would have helped to protect Mrs. Carroll's daughter. It seems like in that situation, if we are trying to protect the choice of young women, that that would be one way to further it——
Mr. NADLER. But you would agree that——
Mr. MYERS.—requiring notice.
Mr. NADLER.—the police told Mrs. Carroll that there was nothing they could do in the situation. They are probably wrong. They should have, or the D.A. or somebody should have initiated enforcement of criminal law at that point.
Mr. MYERS. I think it sounds like that there were violations ongoing, that there were other things that could have been done. In this situation, if——
Mr. NADLER. Thank you very much.
Mr. MYERS.—they had required notice——
Mr. NADLER. I only have 5 minutes, so thank you very much.
Dr. Seigel, you have already expressed in your opinion that the doctors did the wrong thing. Talk about, for a moment, and then I have another question for you, the real world situation, not in this extreme situation, but of young women who cannot confide in their parents, or feel they cannot confide in their parents, who are not being, in effect, kidnapped by somebody else, who seek the help of a brother or sister or grandmother or member of the clergy or someone to help them. Do we see those situations now? Are those real situations? Are they more common or less common than this sort of thing?
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Dr. SEIGEL. Well, the truth is that they are uncommon. They are uncommon. The vast majority of adolescents do speak to their parents, not just about abortion. When a girl comes in—we are just speaking about young women today. When a girl comes in and I speak to her and it is related to pregnancy and there is an issue about whether she is going to terminate, have an abortion, my responsibility as a health care provider is to encourage her telling her parent, and if she feels unsafe, it is my responsibility to find out why she is unsafe. Is she being sexually abused at home? Is she worried about physical abuse at home? Is she worried about emotional abuse at home?
I will tell you a very quick story, since you know New York. We have a large immigrant population, and one of my first patients, an arrival from Honduras, had been in New York for about a year. She came in under the guise of coming in just for a school physical. In the course of my history taking, I realized that she hadn't had a period in two or 3 months. A pregnancy test was positive and I gave her her options and she told me that she wanted to have an abortion but she could not tell her parents because she said they were devout Catholics and good girls just don't do this in our country.
I gave her some scenarios that I could tell her mother with her in the room or she could tell her mother with me in the room, but that I would protect her from physical harm. She was concerned that her father would beat her up. And, in fact, she did allow me to tell her mother with her in the room, and as soon as I told the mother that her daughter was pregnant, she got up to hit her, and luckily my reflexes were faster 15 years ago and I was able to stop that from happening.
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This is real world stuff, and the things that these girls are worried about occurs every day. Again, it is a minority. The vast majority of my patients do say, yes, this is important, after I explain to them this is a surgical procedure and if there is a problem after, somebody needs to know. Somebody needs to drive you to the hospital. Somebody needs to bring you home. But sometimes it is not the parent that is the perfect person to let in on this difficult situation.
Mr. NADLER. Thank you. Let me ask the last question. The health exception in this bill, which says you don't have to—the health exception is only for life-threatening conditions. Is that, from your knowledge of the state of the law now, the Stenberg decision and others, is that anywhere close? Or let me ask Professor Myers. Unfortunately, we don't have—on our side, we were only permitted one-quarter of the witnesses. We don't have a lawyer here, a sympathetic lawyer, but let me ask Professor Myers—not sympathetic to my point of view.
How can you justify when the Stenberg case of the Supreme Court clearly said you have to have both a life and health exception to allow this sort of, these requirements in a bill in order to render it constitutional, this is clearly only with life-threatening. How can this possibly be constitutional?
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
Mr. MYERS. It seems to me from looking at the Supreme Court cases is that when the Court insists on a life and health exception, a broader health exception, as you suggest, they are in situations where the law actually prevents somebody from getting an abortion. In these situations, what we are talking about are notice provisions that the Court has been much more sympathetic to and has upheld in virtually every case because the Court takes the view that a notice, unlike a veto or some other law that tries to actually ban abortions in certain circumstances, doesn't really present a burden on the woman. At least, that is how the courts evaluate it. So I would say that the broader health exception isn't necessary under the Supreme Court cases.
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Mr. CHABOT. The gentleman's time has expired.
The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes.
Mr. FRANKS. Thank you, Mr. Chairman.
Mrs. Carroll, notwithstanding the expertise and the erudite knowledge of the rest of the panel here, it seems to me that your testimony is one of first-hand knowledge, and it is always a very powerful thing when someone who has actually experienced a circumstance is able to speak to the issue. For my part, I just express a sincere gratitude to you for having the courage to come before this Committee. I know it can't be easy to come before a Congressional Committee, and yet it seems easy to examine the motivations for being here. You know, this was your daughter. This is your daughter that was taken without your permission——
Mrs. CARROLL. Yes, sir.
Mr. FRANKS.—in a sense, exploited and really abused for someone else's purpose. It seems that oftentimes we forget that sometimes abortion is done not for a young girl, but to a young girl by a man for the sake of another man.
Mrs. CARROLL. Right.
Mr. FRANKS. I just, again, express my encouragement to you for being willing to come down and do this. I know it is not only protecting your own daughter, but the hope that, somehow, this will protect a mother in the future from having to go through what you went through.
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I guess my question to you is, with all of the heartache and the loss of your grandchild and the abuse of your child, what have been the long-term effects, if any, on your daughter at this point? What is her state of mind now? Do you think she suffers from any of the—that this has had a negative long-term effect on her?
Mrs. CARROLL. Well, it happened not too long ago, but she does suffer. She has gone to counseling for this. I just know that she cries and she wishes that she could redo everything, relive that day over. It is just sad that it had to happen this way and this is how she had to, you know, this is what she had to go through. But she did want me to come here today and speak on her behalf, because she said, ''Mom, just one phone call was all it would have taken to stop this from happening to another girl,'' and I said, yes, just one phone call. And so she asked me to come here just for her sake and for other girls' safety to speak and let you know what was happening.
There are going to be long-term effects, and she understands that. But I let her know that everything will be all right eventually and that she can overcome any obstacle and just to be strong. God will get us through this.
Mr. FRANKS. You said that maybe one phone call could have made the difference in her case. Do you think that that would indicate that maybe if this law had been in place at the time, that it would have either been a deterrent to those taking your daughter across State lines or would have been in her own mind? Do you think it could have helped——
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Mrs. CARROLL. Yes, I think it could have, because when they came to my house one time, I asked them to please stop coming by and stop harassing us and they told me they weren't harassing us, that they had spoken to a lawyer. So I am sure that they had help on how to get by the laws of our State, because I told them, I said, well, if you have spoken to a lawyer, then you can sign away all your rights and you won't be bothered again and then you won't have to bother us any more. And it is just—I know that one phone call would have saved her. She told me that she was the only—she was the youngest girl in there, she thought, and she was the only one crying, and nobody questioned that, really, you know.
Mr. FRANKS. I just again reiterate my gratitude to you and just respect for you——
Mrs. CARROLL. Thank you.
Mr. FRANKS.—because it was kind of difficult, I am sure, to hear some of the arguments that are made in opposition to something like this. I mean, sometimes we just have got to open our eyes and put all of the nonsense aside and say, what are we really talking about here? We are talking about parents——
Mrs. CARROLL. Right.
Mr. FRANKS.—whose children are taken without their permission across the State line to have another child killed, and it is astonishing to me that somehow we are so erudite and so sophisticated that we miss that basic, fundamental, undeniable point. It is beggars' comprehension.
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Mrs. CARROLL. Right.
Mr. FRANKS. But yet you have had the courage to see above all that and I encourage you and wish you the best for your daughter and for your future.
Mrs. CARROLL. Thank you.
Mr. FRANKS. Thank you.
Mr. CHABOT. The gentleman's time has expired.
I would note for the panel, both here and down there, that light over there is apparently on the blink. This light is still functioning over here.
The gentleman from Virginia, Mr. Scott, who was kind enough to come to my district recently and we had, I thought, an excellent hearing there, a field hearing, and so I want to thank him again for making that trip and sorry that we had weather here and your flight got canceled and everything, but I understand you got back home. I am not taking your time here, by the way, in my rambling. [Laughter.]
Even though he and I may disagree on this issue, I have a great amount of respect for him. Now you can disregard everything he says from here on. [Laughter.]
Just kidding. Mr. Scott is recognized for 5 minutes.
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Mr. SCOTT. Thank you, Mr. Chairman. I appreciate your holding the hearing in Cincinnati. It shows that there are things that we can work on and agree on. Unfortunately, there are also things that we disagree on.
I would ask Dr. Seigel, following up on that last question, I don't think you got to the end of your testimony. Have medical organizations taken a position on mandatory notice and consent laws?
Dr. SEIGEL. Yes. Actually, PRCH is in agreement with leading medical organizations on this issue. The AMA, for example, the American College of Obstetrics and Gynecology, the American College of Physicians, and the American Public Health Association all oppose mandatory parental involvement laws because they endanger the health of adolescents and impose undue burdens on physicians.
Additionally, the American Academy of Pediatrics and the Society for Adolescent Medicine have opposed similar legislation entitled the Child Custody Protection Act, which is currently under consideration in the Senate as S. 8, because of the harm that it may cause adolescents.
Mr. SCOTT. And so, on balance, they have judged that children would be more endangered with the passage of this bill than helped?
Dr. SEIGEL. Correct. However, all——
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Mr. SCOTT. Do they take the position that it is a good idea to encourage the children to seek parental involvement?
Dr. SEIGEL. Not only do all of those organizations encourage that appropriate counseling for young women include them divulging the pregnancy to the parents, but also they have pushed us to start teaching it in medical schools, to our residents, to our fellows, in all of our programs throughout the country. This is the standard of care of medicine as it should be in this country right now, and to do anything less, in my view, is just not appropriate.
Mr. SCOTT. Thank you. Professor Myers, you mentioned that you don't need a health exception in this bill. It has no health exception. Is your——
Mr. MYERS. Well, it has a variety of exceptions that I think are crafted to protect——
Mr. SCOTT. Does it have a health exception?
Mr. MYERS. It has the—there is an exception for—there is a judicial bypass in the minor's home State——
Mr. SCOTT. Does it have a health exception?
Mr. MYERS. It has an exception for the life situation and in the sexual abuse and neglect situation.
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Mr. SCOTT. It has a partial life exception. Does it have a health exception? Well, let me just say it has no health exception. Can you cite any case that supports the contention that you do not need a health exception in this bill? Carhart v. Stenberg would suggest that you need a health exception. Can you cite a case that would suggest that you do not need a health exception?
Mr. MYERS. I think, as I mentioned earlier, I think the understanding of Stenberg was based on the Court's view that the law there actually prohibited abortions in certain situations because of the definition.
Mr. SCOTT. So you are citing——
Mr. MYERS. So in that situation——
Mr. SCOTT. You are citing, Stenberg, then, as the case that we should rely on?
Mr. MYERS. No. What I am saying is it required a health exception because the law was an actual obstacle to a woman getting an abortion.
Mr. SCOTT. Can you cite a case that we can review—can you cite the name of a case that we can review to lead us to the conclusion that you don't need a health exception in this bill?
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Mr. MYERS. I think the——
Mr. SCOTT. The name of a case.
Mr. MYERS. The case that I think has the best understanding of the Supreme Court's case law in this area is the Fourth Circuit cases, Blueridge?
Ms. COLLETT. Hodgson v. Minnesota, Representative Scott, is a United States Supreme Court case where there was no health exception and it involves a parental notice act.
Mr. SCOTT. Thank you. Ms. Collett, in two States, adjoining States, I guess Washington and Oregon, neither of which has any parental involvement law, if you go from one to the other, does this bill require parental notification?
Ms. COLLETT. Yes, it will.
Mr. SCOTT. Even though neither State has that provision?
Ms. COLLETT. That is correct.
Mr. SCOTT. Professor Myers, if the Commonwealth of Virginia feels that casino gambling is immoral, under the idea and the principles in this bill, could we pass legislation prohibiting these buses from gathering up people and transporting them across State lines to go to Atlantic City, New Jersey to gamble in a casino?
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Mr. MYERS. I think it is the sort of thing, and I teach conflicts of law, as happens all the time, where States as long as they have a proper interest——
Mr. SCOTT. Is the answer yes?
Mr. MYERS.—in protecting their residents have an interest in applying their law——
Mr. SCOTT. I am almost out of time. Do you feel that is a yes?
Mr. MYERS. Well, I think that one is this is a Federal law, so whether the State of Virginia has that authority is really immaterial. I think that they do have the right to legislate——
Mr. SCOTT. Let me ask a couple of other quick questions. Under the bill, is it legal for the teenager to cross State lines by herself? That would not be a violation of this bill, is that right?
Mr. MYERS. The law doesn't focus on the minor.
Mr. SCOTT. Would it be legal to transport someone to the State line, without crossing the State line, and then dropping the child off at the State line? Would that be legal under the bill?
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Mr. MYERS. It turns on transporting somebody across the State lines for the——
Mr. SCOTT. Would an older sister——
Mr. MYERS.—purpose of evading their home State's law.
Mr. SCOTT. Would an older sister be vulnerable under this act?
Mr. MYERS. It applies to persons who have the proper mens rea who are trying to transport a minor for purposes of evading her home State's law, so yes, it applies——
Mr. SCOTT. That would include an older sister?
Mr. MYERS.—it applies to—yes, it doesn't have an exception for——
Mr. SCOTT. And finally, if you catch a taxicab and in the conversation in the back make it clear that you are going from Kansas City, Kansas, to Kansas City, Missouri, for the purpose of getting an abortion and evading some parental consent laws, is the taxicab driver vulnerable under the bill?
Mr. MYERS. I think it is really unrealistic to think that they would fall within the statutory requirement of knowingly transporting with the intent of abridging the rights of parents. So if you actually had a taxicab service that was set up for the purpose of evading the State law——
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Mr. SCOTT. So if you had a taxicab driver——
Mr. MYERS.—fine, but in this situation——
Mr. SCOTT.—who listens to the conversation——
Mr. MYERS.—that you describe, I don't think that would fall within the definition of this statute.
Mr. SCOTT. If you listen to the conversation where the teenager says, ''Please take me to the abortion clinic. I can't get my parents' permission here. Take me across State lines,'' the taxicab driver would or would not be vulnerable?
Mr. MYERS. I don't think they would have the requisite intent under the statute.
Mr. CHABOT. The gentleman's time has expired, and I think that gentleman asked that same probing question in the last hearing and I think it was basically that the principal objective of the taxicab driver is to receive a fare, not to transport somebody for the purpose of getting an abortion, and so, therefore, probably wouldn't——
Mr. NADLER. Mr. Chairman, if I may comment, with all due respect to Professor Myers, the moment that taxicab driver knows the purpose of the trip, if he is crossing the State line, he is doing it with knowledge and intent. He would clearly be vulnerable under this Act.
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Mr. CHABOT. I would encourage taxicab drivers not to do that. [Laughter.]
But if they did, we can see if they would be prosecuted or not.
The gentleman from Iowa, Mr. King, is recognized for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. I want to thank the witnesses for their testimony today and I regret that there was a large part of it that I missed. I have been able to review some of the testimony and I do know I would say, Mrs. Carroll, how difficult that is to come before this Committee and give this testimony.
I am curious, with all that you have been through as a family, have you had any contact with the family of the father, either the father or his family, since this time?
Mrs. CARROLL. No. They never contacted me to check on my daughter at all. She has spoken with him—the boy at school.
Mr. KING. Does that continue?
Mrs. CARROLL. Yes, at school.
Mr. KING. Thank you. And Dr. Seigel, your testimony focused to some degree on the burdens imposed upon people that are seeking an abortion, that being a professional opinion of you as a doctor. I am wondering if that burden in transportation or finances or delay, that being a professional opinion, what you might have is a professional opinion with regard to any psychological damage that might be caused to the young lady who got the abortion and to the people who carry the guilt who carried her across the State line.
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Dr. SEIGEL. Well, first, I am not here giving my personal opinions. I am speaking on behalf of PRCH as well as the other organizations that I am a leader in, which is the American Academy of Pediatrics. So my concerns here are not just about the health concerns and health risks to the young woman who is having an abortion, but also the psychological risks, and that is one of the reasons I am concerned that there is inadequate language in CIANA to protect the psychological health as well as the physical health of adolescents, and that is one of the reasons we are opposed to CIANA.
I am concerned because everyone involved in the care of this young woman becomes criminalized—the family who helps this adolescent, the physician who helps this adolescent, as was mentioned earlier, not just an older sibling, but a grandmother.
Mr. KING. Doctor, from a personal and human perspective, do you believe that the people who organized and transported this woman's daughter across the State line. circumvented the parental responsibility, do you think they should carry any moral guilt?
Dr. SEIGEL. I believe, in addition, the medical community let Mrs. Carroll and her family down, as I—unfortunately, I don't think you were here, but I did say that. I believe that we are all justifiably at fault. The medical community standard of care is to make sure that an adolescent is consenting to whatever she does and get an adult involved. However, I do not believe that the government can mandate good family communication.
Mr. KING. Do you recognize that Mrs. Carroll's daughter carries guilt, as well?
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Dr. SEIGEL. Absolutely, and I, as a physician, am embarrassed——
Mr. KING. And when you weigh that psychological burden that she will carry against the inconvenience for a young co-ed on a college campus that you allege would be brought about by this legislation, and then your testimony that college students would be negatively affected when seeking an abortion at a clinic, and you weigh that against, in your professional opinion, the inconvenience as compared to the guilt?
Dr. SEIGEL. I wouldn't characterize this as an inconvenience. If we are talking about later-term abortions, we are talking about significant medical risks. So I would not—I think it is a mischaracterization to call it an inconvenience.
Mr. KING. Thank you, Dr. Seigel, and I would direct my next question, then, to Professor Myers. Professor Myers, I would ask if you could address the subject matter for this Committee and for the record with regard to three rights that are in our Declaration—life, liberty, and the pursuit of happiness. Could you define as to whether they are co-equal rights or prioritized rights?
Mr. MYERS. I think that, really, the right to life is the basic objective. If you don't have that, you really don't have any other—any right at all, so I think that that is really the fundamental right. This law is designed to protect that in a sense kind of indirectly by having parents involved in important life decisions of their minor children. It seems to me that it is entirely supportive of that core right.
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Mr. KING. I thank you, Dr. Myers, and I just conclude with this, that it is my opinion that they are prioritized rights, that the right to life is paramount over anyone's liberty and no life should be taken because someone else wanted to exercise their liberty, and neither should someone's pursuit of happiness infringe upon the liberty of anyone else. So I will argue that there are prioritized rights founded by our Founders and I think that is what we need to keep in mind in this and I fully support this bill.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman's time has expired.
Mr. NADLER. Mr. Chairman?
Mr. CHABOT. Yes, the gentleman from New York?
Mr. NADLER. I just want to point out briefly, especially for Congressman King's benefit, who wasn't here earlier, that in questioning earlier, it was conceded essentially by everybody that the conduct of the people involved with Mrs. Carroll's daughter was not only unconscionable, but violated four or five different criminal laws in existing law.
Mr. CHABOT. All right. I want to thank the panel for coming here this afternoon. I think this testimony was very helpful. We want to, especially, Mrs. Carroll, thank you for appearing here this afternoon and we are very sorry for the experience that you and your family had in this matter. So again, we want to thank everyone for being here.
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If there is no further business to come before the Committee, we are adjourned. Thank you.
[Whereupon, at 3:49 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
Good afternoon. I'd like to thank everyone for being here for this very important legislative hearing. Today, the House Constitution Subcommittee will examine H.R. 748, the ''Child Interstate Abortion Notification Act,'' commonly known as SEE-ANNA (''CIANA''), which was recently introduced by my colleague, the distinguished gentlewoman from Florida, Congresswoman Ileana Ros-Lehtinen. I would like to thank Congresswoman Ros-Lehtinen for her leadership on this issue.
CIANA's predecessor, the Child Custody Protection Act (CCPA) also introduced by Congresswoman Ros-Lehtinen, received broad support, passing the House on three separate occasions, including the 105th, 106th, and 107th Congresses.
This hearing is the first step in ensuring that CIANA not only passes the House in the 109th Congress, but is enacted into law.
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We have an expert panel with us today, and I would like to thank them for taking the time to share their knowledge and expertise with us.
Obtaining an abortion is a life-altering event, as we have heard and seen on numerous occasions. The medical, physical, and emotional impact on women can be long lasting.
CIANA would ensure that young girls who are seeking an abortion receive the care and support they need by enforcing existing state parental notification laws and providing for a federal notification law that protects parental rights when a minor crosses state lines into a state without a notification law.
CIANA would make it a federal offense to cause the circumvention of a valid state parental consent or notification law by knowingly transporting a minor across a state line with the intent that she obtain an abortion. In addition, CIANA builds on the Child Custody Protection Act by also requiring that an abortion provider in a state without a parental involvement law notify a parent, or if necessary a legal guardian, before performing an abortion on a minor girl who is a resident of a different state.
This requirement would be applicable unless the minor has already received authorization from a judge in her home state pursuant to a ''judicial bypass'' procedure, or unless she falls into one of the carefully drafted exceptions to cover cases of abuse or medical emergencies.
Statistics show that approximately 80% of the public favors parental notification laws. Forty-four states have enacted some form of a parental involvement statute. Twenty-three of these states currently enforce statutes that require the consent or notification of at least one parent or court authorization before a young girl can obtain an abortion.
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Such laws reflect widespread agreement that the parents of a pregnant minor are best suited to provide counsel, guidance, and support as she decides whether to continue her pregnancy or to undergo an abortion.
Despite widespread support for parental involvement laws and clear public policy considerations justifying them, substantial evidence exists that such laws are regularly evaded by individuals who transport minors to abortion providers in states that do not have parental notification or consent laws.
Confused and frightened young girls are routinely assisted by adults in obtaining abortions and are encouraged to avoid parental involvement by crossing state lines. Often, these girls are guided by those who do not share the love and affection that most parents have for their children. Personal accounts indicate that sexual predators recognize the advantage they have over their victims and use this influence to encourage abortions in order to eliminate critical evidence of their criminal conduct, and, in turn, allowing the abuse to continue undetected.
Furthermore, when parents are not involved in the abortion decisions of a child, the risks to the child's health significantly increase. Parental involvement will ensure that parents have the opportunity to provide abortion providers with the minor's complete medical history and necessary information prior to the performance of an abortion, information that may have life or death consequences for the minor. Parental involvement in the after care of a minor's abortion procedure is also critical in preventing or curtailing complications such as infection, perforation, or depression, which if left untreated may be fatal.
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Public policy is clear that parents should be involved in decisions that their daughters make regarding abortion. CIANA will assist in enforcing existing parental involvement laws that meet the relevant constitutional criteria and will provide for parental involvement when minors cross state lines to have abortions in states without parental involvement laws. The safety of young girls and the rights of parents demand no less.
Again, I would like to thank our witnesses for being here today.
PREPARED STATEMENT OF REPRESENTATIVE JERROLD NADLER
Thank you, Mr. Chairman.
When we last considered this legislation, I honestly did not believe that the authors could possibly come up with a bill that would be more dangerous, more destructive, of the well being and the rights of young women.
I am humbled to admit that I suffered from a paucity of imagination that clearly does not afflict some on the other side of the aisle. I am truly stunned by this latest crazy quilt of restrictions which can have obviously has but one purpose: to impede the practice of medicine, to ensure that young women will have as few options as possible, and to teach those states, like mine, that do not believe the best way to promote adolescent health, and deal with the very real problems these young women often experience, is with draconian laws that prevent doctors and caring responsible adults from helping these young women who may have nowhere else to turn.
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Often, that adult is a grandparent, or a sibling, or a member of the clergy. In some cases, the young woman may not be able to go to her parents. Indeed, sometimes, the parents may pose a threat to the life and health of the young woman. That's what happened to Spring Adams, a 13 year old from Idaho. She was shot to death by her father after he found out that she planned to terminate a pregnancy—one he caused by his acts of incest.
I know that some of my colleagues might not see a problem forcing a doctor to ring Mr. Adams' doorbell to tell him they are planning to perform an abortion on his daughter. There has been longstanding and vigorous opposition to laws, including the Freedom of Access to Clinic Entrances Act, which aim to protect doctors and their patients from violent fanatics.
This bill also uses a narrow definition of medical emergency that seems to have been lifted from one of Alberto Gonzalez's infamous torture memos. ''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.'' That clearly falls far short of the Supreme Court's requirement that any restriction on the right to choose must have an explicit exception to protect the life or health of the woman. There are many things far short of death that threaten a young woman. She deserves prompt and professional medical care, and the Constitution still protects her right to receive that care.
Congress should not be tempted to play doctor. It is always bad medicine for women.
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We want to encourage families to work together to face difficult situations, and we want to provide young women facing these life altering decisions with all they help we can. In an ideal world, loving, supportive, and understanding families would join together to face these challenges. That's what happens in the majority of cases, law or no law.
But we do not live in a perfect world. Some parents are violent. Some parents are rapists. Some young people can turn only to their clergy, to a grandparent, a sibling, or some other trusted adult. We should not turn these people into criminals simply because they are trying to help a young woman in a dire situation.
This bill is the wrong way to deal with a very real problem.
I want to join the Chairman in welcoming our witnesses, and I look forward to their testimony.
PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA
Thank you, Chairman Chabot, for holding this hearing today, and to our witnesses for sharing their experiences and knowledge with us. The Child Interstate Abortion Notification Act is necessary to uphold state parental consent and notification laws.
A vast majority of Americans support parental involvement and notification laws, which protect parents' roles when their daughters are making such an important life decision as whether to abort their pregnancies. Based on this support, 44 states have passed parental involvement statutes. Twenty-three of those states require that a parent either be notified of or consent to their minor daughter's abortion. Despite all this public effort, these laws are regularly evaded by adults who transport children across state lines to obtain abortions in states without parental involvement laws. In many of these cases, the adult doing the transportation is a man who has sexually assaulted the minor, and the abortion a cover-up for his crime.
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Even the most vocal of abortion supporters recognize the psychological trauma abortion causes women. Coined by President Clinton, abortion advocates everywhere now use the tagline ''safe, legal, and rare.'' Senator Clinton even acknowledges that abortion is a sad and tragic choice. For teenagers, unexpected pregnancy is most often a panic-inducing situation. To make a decision that will so greatly impact the rest of their lives, girls need parental support and advice. States, by and large, have recognized this. They need our help to be able to realize their goal.
Thank you, Mr. Chairman.
PREPARED STATEMENT OF THE HONORABLE ILEANA ROS-LEHTINEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
I would like to begin by commending Chairman Chabot for his outstanding leadership, and especially for holding this important hearing. Mr. Chairman, thank you for considering this vital piece of legislation.
Abortion is perhaps one of the most life-altering and life-threatening of procedures. It leaves lasting medical, emotional, and psychological consequences.
Although Roe v. Wade legalized abortion in 1973, it did not legalize the right for persons other than a parent or a guardian to decide what is best for a child. Nor did it legalize the right for strangers to place our children in a dangerous or potentially fatal situation.
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In our society, there are many rules and regulations aimed at ensuring the safety of our nation's youth through parental guidance. At my alma mater, Southwest High School in Miami, as in many of our schools, a child cannot be given aspirin to relieve a simple headache or cramp, unless the school has been given consent by at least one parent or legal guardian.
Most schools, require permission to take minors on field trips and, in many schools, parents have the ability to decide whether or not to enroll their children in sexual education classes. Every one of these principles emphasize that parents should be involved in decisions that can seriously affect their children. The decision of whether or not to obtain an abortion, a life-altering, potentially fatal and serious medical procedure, should be no exception to these rules.
Designed to ensure children's safety, cosmetic ear piercing requires parental consent for fear that girls may pick up dangerous infections. Who ensures safety for young girls who are ill advised to disobey state laws and are taken to undergo a highly dangerous procedure that may tragically result in death or severe medical complications?
As a mother of two teenage daughters, I realize the profound impact that a positive relationship with one's primary caregiver has on the development of our most important resource, our young people. I believe that I have a right to know what is going on in my daughters' lives, especially with regard to a potentially life threatening medical procedure. We must ensure that our most precious natural resource, our children, are protected and afforded every opportunity to succeed.
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My legislation, the Child Interstate Abortion Notification Act will incorporate all of the provisions previously contained in the Child Custody Protection Act (H.R. 1755 in the 108th Congress), a bill that the House has passed in 1998, 1999, and 2002, making it a Federal offense to transport a minor across state lines to circumvent that state's abortion parental notification laws.
In addition, the bill will require that in a state without a parental notification requirement, abortion providers are required to notify a parent. It will protect minors from exploitation from the abortion industry, promote strong family ties, and will help foster respect for state laws.
This historic legislation will put an end to the abortion clinics and family planning organizations that exploit young, vulnerable girls by luring them to recklessly disobey state laws.
I am proud to have introduced this critical legislation less than one month ago with the bipartisan support of 105 original cosponsors. I am hopeful that it will pass again.
About 80% of the public favors parental notification laws, and over 30 states have enacted such laws. Yet, these laws are often evaded by interstate transportation of minors, often openly encouraged in advertising by abortion providers.
Parental consent or parental notification laws may vary from state to state, but they are all made with the same purpose in mind: to protect frightened and confused adolescent girls from harm.
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I thank you, Mr. Chairman, for considering this vital piece of legislation, and I hope that this subcommittee will support H.R. 748 for the purpose of upholding safety laws designed by individual states; a bill that will protect parents' rights to be involved in decisions involving their minor children, will work to strengthen the bonds of America's families, and most importantly will ensure that America's youth have a safer, healthier, and brighter future.
PREPARED STATEMENT OF JOHN C. HARRISON
The Subcommittee has asked that I give my views concerning Congress' power to enact Section 2 of H.R. 748, the Child Interstate Abortion Notification 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.''
Section 2 of H.R. 748 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. 748 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, this part of H.R. 748 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. 748 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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This statement 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 as they may apply to Section 2 of H.R. 748. That focus is appropriate, I think, because this aspect of the legislation 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. 748 is provided to the Subcommittee 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.
carroll1.eps
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(Footnote 1 return)
This statement is substantially identical to the statements I provided the Subcommittee with respect to H.R. 1755 in the 108th Congress, H.R. 476 in the 107th Congress, and H.R. 1218 in the 106th Congress.
(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.