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Child Custody
This file includes:
A copy of H.R. 1218, which would prohibit adults from taking minors across State
lines in circumvention of laws requiring the involvement of parents in abortion
decisions
Billie Lominick's Congressional Testimony during the House Judiciary Committee/
Constitution Subcommittee's hearing on H.R. 1218
The target List - Child Custody Protection Act - 106th Congress
Final Vote Results for Roll Call 280 - the vote on the Child Custody Act
Letter to Henry Hyde from the American Academy of Pediatrics that voices the
organization's opposition to the Child Custody Protection Act
Editorials in opposition to the Child Protection Act
Memo to the Judiciary Committee from a Harvard University Law School professor
that argues that the Child Custody Act is inconsistent with the constitutional
principles of federalism
NARAL publications that address the myths and facts about the Child Custody
Protection Act, discuss how the H.R. 1218 threatens young women's health, and
discuss the inadequacy of judicial bypass procedures in the act
Clinton Administration policy statement on the Child Custody Protection Act
Justice Department's report on the Child Custody Protection Act
106TH CONGRESS
1ST SESSION
H. R. 1218
AN ACT
To amend title 18, United States Code, to prohibit
taking minors across State lines in circumvention
of laws requiring the involvement of parents in
abortion decisions.
106TH CONGRESS
1ST SESSION
H.R. 1218
AN ACT
To amend title 18, United States Code, to prohibit taking
minors across State lines in circumvention of laws requir-
ing the involvement of parents in abortion decisions.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
2
1 SECTION 1. SHORT TITLE.
2
This Act may be cited as the "Child Custody Protec-
3 tion Act".
4 SEC. 2. TRANSPORTATION OF MINORS IN CIRCUMVENTION
5
OF CERTAIN LAWS RELATING TO ABORTION.
6
(a) IN GENERAL.-Title 18, United States Code, is
7 amended by inserting after chapter 117 the following:
8 "CHAPTER 117A-TRANSPORTATION OF
9
MINORS IN CIRCUMVENTION OF CER-
10
TAIN LAWS RELATING TO ABORTION
"Sec.
"2431. Transportation of minors in circumvention of certain laws relating to
abortion.
11 "§ 2431. Transportation of minors in circumvention of
12
certain laws relating to abortion
13
"(a) OFFENSE.-
14
"(1) GENERALLY.-Except as provided in sub-
15
section (b), whoever knowingly transports an indi-
16
vidual who has not attained the age of 18 years
17
across a State line, with the intent that such indi-
18
vidual obtain an abortion, and thereby in fact
19
abridges the right of a parent under a law requiring
20
parental involvement in a minor's abortion decision,
21
in force in the State where the individual resides,
22
shall be fined under this title or imprisoned not
23
more than one year, or both.
.HR 1218 EH
3
1
"(2) DEFINITION.-For the purposes of this
2
subsection, an abridgement of the right of a parent
3
occurs if an abortion is performed on the individual,
4
in a State other than the State where the individual
5
resides, without the parental consent or notification,
6
or the judicial authorization, that would have been
7
required by that law had the abortion been per-
8
formed in the State where the individual resides.
9
"(b) EXCEPTIONS.-(1) The prohibition of subsection
10 (a) does not apply if the abortion was necessary to save
11 the life of the minor because her life was endangered by
12 a physical disorder, physical injury, or physical illness, in-
13 cluding a life endangering physical condition caused by or
14 arising from the pregnancy itself.
15
"(2) An individual transported in violation of this sec-
16 tion, and any parent of that individual, may not be pros-
17 ecuted or sued for a violation of this section, a conspiracy
18 to violate this section, or an offense under section 2 or
19 3 based on a violation of this section.
20
"(c) AFFIRMATIVE DEFENSE.-It is an affirmative
21 defense to a prosecution for an offense, or to a civil action,
22 based on a violation of this section that the defendant rea-
23 sonably believed, based on information the defendant ob-
24 tained directly from a parent of the individual or other
25 compelling facts, that before the individual obtained the
HR 1218 EH
4
1 abortion, the parental consent or notification, or judicial
2 authorization took place that would have been required by
3 the law requiring parental involvement in a minor's abor-
4 tion decision, had the abortion been performed in the
5 State where the individual resides.
6
"(d) CIVIL ACTION.-Any parent who suffers legal
7 harm from a violation of subsection (a) may obtain appro-
8 priate relief in a civil action.
9
"(e) DEFINITIONS.-For the purposes of this
10 section-
11
"(1) a law requiring parental involvement in a
12
minor's abortion decision is a law-
13
"(A) requiring, before an abortion is per-
14
formed on a minor, either-
15
"(i) the notification to, or consent of,
16
a parent of that minor; or
17
"(ii) proceedings in a State court; and
18
"(B) that does not provide as an alter-
19
native to the requirements described in sub-
20
paragraph (A) notification to or consent of any
21
person or entity who is not described in that
22
subparagraph;
23
"(2) the term 'parent' means—
24
"(A) a parent or guardian;
25
"(B) a legal custodian; or
HR 1218 EH
5
1
"(C) a person standing in loco parentis
2
who has care and control of the minor, and
3
with whom the minor regularly resides,
4
who is designated by the law requiring parental in-
5
volvement in the minor's abortion decision as a per-
6
son to whom notification, or from whom consent, is
7
required;
8
"(3) the term 'minor' means an individual who
9
is not older than the maximum age requiring paren-
10
tal notification or consent, or proceedings in a State
11
court, under the law requiring parental involvement
12
in a minor's abortion decision; and
13
"(4) the term 'State' includes the District of
14
Columbia and any commonwealth, possession, or
15
other territory of the United States.'
16
(b) CLERICAL AMENDMENT.-The table of chapters
17 for part I of title 18, United States Code, is amended by
18 inserting after the item relating to chapter 117 the fol-
19 lowing new item:
"117A. Transportation of minors in circumvention of certain laws
relating to abortion
2431".
Passed the House of Representatives June 30, 1999.
Attest:
Clerk.
HR 1218 EH
MAY-26-1999 17:34
NAF
202 667 5890 P.01/07
IAi
NATIONAL
ABORTION
FEDERATION
TO:
Jenny Luray,
White House Office of Women's Initiatives and Outreach
FAX NUMBER: 202-456-7311
FROM: Maureen M. Britell, Director of Government Relations
DATE: 5/26/99
NUMBER OF PAGES INCLUDING COVER: 7
Enclosed please find a preliminary copy of Grandma Billie's testimony and
NAF's letter to legislators.
Please feel free to contact me on my cell phone with any questions-202-
256-2224.
National Abortion Federation
1755 Massachusetts Avenue, NW, Suite 600 Washington, DC 20036
PHONE: 202/667.5881 FAX: 202/667.5890
This fax contains confidential information. If you receive this transmission by mistake please call (202) 667-5881.
MAY-26-1999 17:35
NAF
202 667 5890 P.02/07
BILLIE LOMINICK
HOUSE JUDICIARY COMMITTEE
CONSTITUTION SUBCOMMITTEE HEARING ON HR 1218
MAY 27, 1999
MAY-26-1999 17:35
NAF
202 667 5890
P.03/07
Good morning, my name is Billie Lominick and I live in Newbury, South
Carolina. In 1990, after 33 years of marriage, I lost my husband Bennie to
leukemia. Together, Bennie and I were blessed to see our child grow into a
devoted wife and loving mother to our only grandson, "Tom."
My husband loved Tom with all his heart, as I do. He's our only grandson,
and is such a good boy. Tom was Bennie's whole life, and I know he would
have been so proud to watch him develop into the gentleman he has become.
About a year ago, Tom started dating his high school sweetheart, "Mary."
Tom's parents and I immediately fell in love with Mary. She is a sweet girl,
and it has broken our hearts to hear about all that she and her younger
brother have been through. With a great deal of courage, they have managed
to survive living with an abusive mother and stepfather.
On Christmas Day of 1996, social services removed both children from their
home for one year as a result of their parents' physical and emotional abuse,
which included sexual abuse. The children were sent to an orphanage in a
town an hour away. The orphanage had regularly scheduled visitation days
for the parents. I'll never forget Mary telling us that her parents only came
to visit her a handful of times. I still don't understand how parents could
treat their children that way.
After Mary's parents had attended a few "parenting classes" and Alcoholics
Anonymous meetings, Mary and her brother were returned to their home.
While the sexual abuse did stop, both parents continued to use drugs and
alcohol, frequently running into trouble with the law.
When Tom and Mary started dating, we didn't hesitate to welcome her into
our family. She was facing SO much at home, and did not have any other
relatives in town. Tom's parents and I gladly became a support system for
her.
Mary and Tom discovered this past January that Mary was pregnant. Mary
wasn't feeling well, so she and Tom and her mother had gone together to the
doctor for a check-up. The doctor told them that Mary was pregnant.
Within a few days, Tom's mother and I also knew. Together, we all went
with Mary when she had her ultrasound.
MAY-26-1999 17:35
NAF
202 667 5890
P.04/07
After taking a few days to think things over, Tom and Mary decided that
they just weren't ready to become parents. They both wanted to finish
school, and felt that they didn't yet have the resources to raise a child.
When Tom and Mary told us about their decision to have an abortion, we
supported their choice. His parents and I felt that this was their decision to
make. We also thought they were too young to bring a child into the world.
Mary's parents, however, had a very different reaction to the news. Mary's
stepfather hit her in the face, and both parents violently opposed the
abortion. Scared to death by this latest abuse, Mary decided to move out of
her parents' house. I knew that I could provide a stable, loving home for
her, so I asked her to move in with me.
Three days after Mary began living with me, her stepfather came looking for
her. He literally tried to beat the door down to get to Mary. We called the
police, and that same day a warrant was issued for his arrest.
Tom and his mother began contacting clinics in South Carolina, who stated
that Mary needed her parent's consent in order to have an abortion. We
knew that her parents would not give their permission, so we began calling
clinics in North Carolina. It was a clinic staff member in North Carolina
who told us that there was an alternative to parental consent. She said that
Mary could go before a judge and explain the situation, and that he could
grant her request for an abortion.
We made more phone calls, and were only able to find two courts in our
whole state that would take judicial bypass cases. The closest judge who
would hear a petition was over an hour from our home. Mary was
determined to get the bypass, so we prepared for the hearing. Our hopes
were dashed, however, when we learned that the judge had announced only
a month earlier that the court would only take cases from minors residing
within that county.
Since we had nowhere else to turn in South Carolina, we called more clinics
in North Carolina and also called clinics in Georgia. Finally, we were able
to locate a clinic in Georgia that could help Mary. While Georgia does have
a parental notification requirement, we were able to find a judge who was
willing to hear judicial bypass cases. We worked with the clinic to arrange
the bypass hearing, and finally were able to schedule Mary's appointment.
MAY-26-1999 17:35
NAF
202 667 5890
P.05/07
After days of feeling as though we had no options, and that judges and
lawyers just didn't care about teenagers like Mary, we prepared for the
three-hour drive to Georgia. Tom wanted to take Mary, but I didn't like the
thought of the two of them traveling all that way alone. I decided to take
time off from work and go with them. We made the trip together.
Mary went before a judge in Atlanta, and was given permission for her
abortion. However, she did not meet the requirements of South Carolina's
parental consent law before we went to Georgia. Under the law you are
considering, I would have been sent to jail for helping Mary go to Georgia
for her abortion. I would have been punished for helping her when she had
nowhere else to turn. I would have been punished for seeing to it that my
grandson and Mary got to Atlanta and home again safely.
Mary is still living with me. She had no complications from the abortion,
and feels better now than she has ever felt in her whole life. She has just
finished her sophomore year of high school, and is looking forward to
finishing school in two years and getting a job. I think about this law, and
wonder if I was sent to jail for taking Mary to Georgia, who would be taking
care of her now? It's frightening to me to realize that abusive parents could
have more of a say in their child's life than a grandmother like me who loves
her very much. I shouldn't be behind bars - her abusive parents should.
I hope that you will see how wrong this law is, and how much it would hurt
families like ours. I hope that you will not make our lives any more difficult
than they already are. Please, think of the other girls like Mary who are out
there and vote against this bill not for me, but for them.
Thank you.
MAY-26-1999 17:36
NAF
202 667 5890 P.06/07
NATIONAL
AEORTION
May 26, 1999
FEDERATION
Dear Representative:
RE: 1218- "Child Custody Protection Act" or "Teen Endangerment Act"
On Thursday, May 27, 1999, anti-choice legislators will ask you to vote once again in the
Constitution Subcommittee to restrict women's access to abortion services. This time, the
proposed legislation takes aim at our younger women with the "Teen Endangerment Act." On
behalf of the National Abortion Federation, and the women we serve, I urge you to reject this
legislation and vote against this bill.
The National Abortion Federation agrees that parents should be involved in their
teenager's decision to have an abortion - and in the majority of cases they are.
According to an Alan Guttmacher Institute study of states without parental involvement
laws, 61% of parents knew about their teen's decision to have an abortion. Of those teens
whose parents did not know about their abortion, almost one-third were at risk of
physical harm. This bill takes away safe alternatives to parental involvement, such as
turning to other relatives or close family friends, and replaces them with life-endangering
ones, like hitchhiking, self-inducing, or seeking out back alley abortions.
Under the Teen Endangerment Act, grandmothers like Billie Lominick could be federally
prosecuted for helping family members with an unplanned and unwanted pregnancy. This
past January, high school sweethearts "Mary" and "Tom" learned that "Mary" had
become pregnant. "Mary" and "Tom," both still in school, felt that they were not ready to
become parents. When "Mary's" mother and stepfather learned of the pregnancy, they
refused to grant her permission to have an abortion and became violent. Due to her
family's history of sexual and physical abuse, "Mary" fled in fear to Grandma Billie's
home.
After placing many phone calls across the state, "Mary" could only find two courts that
would hear judicial bypass cases. The closest judge who would hear a petition case was
over an hour from her home. Determined to obtain a judicial bypass, "Mary" spoke with
an attorney in preparation for the hearing. "Mary's" hopes were soon dashed when she
learned that the judge had announced a month earlier that the court would only hear cases
from minors residing within that county. "Mary" did not live in the judge's county, so she
was unable to obtain a court order granting her permission to obtain an abortion without
her parent's consent.
Executive Director. Vidd A. Saporia President: Sutonne 1. Pappema M.D. Pod President: Joan Coombs
Board Member: Belsy Aubtor, R.N.P. Vick Breatbart Marlynn Buckham Julio Burion Mario Conto Jerry Edwards M.D. Bruco Forguson MD. Luchdo Rnley. Esq.
Dian Horrison Carole Joffa Ph.D. Moureen Paul M.D. Gary T. Prohocks, M.D. erl Roamussen Mono Rels Bemord Smith M.D. Cynthia Walers Spoulding Shauna Sponcer
1755 Massachusetts Ave., NW Suite 600 Washington. DC 20036 Telephone: 202.667.5881 Fax: 202.667 5890
MAY-26-1999 17:36
NAF
202 667 5890 P.07/07
Since "Mary" was unable to obtain a judicial bypass in South Carolina, she began
inquiring about other states. The closest clinic was over three hours away in Georgia.
Grandma Billie, fearful of "Mary" and "Tom" traveling the long distance alone, offered
to accompany them. "Mary" was able to obtain a judicial bypass from a judge in Georgia
before obtaining her abortion. While "Mary" did meet Georgia's parental involvement
law, she did not meet the requirements of South Carolina's law before traveling to
Georgia. Under the Teen Endangerment Act, Grandma Billie would go to jail for helping
"Mary" when she needed her most.
"Mary" is currently living with Grandma Billie, and has just completed her sophomore
year in high school. Along with school, both "Mary" and "Tom" have part-time jobs.
On behalf of teenagers at risk, the National Abortion Federation urges you to reject this
legislation. Please help prevent desperate teens from the isolation and danger that this bill
would create. Please ensure that Grandma Billie and other family members are not
prosecuted for helping their loved ones.
Sincerely,
Vicki Saporta
Executive Director
TOTAL P.07
JUN-25-1999 FRI 09:43 AM 3200
FAX NO. 915032818368
P. 02
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TARGET LIST - CHILD CUSTODY PROTECTION ACT
HOUSE OF REPRESENTATIVES - 106TH CONGRESS
PRO (138)
LEANS PRO (19) UNDECIDED (7) LEANS ANTI (22) ANTI (249)
AL
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Mascara (D)
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RI
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SC
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SD
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TN
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Tanner (D)
Wamp (R)
6
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TX
Bentsen (D)
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Archer (R)
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Edwards (D)
Barton (R)
Frost (D)
Bonilla (R)
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Jackson Lee (D)
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Johnson (D)
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Sandlin (D)
Sessions (R)
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Stenholin (D)
Thornberry (R)
Turner (D)
UT
Hansen (R)
Cannon (R)
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VT
Sanders (I)
VA
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Moran (D)
Bliley (R)
Pickett (D)
Davis (R)
Scott (D)
Goode (D)
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Goodlatte (R)
Wolf (R)
WA
Dicks (D)
Baird (D)
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McDermott (D)
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WV
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WI
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WY
Cubin (R)
NARAL-6/17/99
7
JUN-25-1999 FRI 09:44 AM 3200
FAX NO. 915032818368
P. 09
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SENATE COMPOSITION ON CHOICE- 106th Congress
PRO (32)
MIXED (17)
ANTI (51)
Лкака (D-HI)
Bayh (D-IN)
Abraham (R-MI)
Baucus (D-MT)
Biden (D-DE)
Allard (R-CO)
Bingaman (D-NM)
Bryan (D-NV)
Ashcroft (R-MO)
Boxer (I)-CA)
Byrd (D-WV)
Bennett (R-UT)
Chafee (R-RI)
Cluland (D-GA)
Bond (R-MO)
Collins (R-ME)
Conrad (D-ND)
Breaux (I)-LA)
Dodd (D-CT)
Daschle (D-SD)
Brownback (R-KS)
Durbin (D-IL)
Dorgan (D-ND)
Bunning (R-KY)
Edwards (D-NC)
Graham (D-FL)
Burns (R-MT)
Fuingold (D-WI)
Hollings (D-SC)
Campbell (R-CO)
Feinstein (D-CA)
Johnson (D-SD)
Cochran (R-MS)
Harkin (D-IA)
Landricu (D-I.A)
Coverdell (R-GA)
Inouye (D-HI)
Leahy (D-VT)
Craig (R-ID)
Jeffords (R-VT)
Lincoln (D-AR)
Crapo (R-ID)
Kennedy (D-MA)
Moynthan (D-NY)
DeWine (R-OH)
Kerrey (D-NE)
Specter (R-PA)
Domenici (R-NM)
Kerry (D-MA)
Stevens (R-AK)
Enzi (R-WY)
Kohl (D-WI)
Fitzgerald (R-IL)
Lautenberg (D-NJ)
Frist (R-TN)
Lieberman (D.CT)
Gorton (R-WA)
Levin (D-MI)
Gramm (R-TX)
Mikulski (D-MD)
Grams (R-MN)
Murray (D-WA)
Grassley (R-IA)
Reed (D-RI)
Gregg (R-NH)
Robb (D-VA)
Hagel (R-NE)
Rockefeller (D-WV)
Hatch (R-UT)
Sarbanes (D-MD)
Helms (R-NC)
Schumer (D-NY)
Hutchinson (R-AR)
Snowe (R-MH)
Hutchison (R-TX)
Torricelli (D-NJ)
Inhoffe (R-OK)
Wellstone (D-MN)
Kyl (R-AZ)
Wyden (D-OR)
Lott (R-MS)
Lugar (R-IN)
Mack (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nickles (R-OK)
Reid (D-NV)
Roberts (R-KS)
Roth (R-DE)
Santorum (R-PA)
Sessions (R-AL)
Shelby (R-AL)
Smith (R-NH)
Smith (R-OR)
Thomas (R-WY)
Thompson (R-TN)
Thurmond (R-SC)
Voinovich (R-OII)
Warner (R-VA)
NARAL -11/5/98
7
Final Vote Results for Roll Call 280
http://143.231.123.93/cgi-bin/vote.exe?ycar=1998&rollnumbes
FINAL VOTE RESULTS FOR ROLL CALL 280
(Republicans in roman; Democrats in italic; Independents underlined)
H R 3682 RECORDED VOTE 15-JUL-1998 4:36 PM
QUESTION: On Passage
BILL TITLE: Child Custody Protection Act
AYES
NOES
PRES
NV
REPUBLICAN
209
14
4
DEMOCRATIC
67
135
4
INDEPENDENT
1
TOTALS
276
150
8
AYES 276 ---
Aderholt
Goodling
Oxley
Archer
Gordon
Packard
Armey
Goss
Pappas
Bachus
Graham
Parker
Baesler
Granger
Pascrell
Baker
Gutknecht
Paxon
Ballenger
Hall (OH)
Pease
Barcia
Hall (TX)
Peterson (MN)
Barr
Hamilton
Peterson (PA)
Barrett (NE)
Hansen
Pickering
Bartlett
Hastert
Pitts
Barton
Hastings (WA)
Pombo
Bateman
Hayworth
Pomeroy
Bereuter
Hefley
Portman
Berry
Herger
Poshard
Bilbray
Hilleary
Pryce (OH)
Bilirakis
Hilliard
Quinn
Bishop
Hobson
Radanovich
Bliley
Hoekstra
Rahall
Blunt
Holden
Ramstad
Boehner
Hostettler
Redmond
Bonilla
Hulshof
Regula
Bonior
Hunter
Reyes
Bono
Hutchinson
Riggs
7
Final Vote Results for Roll Call 280
http://143.231.123.93/cgi-bin/vote.exe?year=19988rollnunberz
Borski
Hyde
Riley
Boswell
Inglis
Roemer
Boyd
Istook
Rogan
Brady (TX)
Jefferson
Rogers
Bryant
Jenkins
Rohrabacher
Bunning
John
Ros-Lehtinen
Burr
Johnson (WI)
Roukema
Burton
Johnson, Sam
Royce
Buyer
Jones
Ryun
Callahan
Kanjorski
Salmon
Calvert
Kaptur
Sandlin
Camp
Kasich
Sanford
Canady
Kelly
Saxton
Cannon
Kildee
Scarborough
Chabot
Kim
Schaefer, Dan
Chambliss
King (NY)
Schaffer, Bob
Chenoweth
Kingston
Sensenbrenner
Christensen
Kleczka
Sessions
Clement
Klink
Shadegg
Coble
Knollenberg
Shaw
Coburn
Kolbe
Shimkus
Collins
Kucinich
Shuster
Combest
LaFalce
Skeen
Condit
LaHood
Skelton
Cook
Largent
Smith (MI)
Cooksey
Latham
Smith (NJ)
Costello
LaTourette
Smith (OR)
Cox
Lazio
Smith (TX)
Cramer
Leach
Smith, Linda
Crane
Lewis (CA)
Snowbarger
Crapo
Lewis (KY)
Snyder
Cubin
Linder
Solomon
Cunningham
Lipinski
Souder
Danner
Livingston
Spence
Davis (FL)
LoBiondo
Spratt
Davis (VA)
Lucas
Stearns
Deal
Manton
Stenholm
DeLay
Manzullo
Strickland
Final Vote Results for Roll Call 280
http://143.231.123.93/cgi-bin/vote.exe?year=1998&rollnumbers
Diaz-Balart
Mascara
Stump
Dickey
McCarthy (NY)
Stupak
Doolittle
McCollum
Sununu
Doyle
McCrery
Talent
Dreier
McDade
Tanner
Duncan
McHale
Taylor (MS)
Dunn
McHugh
Taylor (NC)
Ehlers
McInnis
Thomas
Ehrlich
McIntosh
Thornberry
Emerson
McIntyre
Thune
English
McKeon
Tiahrt
Ensign
Metcalf
Traficant
Etheridge
Mica
Turner
Everett
Miller (FL)
Upton
Ewing
Minge
Vento
Fawell
Moakley
Walsh
Foley
Mollohan
Wamp
Forbes
Moran (KS)
Watkins
Fossella
Murtha
Watts (OK)
Fowler
Myrick
Weldon (FL)
Fox
Neal
Weldon (PA)
Franks (NJ)
Nethercutt
Weller
Frelinghuysen
Neumann
Weygand
Gallegly
Ney
White
Ganske
Northup
Whitfield
Gekas
Norwood
Wicker
Gibbons
Nussle
Wilson
Gillmor
Oberstar
Wolf
Goode
Obey
Young (AK)
Goodlatte
Ortiz
Young (FL)
--- NOES 150 ---
Abercrombie
Furse
Mink
Ackerman
Gejdenson
Moran (VA)
Allen
Gephardt
Morella
Andrews
Gilchrest
Nadler
Baldacci
Gilman
Olver
9
Final Vote Results for Roll Call 280
http://143.231.123.93/cgi-bin/vote.exe?year=1998&rollnumber:
Barrett (WI)
Green
Owens
Bass
Greenwood
Pallone
Becerra
Gutierrez
Pastor
Bentsen
Harman
Paul
Berman
Hastings (FL)
Payne
Blagojevich
Hefner
Pelosi
Blumenauer
Hinchey
Pickett
Boehlert
Hinojosa
Price (NC)
Boucher
Hooley
Rangel
Brady (PA)
Horn
Rivers
Brown (CA)
Houghton
Rodriguez
Brown (FL)
Hoyer
Rothman
Brown (OH)
Jackson (IL)
Rush
Campbell
Jackson-Lee (TX)
Sabo
Capps
Johnson (CT)
Sanchez
Cardin
Johnson, E.B.
Sanders
Carson
Kennedy (MA)
Sawyer
Castle
Kennedy (RI)
Schumer
Clay
Kennelly
Scott
Clayton
Kilpatrick
Serrano
Clyburn
Kind (WI)
Shays
Conyers
Klug
Sherman
Coyne
Lampson
Sisisky
Cummings
Lantos
Skaggs
Davis (IL)
Lee
Slaughter
DeFazio
Levin
Smith, Adam
DeGette
Lewis (GA)
Stabenow
Delahunt
Lofgren
Stark
DeLauro
Lowey
Stokes
Deutsch
Luther
Tauscher
Dicks
Maloney (CT)
Thompson
Dixon
Maloney (NY)
Thurman
Doggett
Markey
Tierney
Dooley
Martinez
Torres
Edwards
Matsui
Towns
Engel
McCarthy (MO)
Velazquez
Eshoo
McDermott
Visclosky
Evans
McGovern
Waters
Final Vote Results for Roll Call 280
http://143.231.123.93/cgi-bin/vote.exe?year=1998&rolInumbers
Farr
McKinney
Watt (NC)
Fattah
Meehan
Waxman
Fazio
Meek (FL)
Wexler
Filner
Meeks (NY)
Wise
Ford
Menendez
Woolsey
Frank (MA)
Millender-McDonald
Wynn
Frost
Miller (CA)
Yates
--- NOT VOTING 8 ---
Dingell
McNulty
Roybal-Allard
Gonzalez
Petri
Tauzin
Hill
Porter
JUN-21-99 MON 03:10 PM
P.02
American Academy
SAM
of Pediatrics
THE society FOR APOLISCENT AMDICING
June 14, 1999
The Honorable Henry J. Hyde
U.S. House of Representatives
2110 Rayburn House Office Building
Washington, DC 20515
Dear Congressman Hyde:
On behalf of the American Academy of Pediatrics (AAP). representing 55,000 pediatricians
nationally, und the Society for Adolescent Medicine (SAM), representing 1,400 adolescent
health professionals, we are writing in opposition of H.R. 1218. the Child Custody Protection
Act. Assuring adolescent access to health care, including reproductive health care, has been a
long-standing objective of the Academy. The problematic nature of this bill is in it's potential to
restrict a patient's access to care by making it a federal offense to transport a minor across state
lines if this circumvents the state's parental involvement laws.
The AAP and SAM firmly believe that parents should be involved in and responsible for
assuring medical care for their children. While parental involvement is desirable and should be
encouraged, it may not always be feasible, and the Academy and SAM believe it should not be
legislated. Adolescents who cannot rely on a parent to help them through the trauma of a
pregnancy and who may need to go to an adjoining state for termination are precluded from
receiving supportive care during a traumatic time in their lives. It is in these situations that
adolescents would be limited in their options for receiving care.
Our ultimate goal is to provide access to health care that is in the best interest of the adolescent.
Pediatricians hope and strongly encourage adolescents to communicate with and involve their
parents or other trusted adults in important health care decisions affecting their li ves, including
those regarding pregnancy or pregnancy termination. Studies show that a majority of
adolescents voluntarily do SO. However, studies also indicate that legislation mandating parental
involvement does not achieve the intended benefit of promoting family communication. It may
increase the risk of harm to the adolescent by delaying access to appropriate medical care.
The American Academy of Pediatrics and the Society for Adolescent Medicine urge you to
oppose the Child Custody Protection Act.
Sincerely,
alput
Lawrence S. Neishin, MD
Joel J. Alpert, MD, FAAP
Lawrence S. Neistein. MD
President
President
American Academy of Pediatrics
Society for Adolescent Medicine
JJA:ch
JUN-21-99 MON 03:10 PM
P.03
New York Times - 5/29/98
A Dangerous Abortion Curb
Republican leaders in Congress, eager to pla-
another state, and desperate young women who are
cate supporters from the Christian right, are pro-
afraid to inform a parent - perhaps because they
moting cruel and constitutionally suspect legisla-
fear a violent reaction - will continue to cross state
tion that would jeopardize the lives of frightened
lines to obtain one. There is nothing "friendly"
young women seeking abortions. The G.O.P. calls
about isolating these youngsters from the trusted
this new measure, which plays cleverly on the issue
adults in their lives. That will only increase the
of parental consent, the Child Custody Protection
chance that they will resort to illegal or self-induced
ACL It should be called the Teen Endangerment Act
abortions or delay the procedure, making it mor.
Twenty-two states have laws requiring teen-
dangerous.
agers to notify or consult their parents before
No one would dispute that young women should
getting an abortion or else seek a judge's permis-
be encouraged to talk to their parents about their
sion The new legislation would effectively extend
difficult decisions on abortion. More than 75 percent
the reach of these laws into other states. Under the
of minors under 16 do consult one or both parents.
measure, anyone who accompanies a minor across
But It is also true, as Senator Dianne Feinstein, a
state lines for an abortion - including grandpar-
California Democrat, observed at a recent hearing.
ents, religious advisers and, in certain instances,
that no law can foster communication between a
even a single parent - would be at risk of Federal
parent and a child where none exists..
criminal prosecution and possible Imprisonment if
Unfortunately, the legislation seems to be on a
that minor falled to meet the requirements for
fast track to passage in both houses. President
parental consent in her home state.
Clinton, who last year blocked Congress's effort to
For Republican leaders to call this approach
Impose an unconstitutional ban on sc-called partial
"family friendly" ignores the real-world conse-
birth abortions, must again stand ready to wield his
quences. Sometimes the closest abortion clinic Is in
veto pen.
JUN-21-99 MON 03:11 PM
P. 04
Washington Post 7/20/98
The Abortion Legislation
T
HE CHILD Custody Protection Act
anteed and it is legal in many states to
does not seem, on its face, to be a
accompany a minor to an abortion clinic
particularly extreme piece of antiabor-
without telling her parents. It is, therefore,
tion legislation. Presented by its proponents as
hard to fathom how it could be a crime to cross
an effort to protect the right of parents to be
state lines in helping a minor obtain an
involved in the abortion decisions of their
abortion. Proponents cite an appeals court
underage daughters, the bill would make it a
decision from 1978 in support of their notion
federal crime to transport across state lines a
minor in an attempt to evade the parental
that the government can restrict interstate
notification or consent requirements of her
travel undertaken for purposes that are legal in
home state. The House passed the bill
the destination states. How relevant that
Wednesday, and the Senate Judiciary Commit-
precedent proves to be remains to be seen.
tee reported it favorably on Thursday.
Even if it is within Congress's power to
The bill, however, is considerably dicier
adopt this law, it is a bad idea. Indeed, using
than it initially appears. Abortion foes know
the federal government to give force to the
that they could not pass a national law
laws of favored states within the borders of
requiring parental notification or consent. And
other states that choose not to have similar
this backdoor effort to approximate that goal
statutes is a dangerous game. Should the
has serious problems that should trouble even
federal government be able to criminalize
those who don't oppose state laws requiring
crossing state lines (or transporting someone
parental involvement in minors' abortions.
across them) in order to gamble, buy ciga-
The central problem with the proposal is
that it causes restrictive state laws to follow
rettes at lower tax rates or purchase guns?
residents in their travels outside of their home
One of the central ideas of this country's
state and then has the federal government
structure is that the states will try different
prosecuting people for activity that is lawful in
approaches to problems and people will vote
the locations in which it takes place. The right
with their feet in deciding which laws they
to travel between states is constitutionally
like. That purpose is eviscerated if Congress
protected, abortion rights similarly are guar-
criminalizes the transportation.
JUN-21-99 MON 03:11 PM
P.05
City/Local
Sports
Opinion
National
Jersey
Business
Can parental rights ever be wrong?
Opinion
Why would a person take someone else's child out of state for an abortion?
Features
Obituaries
Here are three real-life cases from one week at a local abortion clinic.
The Unquirer
A foreign exchange student came to the clinic with her sponsor family,
but in Pennsylvania, only the legal guardian can accompany the teen-ager
and listen to a state-mandated speech about abortion alternatives, a
requirement for parental consent
A twentyish woman accompanied her 15-year-old pregnant sister. Each
exhibited visible bruises.
A teen-age girl had her mother's consent for an abortion, but the mother
Editorial
cartoon
was in a hospital seriously ill.
collection
Under legislation proposed in Congress, adults who helped these young
women go out of state to avoid parental-consent laws could be charged with
a crime, and if convicted, fined or jailed for a year.
hiladelphia
No doubt some supporters of the legislation were disturbed by a 1995 case
quirer-5/20/98
in upstate Pennsylvania when a woman took a 13-year-old to Binghamton,
N.Y., the closest clinic for an abortion. The girl's boyfriend was the woman's
19-year-old stepson, who later pled guilty to statutory rape:
Yet such a law - like current parental consent/notification requirements in
39 states - would have unintended consequer chardizing the safety of
teens it is supposed to protect
Perhaps lawmakers believe that if the law is passed, a pregnant teen-ager
will (a) tell her parents, who will understand, (b) go through the several
steps - and a possible weeklong delay -- to get a judicial bypass, or (c)
change her mind, have the baby and live happily ever after.
What is more likely to happen is that the young woman will (a) go out of
state to have the abortion, but alone, (b) go into denial until the second
trimester when she'll finally tell her parents and get the abortion, or (c) get
an illegal abortion, risking infection and/or death.
It's a tricky business to fiddle with parental rights, except in extraordinary
circumstances, but teen-age pregnancy is just such a circumstance. And even
though judicial bypass is an expedited process in Philadelphia (in other
Pennsylvania counties, it may not be), many teens find it too overwhelming.
Besides, the law ignores the fact that lots of leen-agers live in families
where aunts or grandmothers or even neighbors are de facto guardians,
though not legally.
It's hard to believe Congress truly is interested in the well-being of young
people, given its history of neglect. But if Congress truly wants 10 protect
pregnant leen-agers. this isn't the way.
.-25-1999 FRI 09:45 AM 3200
FAX NO. 915032818368
P. 10
HARVARD UNIVERSITY
LAW SCHOOL
LAURENCE H. TRIBE
HAUSER HALL 120
Ralph S. Tyler, Jr. Professor
CAMBRIDGE, MASSACHUSETTS C2138
of Constitutional Law
(617) 495-4621
June 17, 1999
To:
Committee on the Judiciary, U.S. House of Representatives
From: Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard University
Peter J. Rubin, Visiting Associate Professor of Law, Georgetown University
Rc:
H.R. 1218 and Constitutional Principles of Federalism
Introduction
We have been asked to submit our assessment of whether H.R. 1218, now pending before
the Committee on the Judiciary, is consistent with constitutional principles of Tederalism. It is our
considered view that the proposed statute violates those principles, principles that are fundamental
to our constitutional order. That statute violates the rights of states to enact and enforce their own
laws governing conduct within their territorial boundaries, and the rights of the residents of cach of
the United States and of the District of Columbia to travel to and from any state of the Union for
lawful purposes. a right strongly reaffirmed by the Supreme Court in its recent landmark decision
in Suenz V. Roe, 119 S.CL. 1518 (May 17, 1999). We have therefore concluded that the proposed
law would. if enacted, violate the Constitution of the United States.
H.R. 1218 provides criminal and civil penalties, including imprisonment for up to one year,
for any person who
knowingly transports an individual who has not attained the age of 18 years across a State
line, with the intent that such individual obtain an abortion. [if] an abortion is performed
on the individual, in a State other than the State where the individual resides, without the
parental consent or notification, or the judicial authorization, that would have been required
by that law in the State where the individual resides.
H.R. 1218, §2 (proposed 18 U.S.C. $2431(a) and (b)). In other words, this law makes it a Jederal
crime to assist a pregnant minor 10 obtain a lawful abortion. The criminal penalties kick in if the
abortion the young woman seeks would be performed in a state other than her state of residence, and
in accord with the less restrictive laws of that state, unless she complies with the more severe
1
JUN-25-1999 FRI 09:45 AM 3200
FAX NO. 915032818368
P.
11
restrictions her home state imposes upon abortions performed upon minors within its territorial
limits. The law contains no exceptions for situations where the young woman's home state purports
to disclaim any such extraterritorial effect for its parental consultation rules, or where it is a prognant
young woman's close friend, or her aunt or grandmother, or a inember of the clergy, who
accompanies her "across a State line" on this frightening journey, even where she would have
obtained the abortion anyway, whether lawfully in another state after a inore perilous trip alone, or
illegally (and less safely) in her home state because she is too frightened to seek a judicial bypass or
too terrified of physical abuse to notify a parent or legal guardian who may, indeed. be the cause of
her pregnancy.
This amounts to a statutory attempt to force this most vulnerable class or 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, and
therefore violates the Constitution of the United States.
Analysis
The essence of federalism is that the several states have not only different physical territories
and different topographics but also different political and legal regimes. Crossing the border into
another state, which every citizen has a right to do, may perhaps not permit the traveler to escape all
tax or other fiscal or recordkccping duties owed to the state as a condition of remaining a resident
and thus a citizen of that state, but necessarily permits the traveler temporarily to shed her hoine
'Each of us has already made a written submission to Congress demonstrating that the
proposed statute also violates the Constitution because of the crucl and dangerous method it employs
to attempt to deter pregnant young women from obtaining lawful abortions in neighboring states;
because it places an "unduc burden" upon the pregnant young woman's right to choose to terminate
her pregnancy; and because it lacks a constitutionally-mandated exception for abortions necessary
to protect the health of the pregnant woman. Sce "The Constitution and the Proposed Child Custody
Protection Act." Written Testimony of Pcter J. Rubin before the Scuate Committee on the Judiciary
("Rubin Testimony"), May 20, 1998 at 6-7 (proposed law will brutally endanger the safety of
pregnant minors to whom it applies in violation of the Due Process Clause); Memorandum of Law
of Professor Laurence H. Tribe to the Orrin G. Hatch and the other Members of the Senate
Committee on the Judiciary, June 23 1998 ("Tribe Metnorandum") at 6-9 (proposed law would
impose an "undue burden" under Planned Purenthood of Southeastern Pennsylvania V. Casey. 505
U.S. 833 (1992), and lacks a required health exception); Rubin Testimony at 7-10 (same). Although
the only purpose of this memorandum is to address questions or Tederalism, each of us adheres to
his previously expressed views.
There are significant constitutional limits, of course, even upon a state's authority to tax its
residents on transactions undertaken, or income earned. in other states, but so long as there is no
taxation without representation (as there is not if the resident's eligibility to vole remains intact
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state's regime of laws regulating primary conduct in favor of the legal regime of the state she has
chosen to visit. Whether cast in terms of the destination state's authority to enact laws effective
throughout its domain without having to make exceptions for travelers from other states, or cast in
terms of the individual's right to travel - which would almost certainly be deterred and would in any
event be rendered virtually meaningless if the traveler could not shake the conduct-constraining laws
of her home state - the proposition that a state may not project its laws into other states by following
its citizens there is bedrock in our federal system.
One need reflect only briefly on what rejecting that proposition would mean in order to
understand how axionatic it is to the structure of federalism. Suppose that your home state or
Congress could lock you into the legal regime of your home state as you travel across the country.
This would mean that the speed limits, marriage regulations, restrictions on adoption. rules about
assisted suicide, firearms regulations, and all other controls over behavior enacted by the state you
sought to leave behind, either temporarily or permanently, would in fact follow you into all 49 of the
other states as you traveled the length and breadth of the nation in search of more hospitable "rules
of the road." If your search was for a more favorable legal cnvironment in which to make your
home, you might as well just look up the laws of distant states on the internet rather than roaming
about in a futile effort at sampling them, since you will not actually experience those laws by
traveling there. And if your search was for a less hostilc legal environment in which to attend
college or spend a summer vacation or obtain a medical procedure, you might as well skip even the
internet, since the theoretically less hostile laws of other jurisdictions will mean nothing to you so
long as your state of residence remains unchanged. Unless the right to travel interstato means
nothing more than the right to change the scenery, opting for the open fields of Kansas or the
mountains of Colorado or the beaches of Florida but all the while living under the legal regime of
whichever state you call home, telling you that the laws governing your behavior will remain
constant as you cross from one state into another and then another is tantamount to telling you that
you may in truth be compelled to remain at home - although you may, or course, cngage in a
simulacrum of interstate travel, with an experience much like that of the visitor to a virtual reality
arcade who is strapped into special equipment that provides the look and feel of alternative physical
environments - from sea to shining sca - but that does not alter the political and legal environment
one iota. And, of course, if home-state legislation, or congressional legislation, may saddle the home
state's citizens with that state's abortion regulation regime, then it may saddle them with their home
state's adoption and marriage regimes as well, and with piece after piece of the home state's legal
fabric until the home state's citizens are all safely and lightly wrapped in the straitjacket of the home
state's entire legal regime. There are no constitutional scissors that can cut this process short, по
principled metric that can supply a stopping point. The principle underlying H.R. 1218 is nothing
less, therefore, than the principle that individuals may indeed be tightly bound by the legal regimes
notwithstanding temporary absence from the state) and so long as the subject of the tax is not such
as to Incur a danger of multiple taxation, the absent resident's continuing eligibility for whatever
benefits and services the state constitutionally extends to all its residents and only to its residents
imposes if potential burden on state resources for which at least a minimal tax may in some
circumstances bc warranted.
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of their home states even as they traverse the nation by traveling to other states with very different
regimes of law. It follows, therefore, that - unless the right to engage in interstate travel that is so
central to our federal system is indeed only a right to change the surrounding scenery - H.R. 1218
rests on a principle that obliterates that right completely.
It is irrelevant to the federalism analysis that the proposed federal statute does not literally
prohibit the minor herself from obtaining an out-of-state abortion without complying with the
parental consent or notification laws of her home state. criminalizing instead only the conduct of
assisting such a young woman by transporting her across state lines. The manifest and indeed
avowed purpose of the statute is to provent the pregnant minor from crossing state lines to obtain an
abortion that is lawful in her state of destination whenever it would have violated her home state's
law to obtain an abortion there because the pregnant woman has not fully complied with her home
state's requirements for parental consent or notification. The means used to achieve this end do not
alter the constitutional calculus. Prohibiting assistance in crossing state lines in the manner of this
proposed statute suffers the same infirmity with respect to our federal structure as would a direct ban
on traveling across state lines to obtain an abortion that complies with all the laws of the state where
it is performed without first complying also with the laws that would apply to obtaining an abortion
in one's home state.
The federalism principle we have described operates routinely in our national life. Indeed.
it is so commonplace it is taken for granted. Thus, for example, neither Virginia nor Congress could
prohibit residents of Virginia, where casino gambling is illegal, from traveling interstate to gamble
in a casino in Nevada. (Indeed, the economy of Nevada essentially depends upon this aspect of
federalism for its continued vitality!) People who like to hunt cannot be prohibited from traveling
to states where hunting is legal in order to avail themselves of those pro-hunting laws just because
such hunting may bc illegal in their home state. And citizens of every state must be free, for
example, to read and watch material, even constitutionally unprotected material, in New York City
the distribution of which might be unlawful in their own states, but which New York has chosen not
to forbid. To call interstate travel for such purposes an "evasion" or "circumvention" of one's
home-state laws - as II.R. 1218 purports to do, see H.R. 1218 ("Transportation of minors in
circumvention of certain laws relating to abottion") - is to misunderstand the basic premise of
federalism: one is entitled to "avoid" those laws by traveling interstate. Doing so amounts to neither
cvasion nor circumvention.
Put simply, you may not be compelled to abandon your citizenship in your home state as a
condition of voting with your fect for the legal and political regime of whatever other state you wish
to visit. The fact that you intend to return home cannot undercut your right, while in another state,
10 be governed by its rules of primary conduct rather than by the rules of primary conduct of the state
from which you came and to which you will return. When in Rome, perhaps you will not do as the
Romans do, but you are entitled - if this figurative Rome is within the United States - to be
governed as the Romans arc. If something is lawful for one of them to do, it must be lawful for you
as well. The fact that each state is free, notwithstanding Article IV, to make certain benefits
available on a preferential basis to its own citizens docs not mean that a state's criminal laws may
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be replaced with stricter ones for the visiting citizen from another statc, whether by that state's own
choice or by virtue of the law of the visitor's state or by virtue of a congressional enactment. To he
sure, a state need not treat the travels of its citizens to other states as suddenly lifting otherwise
applicable restrictions when they return home. Thus, a state that bans the possession of gambling
equipment, of specific kinds of weapons, of liquor, or of obscene material may certainly enforce such
bans against anyone who would bring the contraband items into the jurisdiction, including its own
residents returning from a gambling state, a hunting state, a drinking state, or a state that chooses not
to outlaw obscenity. But that is a far cry from projecting one state's restrictive gambling, firearms,
alcohol, or obsenity laws into another state whenever citizens of the first statc venture there.
Thus states cannot prohibit the lawful out-of-state conduct of their citizens, nor may they
impose criminal-law-backed burdens - as H.R. 1218 would do - upon those lawfully engaged in
business or other activity within their sister statcs, Indeed, this principle is so fundamental that it
runs through the Supreme Court's jurisprudence in cases that are nominally about provisions and
rights as diverse as the Commerce Clause, the Due Process Clause, and the right to travel. which is
itself derived from several distinct constitutional sources.' See, e.g., Healy v. Beer Institute, 491
U.S. 324, 336 n. 13 (1989) (Commerce Clause decision quoting Edgar V. Mite Corp., 457 U.S. 624,
643 (1982) (plurality opinion), which in turn quoted the Court's Due Process decision in Shaffer v.
Heitner, 433 U.S. 186, 197 (1977)) ("The limits on a State's power to enact substantive legislation
are similar to the limits on the jurisdiction of stato courts. In either case, 'any attempt "directly" to
assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the
inherent limit of the State's power.' ").
The Supreme Court recently reaffirmed this fundamental principle in its landmark right to
travel decision, Saenz v. Roe, 119 S. CL, 1518 (1999). There the Court held that, even with
congressional approval, the State of California was powerless to carve out an exception to its
otherwise-applicable legal regime by providing recently-arrived residents with only the welfare
benefits that they would have been entitled to receive under the laws of their former states of
residence. This attempt to saddle these interstate travelers with the laws of their former home states
- even if only the welfare laws. laws that would operate far less directly and less powerfully than
would a special criminal-law restriction on primary conduct - was held to impose an unconstitutional
penalty upon their right to interstate travel, which, the Court held, is guaranteed them by the
Privileges or Immunities Clause of the Fourtcenth Amendment. Sce Sacnz, 119 S. Ct. at 1526-1527.
Although Sacnz concerned new residents of a state, the decision also reaffirmed that the
constitutional right to travel under the Privileges and Immunities Clause of Article IV, Section 2,
provides a similar type of protection to a non-resident who enters a state not to settle, but with an
intent eventually to return to her home state:
[B]y virtue of a person's state citizenship, a citizen of one State who travels in other States,
'See Saenz V. Roc. 119 S. Ct. 1518, 1525-1527 (1999) (describing the various components
or the right to travel and their constitutional derivation).
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intending to return home at the end of his journey, IS entitled to enjoy the "Privileges and
Immunities of Citizens in the several States" that ho visits. This provision removes "Trom
the citizens of each State the disabilities of alienage in the other States." Paul V. Virginia, 8
Wall. 168. 180 (1869). It provides important protections for nonresidents who enter a State
whether to obtain employment, Hicklin v.Orbeck, 437 U.S. 518 (1978), to procure medical
services, Doe V. Bolton, 410 U.S. 179, 200 (1973), or even to engage in commercial shrimp
fishing, Toomer V, Witsell, 334 U.S. 385 (1948).
Saenz. 119 S. Ct. at 1525-1526 footnotes and parenthetical omitted). Due v, Bolton, 410 U.S. 179
(1973), which was decided over a quarter century ago, and to which the Saenz court referred,
specifically held that, under Article IV of the Constitution, 2 state may not restrict the ability of
visiting non-residents to obtain abortions on the same terms and conditions under which they are
made available by law to state residents. "[T]he Privileges and Immunities Clause, Const. Art. IV,
§2, protects persons
who enter [a state] secking the medical services that are available there."
Id. at 200,
Thus, in terms of protection from being hobbled by the laws of one's home state wherever
one travels, nothing turns on whether the interstate traveler intends to remain permanently in her
destination state, or to return to her state of origin. Combined with the Court's holding that, like the
states, Congress may not contravene the principles of federalism that are sometimes described under
the "right to travel" label, Saenz reinforces the conclusion, if it were not clear before, that even if
enacted by Congress, a law like H.R. 1218 that attempts by reference to a state's own laws to control
that state's resident's out-of-state conduct on pains of criminal punishment, whether of that resident
or of whoever might assist her to travel interstate, would violate the federal Constitution. See also
Shapiro Y. Thompson, 394 U.S. 618, 629-630 (1969) (Invalidating an Act of Congress mandating
a durational residency requirement for District of Columbia residents seeking to obtain welfare
assistance).
Last month, this Committee heard testimony from Professor Lino Graglia of the University
of Texas School of Law. An oppoinent of abortion rights, he candidly conceded that the proposed
law would "make it
more dangerous for young women to exercise their constitutional right to
obtain a safe and legal abortion." Testimony of Lino A. Graglia on H.R. 1218 before the
Constitution Subcommittee of the Committee on the Judiciary, U.S. House of Representatives, May
27. 1999 at 1. He also concluded, however. that "the Act furthers the principle of federalism to the
extent that it reinforces or makes effective the very small amount of policymaking authority on the
abortion issue that the Supreme Court, an arm of the national government, has permitted to remain
with the States." Id. at 2. He testified that he supported the bill because he would support "anything
Congress can do to move control of the issue back into the hands of the States." Id. at 1.
or course, as the description of H.R. 1218 we have given above demonstrates, that proposed
statute would do nothing to move "back" into the hands of the states any of the control over abortion
that was precluded by Roe v. Wade, 410 U.S. 113 (1973), and its progeny. The several states already
have their own distinctive regimes for regulating the provision of abortion services to prognant
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minors, regimes that nro permitted under the Supreme Court's abortion rulings. That, indeed, is the
very premise of this proposed law. But, rather than respecting federalism by permitting each state's
law to operate within its own sphere, the proposed federal statute would contravenc that essential
principle of federalism by saddling the abortion-sceking young woman with the restrictive law of
her home state wherever she may travel within the United States unless she travels unaided. Indecd,
it would add insult to this federalism injury by imposing its regime regardless of the wishes of her
home state, whose legislature might recoil from the prospect of transforming its parental notification
laws, enacted ostensibly to encourage the provision of loving support and advice to distraught young
women, into an obstacle to the most desperate of these young women, compelling them in the
moment of their greatest despair to choose between, on the one hand, telling someone close to them
of their situation and perhaps exposing this loved one to criminal punishment, and, on the other,
going to the back alleys or on an unaccompanied trip to another, possibly distant state. This federal
statute would therefore violate rather than reinforce basic constitutional principles of federalism.
The fact that the proposed law applies only to those assisting the interstate travel of minors
seeking abortions may make the federalism-based constitutional infirmity somewhat less obvious
- while at the same time rendering the law more vulncrable to constitutional challenge because of
the danger in which it will place the class of frightened, perhaps desperate young women least able
to travel safely on their own. The importance of protecting the relationship between parents and their
minor children cannot be gainsaid. But in the end, the fact that the proposed statute involves the
interstate travel only of minors docs not alter our conclusion.
No less than the right to end a pregnancy, the constitutional right to travel interstate and to
take advantage of the laws of other states exists even for those citizens who are not yet eighteen.
"Constitutional rights do not mature and come into being magically only when one attains the
state-defined age of majority. Minors, as well as adults, are protected by the Constitution and
possess constitutional rights." Planned Parentliood of Central Missouri v. Danforth, 428 U.S. 52,
74 (1976). Nonethcless, the Court has held that, in furtherance of the minors' best interests,
government may in some circumstances have more leeway to regulate where minors are concerned.
Thus, whereas a law that sought. for example, to burden adult women with their home state's
constitutionally acceptable waiting periods for abortion (or with their home state's constitutionally
permissible medical regulations that may make abortion more costly) even when they traveled out
of state to avoid those waiting periods (or other regulations) would obviously be unconstitutional,
it might be argued that a law like the proposed one, which secks to force a young woman to comply
$Although the failure of H.R. 1218 to exempt states that would not opt to give their parental
involvement laws extraterritorial effect certainly aggravates its violation of federalism, this proposed
statute would, as wc have shown, violate federalism principles even if it permitted states to opt out.
Just as Congress may not license the state of destination of an interstate traveler to hobble the new
resident, even temporarily, with the laws of her former state of residence (even with respect to mere
benefits that the state of destination is free to limit to its OWII residents). SCC Saenz V. Koe, 119 S. Ct.
at 1528-1529, so Congress may not license an interstate traveler's home sta'c, during the time of that
traveler's sojourn in other states, to hobble her with its laws.
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with her home state's parental consent laws regardless of her circumstances, is, because of its focus
on minors, somehow saved from constitutional invalidity.
It is not, for at least two reasons. First, the importance of the constitutional right in question
for the pregnant minor too desporate oven to seek judicial approval for abortion in her home state
- either because of its futility there,5 or because of her terror at a judicial proceeding held to discuss
her pregnancy and personal circumstances - means that government's power to burden that choice
is severely restricted. As Justice Powell wrote over two decades ago:
The pregnant minor's options are much different from those facing a minor
in other situations. such as deciding whether to marry.
A pregnant adolescent
cannot preserve for long the possibility of aborting, which effectively expires in
a matter of weeks from the onsct of pregnancy.
Moreover, the potentially severe detriment facing a pregnant woman is not
mitigated by her minority. Indeed, considering her probable education, employment
skills, financial resources, and emotional maturity, unwanted motherhood may be
exceptionally burdensome for a minor. In addition, the fact of having a child brings
with it adult legal responsibility, for parenthood, like attainment of the age of
"In this regard. the Subcommittee on the Constitution has heard the testimony of Billie
Lominick, a 63-year old grandmother who helped a pregnant minor from a physically and sexually
abusive household cross state lines to obtain an abortion after she was unable to find any judge in
her home state of South Carolina who would hear her judicial bypass petition. There is also evidence
that the rate at which some state judges grant these petitions is disproportionatcly low, something
that appears to reflect their own personal views about abortion rather than the legal standards they
are supposed to apply: For example, in 1992 the director of a woman's clinic in Indianapolis
reported that in six years she had never known of any minor successfully obtaining a judicial bypass
in that city. Sce Lewin, Parental Consent to Abortion: How Enforcement Can Vary, The New York
Times, May 28, 1992 at A1. In Ohio, one 17 1/2 year old had a petition denied by a judge who
concluded that she had "nor had enough hard knocks in her life." Id.
"For a description of the emotional trauma that may be involved in judicial bypass
proceedings, see Hodgson V. Minnesota, 497 U.S. 417, 441-442 and 11. 29 (1990). Although bypass
procedures are required by the Constitution in order to prevent imposition by parental consent or
notification laws of a substantial obstacle in the path of A pregnant minor who wishes to have an
abortion, in all least some states "[t]he court (hypass] experience (itself] produced fear, tension,
anxiety, and shaine among minors, causing some who were mature, and some whose best interests
would have been served by an abortion. to 'forego the bypass option and either notify their parents
or carry to term.' Hodgson, 497 U.S. at 441-442 (quoting the unchallenged finding of the district
court). Indeed, rather than undergo the judicial bypass process, some girls have apparently been
driven to obtain unlawful abortions, which has led to the death of at least one 17 year old, Becky
Bell. See Lewin, supra.
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majority. is one of the traditional criteria for the termination of the legal disabilities
of minority. In sum, there are few situations in which denying a minor the right to
make an important decision will have consequences so grave and indelible,
Bellotti V, Baird (Bellotti In, 443 U.S. 622, 642 (1979) (plurality opinion) (citations omitted).
Second, the fact that the penalties on travel out of state by minors who do not first seck
parental consent or judicial bypass are triggered only by intent to obtain a lawful abortion and only
if the minor's home state has more stringent "minor protection" provisions in the form of parental
involvement rules than the state of destination. renders any protection-of-minors exception to the
basic rule of federalism unavailable,
To begin with, the proposed law, unlike one that evenhandedly defers to each state's
determination of what will best protect the emotional health and physical safety of its pregnant
minors who seek to terminate their pregnancies, simply defers to states with strict parental control
laws and subordinates the interests of states that have decided that legally-mandated consent or
notification is not a sound means of protecting pregnant minors. The law does not purport to impose
a uniform nationwide requirement that all pregnant young women should be subject to the abortion
laws of their home states and only those abortion laws wherever they may travel. Thus, under H.R.
1218, a pregnant minor whose parents believe that it would be both destructive and profoundly
disrespectful to their mature, sexually active daughter to require her by law to obtain their consent
before having an abortion, and who live in a state whose laws reflect that view, would, despite the
judgment expressed in the laws of her home state, still bc required to obtain parental consent should
sho seek an abortion in a neighboring state with a stricter parental involvement law - something she
might do, for example, because that is where the nearcst abortion provider is located. This
substantively slanted way in which H.R. 1218 would opcrate fatally undermines any argument that
might otherwise be available that principles of federalism must give way because this law seeks to
ensure that the health and safety of pregnant minors are protected in the way their home states have
decided would be best.⁷
In addition, the proposed law, again unlike one protecting parental involvement generally,
sclectively targets one form of control: control with respect to the constitutionally protected
procedure of terminating a pregnancy before viability. The proposed law does not do a thing for
parental control if the minor is being assisted into another state (or, where the relevant regulation is
'Nor does this law even purport to be justified as a reflection of Congress's own vision of
what would best protect the pregnant minor. This law docs not impose a federal parental
involvement standard either nationwide oΓ, assuming it would be constitutionally permissible, upon
all prognant minors engaged in interstate travel for purposes of having an abortion. For Congress
to decide to apply its parental involvement regime only when minors travel from more restrictivo
to less restrictive states, and for it to do so without itself determining what level of parental
involvement is appropriate - as is the case with H.R. 1218 - is incompatible with either a protection-
of-minors purpose or a federalism-promoting purpose.
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local, into another city or county) for the purpose of obtaining a tattoo, or endoscopic surgery to
correct a foot problem. or laser surgery for an eye defect. The law is activated only when the medical
procedure being obtained in another state is the termination of a pregnancy. It is as though Congress
proposed to assist parents in controlling their children when, and only when, those children wish to
buy constitutionally protected but sexually explicit books about methods of birth control and
abortion in states where the sale of such books to these minors is entirely lawful.
The basic constitutional principle that such laws overlook is that the greater power does not
necessarily include the lesser. Thus, for example, even though so-called "fighting words" may bc
banned altogether despite the First Amendment, it is unconstitutional, the Supreme Court held in
1992, for government selectively to ban those fighting words that are racist or anti-semitic in
character. Sce R.A.V. V. City of St. Paul, 505 U.S. 377, 391-392 (1992). To take another example,
Congress could not make it A crime to assist a minor who has had an abortion in the past to cross 3
state line in order to obtain a lawful form of cosmetic surgery elsewhere if that minor has not
complied with her state's valid parental involvement Jaw for such surgery. Even though Congress
might enact & broader law that would cover all the minors in the class described, it could not enact
a law nimed only at those who have had abortions. Such a law would impermissibly single out
abortion for special burdens. The proposed law does so as well. Thus, even if a law that were
properly drawn to protect minors could constitutionally displace one of the basic rules of federalism,
the proposed statute can not.
Lastly, in oral testimony before the Subcommittee on the Constitution, Profcssor John
Harrison of the University of Virginia, while conceding that ordinarily a law such as this, which
purported to impose upon an individual her home state's laws in order to prevent her from engaging
in lawful conduct In one of the other states, would bc constitutionally "doubtful," argued that the
constitutionality of this law is resolved by the fact that it relates to "domestic relations," a sphere in
which, according to Professor Harrison, "the state with the primary jurisdiction over the rights and
responsibilities of parties to the domestic relations is the state of residence and not the state where
the conduct" at issue occurs. See transcript of the Hearing of the Constitution Subcommittee of the
House Judiciary Committee on the Child Custody Protection Act, May 27, 1999.
This "domestic relations exception" to principles of federalism described by Professor
Harrison, however, does not exist, at least not in any context relevant to the constitutionality of H.R.
1218. To be sure, acting pursuant to Article IV, § 1, Congress has prescribed special state
obligations to accord full faith and credit to judgements in the domestic relations context - for
example, to child custody determinations and child support orders. 28 U.S.C. §§ 1738A, 1738B.
These provisions also establish choice of law principles governing modification of domestic relations
'We have not raised any objection that H.R. 1218 would exceed Congress's affirmative
Commerce Clause authority under Lopez 1: United States. 514 U.S. 549 (1995). We do not believe
such an objection would be well-taken. Of course, to the extent an affirmatively authorized federal
requirement of parental involvement in interstate surgical trips would unduly burden the abortion
rights of minors, it would be unconstitutional.
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orders. In addition, in a controversial provision whose constitutionality is open to question,
Congress has said that states are not required to accord full faith and credit to same-sex marriages.
Id. at $ 1738C.
But the special measures adopted by Congress in the domestic relations context can provide
no justification for H.R. 1218. There is a world of difference between provisions Jike §§ 1738A and
1738B, which prescribe the full faith and credit to which state judicial decrees and judgments are
entitled, and proposed H.R. 1218, which in effect gives state statutes extraterritorial operation - by
purporting to impose criminal liability for interstate travel undertaken to engage in conduct lawful
within the (crritorial jurisdiction of the state in which the conduct is to occur, based solely upon the
laws in effect in the state of residence of the individual who secks to travel to a state where she cal)
engage in that conduct lawfully.
The Supreme Court has always differentiated "the credit owed to laws (legislative measures
and common law) and to judgments." Baker V. General Motors Corp., 118 S. Ct. 657, 663 (1998).
For example, while a state may not decline on public policy grounds to give full faith and credit to
a judicial judgment from another state, see, e.g., Fauntleroy 1. Lum, 210 U.S. 230, 237 (1908), a
forum state has always been free to consider its own public policies in declining to follow the
legislative enactments of other states. See Nevada V. Hall, 440 U.S. 410, 421-24 (1979). In short,
under the Full Faith and Credit Clause, a state has never been compelled "to substitute the statutes
of other states for its own statutes dealing with a subject matter concerning which it is competent to
legislate." Pacific Employers Ins. Co. V. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939).
In fact, the Full Faith and Credit Clausc was meant to prevent "parochial entrenchment on the
interests of other States." Thomas V. Washington Gas Light Co., 448 U.S. 261, 272 (1980) (plurality
opinion). A state is under no obligation to enforce another state's statute with which it disagrees.
But H.R. 1218 would run afoul of that principle. It imposes the restrictive laws of a woman's
home state wherever she travels, in derogation of the usual rules regarding choice of law and full
faith and credit.
11
NARAL Promoting Reproductive Choices
THE "CHILD CUSTODY PROTECTION ACT" AND THE
INADEQUACY OF JUDICIAL BYPASS PROCEDURES
The so-called "Child Custody Protection Act" introduced in Congress in 1998 and
amended during committee consideration would make it a federal crime for any
person other than a parent to knowingly transport a minor across state lines for the
purpose of obtaining an abortion if the young woman has not complied with the state
of origin's law requiring parental involvement. Anyone, including a grandparent,
aunt or religious counselor, could be convicted under the proposed statute.
The bill, if enacted, will have serious and harmful consequences for young women;
consequences that are not fully ameliorated by judicial bypass procedures. The
Supreme Court has stated that, in order to be constitutional, a state statute requiring
parental involvement must have some sort of bypass procedure, such as a judicial
bypass.¹ No one person may have an absolute veto over a minor's decision to have an
abortion.² The Supreme Court has articulated four criteria for a judicial bypass
procedure: first, the statute must allow the minor to show that she is mature enough
to make her own decision regarding abortion; second, the minor must be allowed to
show that, even if she cannot make the decision by herself, the abortion is in her best
interests; third, the bypass procedure must ensure the minor's anonymity and
confidentiality; and fourth, the bypass procedure must l
nducted expeditiously.
Notwithstanding these procedural requirements, judicial bypass proceedings pose
formidable obstacles to young women facing crisis pregnancies. Some young women
cannot maneuver the legal procedures required, or cannot attend hearings scheduled
during school hours. Others do not go or delay going because they fear that the
National Abortion
proceedings are not confidential or that they will be recognized by people at the
and Reproductive Rights
courthouse. Furthermore, many young women do not want to reveal intimate details
Action League
of their personal lives to strangers. The time required to schedule the court
1156 15th Street. NW
proceeding may also result in a delay of a week or more, thereby increasing the health
Suite 700
risks of the abortion.
Washington, DC 20005
Phone (202) 973-3000
Fax (202) 973-3096
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Suite B
Culver City CA 90232
Phone (310) 559-9334
Fax (310) 204 6942
E Mail [email protected]
Some young women who manage to arrange a hearing face judges who are vehemently anti-
choice and who routinely deny petitions, despite rulings by the U.S. Supreme Court that a minor
must be granted a bypass if she is mature, or if an abortion is in her best interests. As a result,
some minors in states with parental involvement laws travel to a neighboring state to obtain an
abortion instead of trying to obtain a judicial bypass.⁶ The following examples gathered from
studies and appellate court review of lower court decisions demonstrate the difficulties caused by
judicial bypass proceedings. The principal difficulties, as this paper outlines, are limited access
to providers, anti-choice judges, delays, and loss of confidentiality throughout the bypass
procedure.
ACCESS TO THE COURTS AND TO PROVIDERS IS DIFFICULT FOR MINORS.
Access to abortion providers in the United States is limited. Eighty-four percent of
counties do not have an abortion provider.⁷ For some women, a reproductive health
facility in another state may be the closest to their home or the only one with the
necessary services. In North Dakota, for example, one doctor keeps the state's sole
abortion clinic open only on Wednesdays.
One study found that courts in Massachusetts, Minnesota and Rhode Island are not open
in the evenings or on weekends, which are times that minors could attend bypass
procedures without missing school or arousing suspicions.9
ANTI-CHOICE JUDGES OFTEN IGNORE THE STANDARDS SET FORTH BY THE
SUPREME COURT.
In his dissent in Hodgson V. Minnesota, Justice Marshall commented, "it is difficult to
conceive of any reason, aside from a judge's personal opposition to abortion that would
justify a finding that an immature woman's best interests would be served by forcing her
to endure preg' ancy and childbirth against her will. 10
In Indiana, lawyers and clinics routinely refer teenagers out of state because local judges
either refuse to hold hearings or are widely known to be anti-choice.¹¹
A 1983 study found that a number of judges in Massachusetts refuse to handle abortion
petitions or focus inappropriately on the morality of abortion and are insulting and rude to
the minors and their attorneys. 12 The Supreme Court found that in Minnesota, many
judges refuse to even hear bypass proceedings.¹³
After denying a bypass petition to a 15-year-old Florida girl who was in high school,
participated in extracurricular activities, worked 20 hours a week, and baby-sat regularly
for her mother. the judge suggested that he, as a representative of the court, had
standing to represent the state's interest when the minor appealed the denial. 14
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 2
A 17-year-old Ohio girl who testified that her father beat her was denied a judicial
bypass. At the time, she was senior in high school with a 3.0 average who played team
sports, worked 20-25 hours a week, and paid for her automobile expenses and medical
care.¹⁵
In denying the petition of one young woman, a Missouri judge stated: "Depending upon
what ruling I make I hold in my hands the power to kill an unborn child. In our society
it's a lot easier to kill an unborn child than the most vicious murderer.
I don't believe
that this particular juvenile has sufficient intellectual capacity to make a determination
that she is willing to kill her own child."¹⁶
A judge in Toledo, Ohio denied permission to a 17 ½-year-old woman, an "A" student
who planned to attend college and who testified she was not financially or emotionally
prepared for college and motherhood at the same time, stating that the girl had "not had
enough hard knocks in her life."¹⁷
In Louisiana, a judge denied a 15-year-old's bypass petition after asking her a series of
inappropriate questions including what the minor would say to the fetus about her
decision. Her request was granted only after a rehearing by six appellate court judges. 18
A North Carolina Superior Court denied a bypass petition of a mature 16-year-old girl
who did well in school, participated in extracurricular activities, and had a part-time job.
Despite the judge's findings of her maturity, informed consent, and awareness of the
abortion procedure, he concluded that the petitioner was not "well-informed enough" to
make the abortion decision on her own. The appellate court eventually reversed the lower
court decision, but this extra delay increased the medical risks of the abortion. 19
JUDICIAL BYPASS PROCEDURES DELAY MINORS' ACCESS 10 ABORTION,
THEREBY INCREASING THE HEALTH RISKS.
Many teens recognize the physical signs of pregnancy later than do older women
and thus might not discover their pregnancy until the second trimester. 20
While a first or second trimester abortion is far safer than childbirth, the risk of death or
major complications significantly increases for each week that elapses after eight weeks.²¹
The American Medical Association concluded in a 1992 study that parental consent and
notice laws "increase the gestational age at which the induced pregnancy termination
occurs, thereby also increasing the risk associated with the procedure.'
A Minnesota district court found that "scheduling practices in Minnesota courts typically
require minors to wait two or three days between their first contact with the court and the
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 3
hearing of their petitions. This delay may combine with other factors to result in a delay
of a week or more. A delay of this magnitude increases the medical risk associated with
the abortion procedure to a statistically significant degree. Even a shorter delay may push
the minor into the second trimester, when the abortion procedure entails significantly
greater costs, inconvenience, and medical risk. "23
A Montgomery teenager who sought a judicial bypass petition to obtain an abortion
without her mother's consent was granted the petition after it was too late to get an
abortion in Montgomery County. The only clinic that could perform the abortion in
Alabama was in Birmingham. Because the court order was only valid in Montgomery
County, the minor had to repeat the court process, which caused another week to pass
before she was able to terminate pregnancy. As a result of the delay, the procedure was
riskier and more costly then it would have been when she first sought the abortion. 24
MINORS FEAR THAT THE JUDICIAL BYPASS PROCEDURE IN FACT LACKS THE
NECESSARY CONFIDENTIALITY.
The American Medical Association noted that "[b]ecause the need for privacy may be
compelling, minors may be driven to desperate measures to maintain the confidentiality
of their pregnancies. They may run away from home, obtain a 'back alley' abortion, or
resort to a self-induced abortion. The desire to maintain secrecy has been one of the
leading reasons for illegal abortion deaths since
1973. "25
Young women's concern about confidentiality is especially acute in rural areas. For
instance, in one case a minor discovered that her bypass hearing would be conducted by
her former Sunday school teacher. 26
In Minnesota, judicial bypass petitions have been moved to the courthouse bathroom in
order to maintain the minor's anonymity.27
A California social worker testified that adolescents perceive the court as a place where
criminals go and that the intimate details they reveal to the judge will be used against
them in the future.2⁸
Because "even a perceived lack of confidentiality in health care regarding sexual issues
deters them [minors] from seeking services," the American Academy of Pediatrics
criticizes parental involvement statutes for delaying medical care to pregnant minors.²⁹
12/21/98
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 4
Notes:
1.
Hodgson V. Minnesota, 497 U.S. 417, 420 (1990) (requiring a bypass procedure for a two parent
notification statute); Ohio V. Akron Center for Reproductive Health, 497 U.S. 502, 510 (1990) (requiring
bypass procedures for parental consent statutes).
2.
Planned Parenthood of Central Missouri V. Danforth, 428 U.S. 52, 74 (1976).
3.
Akron, 497 U.S. at 511-13.
4.
Hodgson V. Minnesota, 648 F. Supp. 756, 763-64 (D. Minn. 1986).
5.
Hodgson, 648 F. Supp. at 763.
6.
Charlotte Ellertson, "Mandatory Parental Involvement in Minors' Abortions: Effects of the
Laws in Minnesota, Missouri, and Indiana," American Journal of Public Health, vol. 87, no.
8 (Aug. 1997): 1371-72; Virginia G. Cartoof and Lorraine V. Klerman, "Parental Consent for
Abortion: Impact of the Massachusetts Law," American Journal of Public Health, vol. 76,
no. 4 (Apr. 1986): 397-400.
7.
Stanley K. Henshaw and Jennifer Van Vort, "Abortion Services in the United States, 1991
and 1992," Family Planning Perspectives, vol. 26, no. 3 (May/June 1994): 103.
8.
Jack Hitt. "Who Will Do Abortions Here?," N.Y. Times Magazine, Jan. 18, 1998, p. 20.
9.
Patricia Donovan, "Judging Teenagers: How Minors Fare When They Seek Court-
Authorized Abortions," Family Planning Perspectives, vol. 15, no. 6 (Nov./Dec. 1983): 259.
10.
Hodgson, 497 U.S. at 475.
11.
Tamar Lewin, "Parental Consent to Abortion: How Enforcement Can Vary," New York
Times, May 28, 1992, p. A1.
12.
Donovan, "Judging Teenagers," 259.
13.
Hodgson, 497 U.S. at 475.
14.
In re T.W., 551 So. 2d 1186, 1190 (Fla. 1989).
15.
In re Jane Doe 1, 57 Ohio St. 3d 135, 135 (Ohio 1991).
16.
T.L.J. V. Webster, 792 F. 2d 734, 738-39 n.4 (1986) (reversing the decision of the St.
Charles County Juvenile Court).
17.
Tamar Lewin, "Parental Consent," p. B8.
18.
National Abortion Federation (NAF) and the National Women's Law Center, "The
Judicial Bypass Procedure Fails to Protect Young Women," (no date) (factsheet).
19.
In re Doe, No. COA97-323 at 2-3 (N.C. Ct. App. June 3, 1997).
20.
Jeannie Rosoff, Stanley Henshaw, and Jennifer Van Vort, "What's Happening to Abortion Rates?"
Sexuality and American Social Policy, 1996: xvii.
21.
Willard Cates, Jr. and David Grimes, "Morbidity and Mortality of Abortion in the United
States," Abortion and Sterilization. Jane Hodgson. ed. (New York Grune and Stratton,
1981). 158; Rachel Benson Gold. Abortion and Women's Health: A Turning Point for
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 5
America? (New York: Alan Guttmacher Institute (AGI), 1990), 29-30.
22.
American Medical Association (AMA), "Induced Termination of Pregnancy Before and
After Roe V. Wade, Trends in the Mortality and Morbidity of Women," Journal of the
American Medical Association (JAMA), vol. 268, no. 22 (Dec. 1992): 3238.
23.
Hodgson, 648 F. Supp. at 763.
24.
NAF & Planned Parenthood Federation of America, "Undue Burdens: the States'
Experiences," 1993 (factsheet).
25.
Council on Ethical and Judicial Affairs, AMA, "Mandatory Parental Consent to Abortion,"
JAMA, vol. 269, no. I (Jan. 6, 1993): 83.
26.
Memphis Planned Parenthood V. Sundquist, No. 3:89-0520, slip op. at 13 (M.D. Tenn. Aug.
26, 1997).
27.
Donovan, "Judging Teenagers," 264.
28.
American Academy of Pediatrics V. Lungren, 940 P.2d 797, 845 (Cal. 1997).
29.
Committee on Adolescence, American Academy of Pediatrics (AAP), "The Adolescent's
Right to Confidential Care When Considering Abortion," Pediatrics, vol. 97, no. 5 (May
1996): 749.
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 6
NARAL Promoting Reproductive Choices
THE "CHILD CUSTODY PROTECTION ACT" THREATENS
YOUNG WOMEN'S HEALTH
Legislation entitled the "Child Custody Protection Act" was introduced in Congress
in 1998 and amended during committee consideration that would prohibit anyone
other than a parent, including a grandparent, aunt, or religious counselor from taking a
young woman across state lines for an abortion if it would violate the home state's
parental involvement law. Similar legislation is expected to be introduced in 1999.
Adolescents should be encouraged to seek their parents' advice and counsel when
facing difficult choices regarding abortion and other reproductive health issues.
Indeed, most young women do involve one or both parents when considering
abortion. Even in states that enforce no mandatory parental consent or notice
requirements, 61 percent of parents knew of their daughters' pregnancy.¹ The
government, however, cannot mandate healthy family communication where it does
not already exist.
When a young woman cannot involve a parent, public policies and medical
professionals should encourage her to involve a trusted adult. Indeed, one study
found that more than half of all young women who did not involve a parent did
involve an adult, including 15 percent who involved a step-parent or adult relative.²
However, if the so-called "Child Custody Protection Act" is enacted, it could
endanger young women's lives and health by isolating those who believe they cannot
involve a parent. Rather than making abortion more difficult and dangerous for
young women, Congress should do more to create the conditions that enable women
to make true choices by providing comprehensive sexuality education and ensuring
that women have access to a range of effective contraceptives.
National Abortion
and Reproductive Rights
This Legislation Would Further Isolate Those Young Women Who -- For Good
Action League
Reasons -- Do Not Involve A Parent In Their Decision To Have An Abortion.
1156 15th Street. NW
Suite 700
Most young women find love. support and safety in the home. Many, however,
Washington. DC 20005
Phone (202) 973-3000
justifiably fear that they would be physically or emotionally abused if forced to
Fax (202) 973-3096
disclose their pregnancy. Often young women who do not involve a parent come
10536 Culver Boulevard
from families where government-mandated disclosure could have devastating effects.
Suite B
Culver City, C4 90232
Phone (310) 559-9334
Approximately 3.2 million cases of child abuse were reported in 1997.
Fax (310) 204 6942
Young women considering abortion are particularly vulnerable
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because family violence is often at its worst during a family member's
pregnancy.³
Among minors who did not tell a parent of their abortion, 30 percent had
experienced violence in their family or feared violence or being forced to leave
home.⁴
In Idaho, a 13-year-old sixth grade student named Spring Adams was shot to
death by her father after he learned she was to terminate a pregnancy caused by
his acts of incest.⁵
In addition to fear of violence, some minors do not involve a parent because they believe
that the knowledge would damage their relationship with the parent, they fear that it
would escalate conflict or coercion, or they want to protect a vulnerable parent from
stress and disappointment.⁶
When a young woman believes that she cannot involve a parent, the law cannot mandate healthy,
open family communication. Indeed there is no evidence that laws like the "Child Custody
Protection Act" will do anything but isolate young women who believe -- for valid reasons
that they cannot involve a parent. Instead of encouraging young women to involve a trusted
adult who may be able to offer much needed assistance, this law will cause some young women
to face these decisions alone, without any help.
This Legislation Would Endanger Young Women's Health.
Young women who determine that they cannot involve a parent often seek help and guidance
from other important and trusted people in their lives such as grandparents, aunts or ministers.
Such adults can provide a minor with valuable advice, counsel and assistance. However, this bill
would discourage young women from seeking such help or assistance and would further isolate
them in their decision. As a result, the legislation could force some young women to turn to
illegal or self-induced abortion or to delay the procedure.
By discouraging -- in fact, criminalizing -- people who help young women in
crisis pregnancies, the law could expose young women to increased health risks.
In one study, 93 percent of the minors who did not involve a parent in their
decision to obtain an abortion were nonetheless accompanied by someone to the
abortion clinic.⁷ Such company is important to provide assistance to a minor
before and after the abortion. However, this legislation will force some minors to
have an unaccompanied abortion and potentially to drive themselves long
distances, thereby exposing them to greater health risks.
When faced with parental involvement laws. young women who feel they cannot
involve a parent take drastic steps:
NATIONAL ABOR TION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 2
The American Medical Association noted that "[b]ecause the need for privacy
may be compelling, minors may be driven to desperate measures to maintain the
confidentiality of their pregnancies. They may run away from home, obtain a
'back alley' abortion, or resort to self-induced abortion. The desire to maintain
secrecy has been one of the leading reasons for illegal abortion deaths since
1973."⁸
In Indiana, Rebecca Bell, a young woman who had a very close relationship with
her parents, died from an illegal abortion because she did not want her parents to
know about her pregnancy. Indiana law required parental consent before she
could have a legal abortion.⁹
Obstacles such as parental involvement laws increase the health risks to women
by increasing the gestational age at which young women obtain abortions. The
American Medical Association concluded in a 1992 study that parental consent
and notice laws "increase the gestational age at which the induced pregnancy
termination occurs, thereby also increasing the risk associated with the
procedure.' Although a first or second trimester abortion is far safer than
childbirth, the risk of death or major complications significantly increases for each
week that elapses after eight weeks.¹ This legislation could lengthen the delays
for young women seeking abortion, causing them to get later abortions.
This legislation could require young women to travel farther to obtain needed
abortion services. Access to abortion providers in the United States is limited.
Eighty-six percent of counties do not have an abortion provider. 12 For some
women, a reproductive health facility in another state may be the closest to their
home. For instance, a reproductive health clinic in Duluth, Minnesota serves
women from Minnesota, Wisconsin, Michigan and Ontario, Canada. 13 Under this
legislation, a grandmother could be subject to criminal charges for taking her
granddaughter to an out-of-state facil. , even if the out-of-state facility was the
closest to the young woman's home.
Because A Judicial Bypass Is Not A Realistic Option, Some Young Women Obtain
Abortions in Neighboring States.
Twenty-eight states that require parental consent or notice laws provide a judicial bypass through
which a young woman can seek a court order allowing an abortion without parental
involvement.¹⁴ For young women, it can be overwhelming and at times impossible to manage
the judicial bypass procedures. Some young women cannot maneuver the legal procedures
required, or cannot attend hearings scheduled during school hours. Others do not go or delay
going because they fear that the proceedings are not confidential or that they will be recognized
by people at the courthouse. Many young women do not want to reveal intimate details of their
personal lives to strangers. 15 The time required to schedule the court proceeding may result in a
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 3
delay of a week or more, thereby increasing the health risks of the abortion. 16
Some young women who manage to arrange a hearing face judges who are vehemently anti-
choice and who routinely deny petitions, despite rulings by the U.S. Supreme Court that a minor
must be granted a bypass if she is mature or if an abortion is in her best interests. As a result,
minors in states with parental involvement laws frequently go to a neighboring state to obtain an
abortion instead of trying to obtain a judicial bypass. 17
In Indiana, lawyers and clinics routinely refer teenagers out of state because local
judges either refuse to hold hearings or are widely known to be anti-choice. 18
Young women's concern about confidentiality is especially acute in rural areas.
For instance, in one case a minor discovered that her bypass hearing would be
conducted by her former Sunday school teacher. 19
The Ohio Supreme Court upheld the denial of a petition of a 17-year-old girl who
testified that her father beat her. At the time, she was a senior in high school with
a 3.0 average who played team sports, worked 20-25 hours a week, and paid for
her automobile expenses and medical care. 20
The Legislation Contains Legal Deficiencies.
The legislation contains several legal weaknesses that could render it unconstitutional.
Under this legislation, a young woman who determined that she could not involve
her parents may have to go through a judicial bypass in two states. For instance,
if the young woman lived in a state with one parent consent law, but the closest
clinic was in a state that also had a one parent consent law, the minor would have
to go through the judicial bypass in her state of residence as well as in the state
that sne obtained the abortion. Requiring a minor to juggle judicial bypasses in
two different states could constitute an unconstitutional undue burden.²¹
Under the legislation, a person could be prosecuted for taking a minor to a
neighboring state, even if that person does not intend -- or even know -- that the
parental involvement law of the state of residence has not been followed. Such a
result would violate the due process rights of a person who assists a minor facing
a crisis pregnancy by creating a strict liability statute. 22
The "life" exception is unconstitutionally narrow. First, the "life" exception
impermissibly limits the situations that would qualify under it by enumerating
certain circumstances but not others. As the Supreme Court has recognized, life
exceptions cannot pick and choose among life-threatening circumstances. 23
Second, the legislation contains no exception at all to protect a woman's health.
NATIONAL ABOR TION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 4
As the Court noted in Planned Parenthood of Southeastern Pennsylvania V.
Casey, "the essential holding of Roe forbids a State from interfering with a
woman's choice to undergo an abortion procedure if continuing her pregnancy
would constitute a threat to her health."²⁴
Making Abortion Less Necessary Among Teenagers Requires A Comprehensive Effort to
Reduce Teen Pregnancy.
Abortion among teenagers should be made less necessary, not more difficult and dangerous. A
comprehensive approach to promoting adolescent reproductive health and reducing teen
pregnancy will require an array of components, including: age-appropriate health and sexuality
education; life options programs that offer teens practical life skills and the motivation to delay
sexual activity; programs for pregnant and parenting teens that teach parenting skills and help
ensure that teens finish school; increased information about emergency contraception pills; and
access to confidential health services, including family planning and abortion.
1/6/99
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 5
Notes:
1.
Stanley K. Henshaw and Kathryn Kost, "Parental Involvement in Minors' Abortion Decisions," Family Planning
Perspectives, vol. 24, no. 5 (Sept./Oct. 1992): 197, 199-200.
2.
Henshaw and Kost, "Parental Involvement," 207.
3.
Ching-Tung Wang and Deborah Daro, Current Trends in Child Abuse Reporting and Fatalities: The Results of the
1997 Annual Fifty State Survey (Chicago: National Committee to Prevent Child Abuse, 1998); H. Amaro, et al.,
"Violence During Pregnancy and Substance Abuse," American Journal of Public Health, vol. 80 (1990): 575-579.
4.
Henshaw and Kost, "Parental Involvement," 207.
5.
Margie Boule, "An American Tragedy," Sunday Oregonian, Aug. 27, 1989.
6.
American Academy of Pediatrics, Committee on Adolescence, "The Adolescent's Right to Confidential Care When
Considering Abortion," Pediatrics, vol. 97, no. 5 (May 1996): 748.
7.
Henshaw and Kost, "Parental Involvement," 207.
8.
American Medical Association, Council on Ethical and Judicial Affairs, "Mandatory Parental Consent to
Abortion," Journal of the American Medical Association, vol. 269, no. 1 (Jan. 6, 1993): 83.
9.
Rochelle Sharpe, "Abortion Law: Fatal Effect?" Gannett News Service, Nov. 27, 1989; CBS, "60 Minutes," Feb.
24, 1991 (videotape on file with NARAL).
10.
American Medical Association, "Induced Termination of Pregnancy Before and After Roe V. Wade, Trends in the
Mortality and Morbidity of Women," JAMA, vol. 268, no. 22 (Dec. 1992): 3238.
11.
Willard Cates, Jr. and David Grimes, "Morbidity and Mortality of Abortion in the United States," Abortion and
Sterilization, Jane Hodgson, ed. (New York: Grune and Stratton, 1981), 158; Rachel Benson Gold, Abortion and
Women's Health: A Turning Point for America? (New York: Alan Guttmacher Institute, 1990), 29-30.
12.
Stanley K. Henshaw, "Abortion Incidence and Services in the United States, 1995-1996," Family Planning
Perspectives, vol. 30, no. 6 (Nov./Dec. 1998): 263.
13.
Hodgson V. Minnesota, 648 F. Supp. 756, 761 (D. Minn. 1986).
14.
The NARAL Foundation/NARAL, "Restricting Minors' Access to Abortions," Who Decides? A State-By-
State Review of Abortion and Reproductive Rights, 1999, 8th Edition (Washington, D.C.: The NARAL
Foundation/NARAL, 1999), 252.
15.
Hodgson, 648 F. Supp. at 763-64.
16.
Hodgson, 648 F. Supp. at 763.
17.
Charlotte Ellertson, "Mandatory Parental Involvement in Minors' Abortions: Effects of the Laws in
Minnesota, Missouri, and Indiana," American Journal of Public Health, vol 87, no. 8 (Aug. 1997): 1371-
72; Virginia G. Cartoof and Lorraine V. Klerman, "Parental Consent for Abortion: Impact of the Massachusetts
Law," American Journal of Public Health, vol. 76, no. 4 (April 1986): 397-400.
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 6
18.
Tamar Lewin, "Parental Consent to Abortion: How Enforcement Can Vary," New York Times, May 28, 1992, A1.
19.
Memphis Planned Parenthood V. Sundquist, No. 3:89-0520, slip op. at 13 (M.D. Tenn. Aug. 26, 1997).
20.
In re Jane Doe 1, 57 Ohio St.3d 135 (1991).
21.
Under Planned Parenthood V. Casey, a restriction that has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking a pre-viability abortion is an unconstitutional undue burden. 505
U.S. 833 (1992).
22.
Colauttiv. Franklin, 439 U.S. 379, 394-97 (1979); Liparota V. United States, 471 U.S. 419, 423-428
(1985).
23.
Casey, 505 U.S. at 879.
24.
Casey, 505 U.S. at 880 (citations omitted).
NATIONAL ABOR TION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 7
NARAL Promoting Reproductive Choices
MYTHS AND FACTS
ABOUT THE "CHILD CUSTODY PROTECTION ACT"
Myth: Enactment of the "Child Custody Protection Act" (CCPA)
would promote healthy family communication and family values.
Fact: Even in states that do not enforce mandatory parental
involvement laws, 61 percent of parents know of their daughters'
pregnancy. For the minority of young women who do not involve a
parent, the law cannot mandate healthy family communication where
it doesn't already exist. Laws do not provide appropriate remedies for
every social problem, such as poor family communications.
For women who cannot speak with their parents about having an
abortion, this bill would endanger family relationships. Many young
women who feel they cannot seek the counsel of their parents turn to
other trusted family members when they face a crisis pregnancy.
Indeed, 93 percent of minors who don't involve a parent are
accompanied by someone to the reproductive health facility. This bill
would criminalize the conduct of a grandmother who helps her
granddaughter in time of need. Aunts and other trusted family
members would face imprisonment if they take a young relative across
state lines without complying with her home state's parental
involvement law. The bill, in sum, would isolate young women from
supportive family members.
Myth: Parents will always be helpful in assisting teenagers facing a
National Abortion
and Reproductive Rights
crisis pregnancy.
Action League
1156 15th Street, NW
Fact: As the Supreme Court has recognized, there are circumstances
Suite 700
that preclude minors from involving their parents when they face crisis
Washington, DC 20005
Phone (202) 973-3000
pregnancies. For some teenagers, the pregnancy may be a result of
Fax (202) 973-3096
incest. as in the case of thirteen-year-old Spring Adams. Spring
10536 Culver Boulevard
Adams was murdered by her father the night before she was scheduled
Suite B
to terminate the pregnancy that had resulted from his criminal acts of
Culver City, CA 90232
Phone (310) 559-9334
incest. Other teenagers may correctly suspect that telling a parent
Fax (310) 204-6942
would trigger abuse. And some young women, like Becky
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Bell, have good relations with their parents, but desire so much to
avoid hurting their parents or losing their parents' esteem that they will take
drastic measures to avoid parental involvement. In Becky Bell's tragic case, she
sought an illegal abortion, which resulted in her death.
Myth: The bill protects minors who cannot tell their parents because minors
can appear before judges and bypass any parental involvement law.
Fact: It is not even clear, as a practical matter, that this bill would permit a
teenager to use a bypass order from her home state in another state, or that it
would permit a doctor to rely on a bypass order from another jurisdiction without
further resort to judicial proceedings.
Moreover, judicial bypass procedures often pose formidable obstacles to young
women facing crisis pregnancies. Some anti-choice judges routinely deny minors'
petitions. Bypass procedures, including their appeals, often delay abortions, thus
increasing the risk and sometimes the cost of the procedure. Moreover, the most
vulnerable teenagers may be too intimidated by the bypass procedure; they might
rather resort to traveling alone or obtaining an illegal abortion than appear
before a judge to discuss intimate matters. Young women's concern about the
confidentiality of bypass proceedings is particularly acute in rural areas. One
young woman discovered that her bypass hearing would be conducted by her
former Sunday school teacher.
To give an example of the inadequacy of bypass procedures: a judge in Toledo,
Ohio denied permission to a 17 ½-year-old woman, an "A" student who planned
to attend college and who testified that she was not financially or emotionally
prepared for motherhood at the same time. The judge stated that the young
woman had "not had enough hard knocks in her life."
Myth: This bill would promote the health of minors because parents know
their teenager's medical history and need to know about an abortion.
Fact: On the contrary, this bill is detrimental to young women's health. First,
legal abortions, particularly early in pregnancy, are very safe. Second,
studies demonstrate that minors are capable of making competent medical
decisions without parental involvement.
Finally, although abortion is very safe, it is still advisable to have someone else
drive a woman home from a surgical abortion. Thus, this bill would jeopardize
the health of young women, who would obtain abortions without help from trusted
adults or friends. More minors might attempt to drive themselves to clinics, or in
desperation, some might resort to illegal abortions.
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 2
Myth: Federal intervention into matters traditionally regulated by the states
is warranted here because young women are being coerced into having
abortions out of state.
Fact: NARAL strongly believes that no one should be coerced when making
reproductive health decisions. One safeguard against coercion is a bedrock
principle of medical ethics and medical malpractice law, informed consent.
Medical personnel must obtain a woman's informed consent before performing
an abortion.
Myth: Existing laws are inadequate in protecting young women from undue
influence of adults.
Fact: Laws protecting young women -- such as prohibitions against kidnaping
and statutory rape -- are already on the books. The one case proponents of this
measure cite, Commonwealth V. Rosa Marie Hartford, is actually being resolved
under existing laws.
The scenarios described by proponents of this legislation -- focusing on coercion
and undue influence -- cover only a very narrow range of the conduct that the
CCPA would actually prohibit. Also swept in by the bill is the vital support
provided by caring family members, friends, and religious counselors who
accompany young women to clinics.
Myth: This bill would ensure that state laws on parental involvement are not
evaded.
Fact: As a factual matter, many young women seek abortions out of state because
they want to go to the closest clinic or to protect their confidentiality -- not to
evade state law. In addition, the CCPA contains no requirement that the person
accompanying the minor have an intent to evade state law; it only requires the
intent to transport a minor to obtain an abortion.
As a legal matter, to our knowledge, the states that have enacted parental
involvement laws have not attempted to ensure that their laws apply to their
citizens outside their home states. This fact undermines the assertions of
proponents of the CCPA, who suggest that Congress would simply be ensuring
enforcement of state parental involvement laws by enacting the CCPA.
Most importantly, if Congress enacts this proposal. the federal government would
infringe upon the rights and expectations of Americans that they may avail
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 3
themselves of services offered in various states. Enacting this law would be akin
to telling citizens in a dry state that if they traveled over state lines for a beer,
they could be prosecuted. It would resemble federal criminalization of gambling
vacations to Las Vegas or Atlantic City for citizens of states that prohibit
gambling. Enacting the CCPA is as unimaginable and un-American as telling
citizens of states that prohibit the discharge of firearms that they can't go on
hunting trips or go target practicing in states that allow such activities.
Myth: Enacting this bill would be a routine exercise of Congressional
commerce clause jurisdiction.
Fact: The CCPA is hardly routine business. Congress would take a dramatic
and perhaps unprecedented step if it criminalizes interstate travel for a lawful --
even constitutionally protected -- purpose. Congress has previously prohibited
the interstate transport of fugitive felons and prostitutes. Transporting a
vulnerable minor seeking an abortion who cannot involve her parents in her
decision is wholly dissimilar to previous exercises of Congressional authority.
Sept. 1998
NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE
PAGE 4
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P.01/03
U.U. vipa vs
Office of Legislative Affairs
/
Office of the Assistant Attorney General
Washington, D.C. 20530
FAX COVER SHEET
DATE: 6/15/99
TO:
Jenny Luray
PHONE NO.
FAX NO.
456-7311
FROM:
PATTY FIRST
PHONE NO.:
202/514-4810
FAX NO.
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NO. OF PAGES:
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COMMENTS:
Here's what we Sent.
The
Committee did not get to the bill.
JUN-15-1999 13:57
P.02/03
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington. D.C. 20530
June 15, 1999
The Honorable Henry Hyde
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Chairman Hyde:
We understand the Committee on the Judiciary is marking up H.R. 1218, "The Child
Custody Protection Act of 1999". The Administration's position on this bill is contained in the
Statement of Administration Position of July 14, 1998 (copy enclosed).
Sincerely,
JonP. Jamp
Jon P. Jennings
Acting Assistant Attorney General
JUN-15-1999 13:57
P.03/03
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
THE
WASHINGTON, D.C. 20003
July 14, 1998
(House)
STATEMENT OF ADMINISTRATION POLICY
(THIS STATEMENT HAS BEEN COORDINATED BY OMB WITH THE CONCERNED AGENCIES.)
HR 3682 - Child Custody Protection Act
(Rep. Ros-Lehtinea (R) FL and 136 others)
The Administration strongly opposes enactment of HR 3682 in its current form If a bill is
presented to the President that fails to address the concerns that are described below. the
President's senior advisers would recommend that he veto in
As stated in recent letters from White House Chief-of-Staff Erskine Bowles to the House and
Senate Committees on the Judiciary, the Administration would support properly crafted
legislation that would make it illegal to transport minors across state lines for-the purpose of
avoiding parental involvement requirements. Unfortunately, HR 3682 as reported by the
House Committee on the Judiciary, fails to address a number of the critical concerns raised by
the Administration. Specifically, the bill must be amended to:
- Exclude close family members from criminal and civil liability. Under the legislation.
grandmothers, aunts, and minor and adult siblings could face criminal prosecution for
coming to the aid of a relative in distress.
- Ensure that persons who only provide information. counseling, referral, or medical
services to the minor cannot be subject to liability.
- Address constitutional and other legal infirmities that the Department of Justice has
identified in particular provisions of the legislation. These concerns were transmitted to
the House Committee on the Judiciary on June 24, 1998.
The Administration is concerned that HR 3682 raises important federalism issues, including the
rights of States to regulate matters within their own boundaries. The Administration believes,
however, that legislation that addresses the concerns noted above, and that is carefully targeted ar
punishing non-relatives who transport minors across State lines for the purpose of avoiding
parental involvement requirements, would mitigate the federalism and the Administration's other
concerns.
Pay-As-You-Go Scoring
HR 3682 could affect both direct spending and receipts; therefore, it is subject to the pay-as-
you-go requirement of the Omnibus Budget Reconciliation Act of 1990. OMB's preliminary
scoring estimate of this bill is zero.
TOTAL P.02
TOTAL P.03
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Total Pages: 14
LRM ID: RJP99
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
Washington, D.C. 20503-0001
Monday, June 14, 1999
LEGISLATIVE REFERRAL MEMORANDUM
URGENT
TO:
Legislative Liaison Officer - See Distribution below
FROM:
panet Janet R. Forsgren R. Forsing (for) Assistant
Director for Legislative Reference
OMB CONTACT:
Robert J. Pellicci
E-Mail: [email protected].
PHONE: (202)395-4871 FAX: (202)395-6148
SUBJECT:
JUSTICE Report on HR1218 Child Custody Protection Act
DEADLINE:
5:30 p.m. Monday, June 14, 1999
In accordance with OMB Circular A-19, OMB requests the views of your agency on the above subject
before advising on its relationship to the program of the President. Please advise us If this item will
affect direct spending or receipts for purposes of the "Pay-As-You-Go" provisions of Title XIII of
the Omnibus Budget Reconciliation Act of 1990.
COMMENTS: House Judiciary Committee markup Is scheduled for tomorrow morning, June 15th.
DEADLINE IS FIRM.
DISTRIBUTION LIST
AGENCIES:
52-HEALTH & HUMAN SERVICES - Sondra S. Wallace - (202) 690-7760
EOP:
KAGAN_E
Sylvia M. Mathews
Adrienne C. Erbach
Daniel N. Mendelson
Sarah Wilson
Nicole R. Rabner
Jennifer M. Luray
David J. Haun
John E. Thompson
Barry T. Clendenin
Caroline B. Davis
Janet R. Forsgren
James J. Jukes
Sandra Yamin
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LRM ID: RJP99 SUBJECT: JUSTICE Report on HR1218 Child Custody Protection Act
RESPONSE TO
LEGISLATIVE REFERRAL
MEMORANDUM
If your response to this request for views Is short (e.g., concur/no comment), we prefer that you respond by
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Please Include the LRM number shown above, and the subject shown below.
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JUN-14-1999 17:01
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202 395 6148
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U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Henry Hyde
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
We understand the Committee on the Judiciary is marking up H.R. 1218, "The Child
Custody Protection Act of 1999". For the reasons stated in our letter to you of June 24, 1998
(copy enclosed) on H.R. 3682. an almost identical bill, we oppose the enactment of this
legislation as drafted.
Sincerely,
Jon P. Jennings
Acting Assistant Attorney General
JUN-14-1999 17:01
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202 395 6148 P.04/14
Office of Legislative Affairs
Office of the Audition Anorney General
Richington, ac 20530
June 24, 1998
The Honorable Henry J. Hyde
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
As was stated in the June 17, 1998 letter from White House Chief of Staff Erskine
Bowles, the Administration would support properly crafted legislation that would make it
illegal to transport minors across state lines for the purpose of avoiding parental
involvement requirements. The Administration appreciates the concerns of the sponsors
of H.R. 3682. the "Child Custody Protection Act," about fostering parental and family
involvement in a minor's decision to obtain an abortion and their concerns about
preventing overbearing and sometimes predatory adults from improperly influencing
minors to choose an abortion.
This letter provides the views of the Department of Justice concerning H.R. 3682,
as marked up by the Subcommittee on the Constitution of the Committee on the
Judiciary on June 11, 1998. Although, in our view, the bill's civil and criminal provisions,
as drafted, are overbroad and raise serious constitutional, legal, and law enforcement
concerns, we believe that legislation could be crafted that would appropriately target non-
relatives who transport minors across state lines for the purpose of avoiding parental
involvement requirements.
L OPERATION OF H.R. 3682
H.R. 3682 would establish a new criminal prohibition to be codified as 18 U.S.C.
§ 2401(a). Proposed § 2401(a) would read as follows:
Except as provided in subsection (b), whoever knowingly transports an
individual who has not attained the age of 18 years across a State line, with
the intent such individual obtain an abortion, if in fact the requirements of
a law, requiring parental involvement in a minor's abortion decision, in the
State where the individual resides, are not met before the individual obtains
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the abortion, shall be fined under this title or imprisoned not more than
one year, or both. 1
The restriction on interstate transport would be triggered if the law in the state
where the minor resides would impose some sort of parental notice or consent
prerequisite before that minor could obtain an abortion in the state of her residence.²
As we construe the provision, it appears that it would be a federal crime to transport a
minor across state lines for an out-of-state abortion if the statutory prerequisites that
would have been applicable if the abortion had been performed in the minor's home
state had not previously been satisfied. Proposed $ 2401(s) in this way would restrict the
ability of minors to obtain out-of-state abortions, even where their home states would not
1 The referenced exception in proposed & 2401(b) would provide that Tt]be prohibition of subsection
(a) does not apply if the abortion was necessary to save the life of the minor because her life was
codangered by a physical disorder, physical injury, or physical illness, including a life endangering physical
condition caused by or arising from the prognancy itself"
Subsection (d)(1) would define the operative phrase "a law requiring parental involvement in a
minor's abortion decision" as:
a law-
(A) requiring before an abortion is performed on a minor, eithes-
(i) the notification to, or consent of, a parent of that minor, or
(ii) proceedings in a State court; and
-
(B) that does not provide as an alternative to the requirements described in subparagraph
(A) notification to or consent of any person or entity who is not described in that
subparagraph.
Subsection (d)(2) would define "parent" as someone who is designated by the law requiring
parental involvement in the minor's abortion decision as a person to whom notification, or from whom
consent, is required," and who also in "(A) a parent ar guardian; (B) a legal custodian; or (C) a person
resides." standing in loco parentis who has care and control of the minor, and with whom the minor regularly
Subsection (d)(3) would define a "minor" as "an individual who is not older than the maximum age
involvement in a minor's abortion decision."
requiring parental notification or consent, or proceedings in a State court, under the law requiring parental
2
In section III, below, we discuss the constitutional requirements for such a state notice or consent
regime.
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seek to impose such restrictions on out-of-state abortions.
Violation of § 2401(a) would be punishable by fine and by up to one year in
prison, making it a Class A misdemeanor. See 18 U.S.C. § 3559(a)(6) (1994). In
addition, H.R. 3682 would create 8 civil cause of action: proposed 18. .U.S.C. § 2401(c)
would provide that "[a]ny parent or guardian who suffers legal harm from a violation of
subsection (a) may obtain appropriate relief in a civil action."
II. CONCERNS REGARDING THE SCOPE.OF CIVIL AND CRIMINAL LIABILITY
As was stated in White House Chief of Staff Erskine Bowles's letter, H.R. 3682
must be amended to exclude close family members from civil and criminal liability. The
defendant in many potential prosecutions under proposed & 2401(a), or in a civil action
under $ 2401(c), could well be a member of the minor's own family. Imposing criminal
and civil sanctions on family members, requiring family members to testify against each
other, and raising the prospect of lawsuits by one family member against another could
undercut, rather than encourage. family cohesion. Moreover, family members are not
likely to fit the paradigm scenario of adults acting with disregard of the minor's best
interests. In addition, the prospect of criminal or civil action against family members
would discourage a minor from seeking the advice and counsel of those closest to her.
We therefore recommend that H.R. 3682 incorporate an exception for family members
who transport the minor.
Chief of Staff Bowles's letter also stated that H.R. 3682 must be amended to
ensure that persons who provide information, counseling. or referral or medical services
to the minor are not subject to liability. Exposing such persons to the threat of criminal
or civil sanctions would not further the interest of promoting family communication and
would not deter those who inappropriately transport minors across state lines to obtain
abortions. The threat of accessory liability against such persons, moreover, would likely
impair the ability of physicians, clergy, counselors, and their staffs to care for and counsel
both minors and adults. The bill also could provide an unintended basis for vexatious
litigation against individuals and organizations, and could allow private citizens suing
under the extraordinarily open-ended civil liability provision of the statute to
inappropriately invade the privacy of patients.
3
There is a significant question whether and to what exient the Constitution would CVCO permit states
to impose their abortion laws catraterritorially with respect to their citizens' out-of-state abortions See
Bigelow V. Virginia, 421 U.S. 809, 822-24 (1975); Sech F. Kreinser, The Law of Choice and Choice of Law.
Abortion, the Right to Travel and Extraterritorial Regulation in American Federalism. 67 N.Y.U. L. Rov.
451 (1992).
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To address the risk of civil or criminal liability for persons who provide
information, counseling, or referral or medical services, we would propose adding a
provision with language along the following lines:
This section shall not give rise to liability of any person or entity based
upon provision of information, advertising, counseling, provision of medical
services, or referral for medical services.
IIL CONSTITUTIONAL AND OTHER LEGAL CONCERNS
A. Constitutional Principles Governing Parental Notification and Consent Laws
The Supreme Court has held that pregnant minors have a constitutional right to
choose whether to terminate a pregnancy. Planned Parenthood Y. Danforth 428 U.S. 52,
74 (1976). The Court further has held, however, that a State may require parental notice
or consent under certain circumstances as a prerequisite to a minor's abortion See
Hodgson, 497 U.S. at 436-37 & n.22 (collecting cases). Nevertheless, although a state has
"somewhat broader authority to regulate the activities of children than of adults,"
Danforth, 428 U.S. at 74,
[t]he abortion decision differs in important ways from other decisions that
may be made during minority. The need to preserve the constitutional
right and the unique nature of the abortion decision, especially when made
by a minor, require a State to act with particular sensitivity when it
legislates to foster parental involvement in this matter.
Bellotti V. Baird, 443 U.S. 622, 642 (1979) (plurality opinion) ("Bellotti Accordingly,
restrictions on the availability of such abortions - such as parental notice or consent
requirements - are impermissible if they "do[] not reasonably further any legitimate state
interest." Hodgson V. Minnesota, 497 U.S. 417, 450 (1990); see also Bellotti V, Baird,
428 U.S. 132, 147 (1976) ("Bellomi I").
In accord with these principles, states may require parental involvement in a
minor's decision whether to obtain an abortion, but only in a manner that serves to
ensure that the minor's decision is, in fact, informed: to assure, that is, "that the minor's
decision to terminate her pregnancy is knowing, intelligent, and deliberate." Hodeson,
497 U.S. at 450; accord Planned Parenthood V, Casey, 505 U.S. 833, 877 (1992) (opinion
of O'Connor, Kennedy, and Souter, JJ.) (TT]he means chosen by the State to further the
4
Given I 2401(c)'s open-eadedness and broad potential for unintended abuse, we recommend
eliminating the provision from the bill or, in the alternative, limiting the provision to suits against persons
who have been convicted under the criminal llability provision of § 2401(a).
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interest in potential life must be calculated to inform the woman's free choice, not hinder
it."). 5 The Court has reasoned that parental notice and consent requirements can be
constitutional because of the "quite reasonable assumption that minors will benefit from
consultation with their parents." Casey. 505 U.S. at 895.
A State that requires parental notification or consent may do so in a constitutional
manner if it provides a "bypass" mechanism that allows the minor to bypass the notice or
consent requirement if she establishes either (i) that she is sufficiently mature and well-
informed to make the abortion decision independently or (ii) that an abortion without
parental notice or consent would be in her best interests. The bypass procedure also
must be expeditious and must ensure the minor's anonymity.6
B. Constitutional Problems Raised by H.R. 3682
For some minors, out-of-state abortions might be significantly safer or otherwise
medically indicated. For others, the closest facilities will be out of state. Yet it appears
that proposed § 2401(a) would require - in order for the criminal prohibition not to
apply - that a minor satisfy the requirements of her home state's parental involvement
law, even when the requirements of that law would not apply to out-of-state abortions.
As a result of this unique feature, proposed § 2401(a) would appear to be
unconstitutional in two respects.
First, proposed $ 2401(a) would appear to be unconstitutional as applied to a
minor seeking an out-of-state abortion, where the law of the state in which the minor
resides lacks a constitutionally sufficient mechanism for satisfying that state's notice or
consent requirements when an abortion is to be performed out of state. In such cases,
s All citations to Casey herein are to the joint opinion of Justices O'Connor, Kennedy, and Souter.
6 The Court has held that such a bypass mechanism is required with respect to parental consent
statutes. See Bellotti IL 443 U.S. at 643-44 (plurality opinion); id. at 655-56 (Stevens, J., concurring in the
judgment); Lambert Y Wicklund, 520 U.S. 292, 117 S. a 1169, 1171-72 (1997) (per curiam); see also
Ohio y. Akron Ctr. for Reproductive Health. 497 U.S. 502, 511-13 (1990). The Court also has held that
such a bypass mechanism is required with respect to a two-parent notification statute. See Hoderon. 497
U.S. at 450-55; id. at 461 (O'Connor, Jn concurring in the judgment); Id, at 481 (Kennedy, J,, concurring
in the judgment in part and dissenting in part). The Supreme Court has not decided whether a bypass
procedure is mandatory if the statute requires notification of only one parent (rather than notification of
both parents or parental consent). See Lambert. 117 S. a at 1171; Akron Ctr. for Reproductive Health,
497 U.S. at 510. However, the only appellate courts to have decided the issue have held that such bypass
mechanisms are necessary in one-parent notification states. See Planned Parenthood, Sioux Falls Clinic V,
Miller. 63 F.3d 1452, 1458-60 (8th Cir. 1995), cert. denied, 517.U.S. 1174 (1996); COUSEWEY Med. Suite y,
leyoub. 109 F3d 1096 (Sth (ir.), cart. denied 118 S. Ct. 357 (1997). But cf. Planned Parenthood y
Camblos, 116 F3d 707, 715-16 (Luttig, Circuit Judge, granting motion for stay of district court judgment
pending appeal) (questioning whether five Justices on current Supreme Court would conclude that bypass
procedures are constitutionally necessary in a one-parent notification setting), motion to vacate stay
denied. 125 F3d 884 (4th Cir. 1997).
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the provision would have the effect of deterring or preventing minors (particularly those
who cannot drive) from obtaining out-of-state abortions even when, for example, a
minor's parents in a "parental consent" state would have provided consent, or the minor
would have been able to obtain a judicial bypass, had mechanisms for manifesting such
consent or obtaining such a bypass for an out-of-state abortion been available. For
example, the law of the minor's home state might not provide any means of obtaining a
judicially authorized bypass in the case of an abortion to be performed out of state: The
law of the state of residence might authorize state judges to provide a bypass from the
state notice or consent requirements that otherwise apply, but not authorize such judges
to entertain a request for a bypass for an out-of-state abortion as to which state law
requirements would be inapplicable. In such cases, state judges might simply lack
jurisdiction under state law to provide a legal bypass for an abortion to be performed out
of state.
Where the requirements of the state of residence could not be met for an out-of-
state abortion, it would appear that proposed & 2401(a) - unlike constitutionally
permissible parental consent or notification laws - could not be justified as a legitimate
means of supporting "the authority of a parent who is presumed to act in the minor's
best interest
and thereby assures that the minor's decision to terminate her
pregnancy is knowing, intelligent, and deliberate." Hodgson, 497 U.S. at 450. As in
Hodgson, the restriction would not appear to "reasonably further any legitimate
[government] interest." Id
7
In Montana, for example, the legal prerequisite for Initiation of a youth-court bypass procedure is a
"petition" by the minor "for 4 waiver of the notice requirement." Mont. Code Ann. & 50-20-212(2)(a)
(1997). The "nodice requirement," in turn, is imposed upon the "physician" who is to perform the abortion
(who may, however, rely upon notice given by the "referring physician"). Id, $ 50-20-204 (1997). And
"physician," in turn, is defined to mean "a person licensed to practice medicine under [Montana law).' Id.
$ 50-20-203 (1997). Therefore, in the case of an out-of-state abortion, there would appear to be no basis
for a Montana state judge to entertain a request for a "walver" of the requirement.
Proposed 1 2401(a) also would give rise to constitutional concerns where the specified procedure for
manifesting parental notice or consent, as opposed to the judicial bypass, would not be effective for out-of-
state abortions. If, for example, the parental consent portion of the home state's law is directed at state-
licensed physicians, it would appear to be satisfied only when the patient provides proof of consent to one
of those physicians, See as S.C. Code Ana H 44-41-10, 44-41-31 (Law. Co-op 1985 and Supp. 1997)
(defining "physician" as "a person licensed to practice medicine in this State" and providing that the
attending or referring "physician" may perform an abortion on an unemancipated minor only after
'secur(ing) the informed written consent, signed and witnessed," of a parent, legal guardian, grandparent,
or a person who has been standing in loco parentis for at least 60 days). It therefore would not be at all
clear how a minor seeking an out-of-state abortion could satisfy even the consent portion of such a home-
state law in a manner that would permit a "transporter" of that minor to avoid criminal liability under
proposed § 2401(a).
6
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In Hodgson, the Court held that a two-parent notification requirement without a
bypass mechanism would fail to serve "any state interest with respect to functioning
families" that would not have been served by & requirement of one-parent notification
with a bypass option Id at 450. The Court explained that the state's interest in
ensuring that the minor's decision would be knowing, intelligent, and deliberate "would
be fully served by a requirement that the minor notify one parent who can then seek the
counsel of bis or her mate or any other party, when such advice and support is deemed
necessary to help the child make a difficult decision" Id Similarly, it would appear that
proposed § 2401(a) would be unconstitutional in states where there is no constitutionally
adequate provision for securing consent or notice, and bypass, for out-of-state abortions.
With respect to minors residing in such states for whom an abortion out of state might be
safer, less expensive, or otherwise more accessible than an in-state abortion, proposed $
2401(a) would not "reasonably further any legitimate [government] interest," id. (emphasis
added), at least insofar as the absence of available notice (or consent) and bypass
mechanisms for out-of-state abortions under either federal or state law would preclude
such minors from obtaining adult assistance in traveling interstate for abortions. In
circumstances where no mechanism existed that would enable a minor seeking an out-of-
state abortion to demonstrate that she had complied with the parental involvement
requirements of her home state, proposed § 2401(a) could inhibit interstate travel for
abortions even though such travel would have resulted from a knowing, intelligent, and
deliberate choice of the minor.
Second, the provision would appear to operate unconstitutionally in many of the
cases where both the minor's state of residence and the state in which the minor seeks to
have the abortion performed have parental consent or notification laws. By the law of
the state in which the abortion will be performed. the minor already will be required to
satisfy certain parental involvement prerequisites. If proposed $ 2401(a) were construed
to require satisfaction of the parental involvement requirements of the minor's state or
residence as well, then in many cases the federal statute would, in effect, require a minor
who would need or want assistance in crossing state lines to satisfy parallel parental
consent or notification laws in both the state of residence and the state in which she
seeks the abortion Such duplication would seem to serve little or no legitimate
governmental interest, just as the requirement of the second 8 parent's notification without
an opportunity for bypass failed to do so in Hodeson.
8 In light of both of the types of constitutional infirmities discussed above, the statute might be facially
Invalid (Le., inoperative nationwide) if, in 'a large fraction of the cases in which [proposed 1 2401(a)] is
relevant," Casey, 505 U.S. at 895, the criminal prohibition effectively would preciude minors from
obraining adult assistance in traveling internate for abortions. a id (holding provision to be "invalid" as
an "undue burden" because "in a large fraction of the cases in which [the provision] is relevant, it will
operate as a substantial obstacle to a woman's choice to undergo an abortion"); see also Fargo Women's
Health One Y. Schafer, 507 U.S. 1013, 1014 (1993) (O'Connor, J., concurring in denial of stay); Janklow
Planned Parenthood Sioux Falls Clinic 517 U.S. 1174, 1175-76 (1996) (opinion of Stevens, 1, respecting
the denial of cert.). The Casey standard for facial invalidity was developed in the context of state-law
abortion restrictions. It is uncertain how that standard would be applied or modified in light of 8 facial
7
202 395 6148 P.11/14
JUN-14-1999 17:03
OMB/LRD/LWP
The constitutional infirmities identified above could appropriately be alleviated (1)
by creating an exemption for travel from states that have not established &
constitutionally sufficient consent/notice and bypass mechanism for out-of-state abortions,
and (2) by making clear that the probibition effected by ! 2401(a) would not apply in
cases where the state in which the abortion is performed requires parental notice or
consent.
C.
Mens Rea
Proposed $ 2401(a) should be revised to require that an individual must have
"willfully violated" the federal statute to be subject to liability. In other words, individuals
should be subject to criminal sanction only if they know that they are acting unlawfully.
Congress has used a willfulness standard in criminal statutes in a range of contexts. See.
eug. Bryan V. United States, No. 96-8422, slip op. at 10, (U.S. June 15, 1998) (sale of
firearms without a license); Ratzlaf y. United States, 510 U.S. 135 (1994) (currency
transactions in violation of reporting requirements): Check V. United States, 498 U.S.
192, 193-94 (1991) (felony and misdemeanor tax statutes).
Congress has opted for willfulness where there is a high likelihood of defendants
reasonably believing that they are acting lawfully. See Bryan, slip op. at 10. Many of the
people a minor will likely turn to for help - people such as her grandmother, her aunt,
her sibling (who also may be a minor), her religious counselor, her teenaged best friend -
- will often be people with little or no experience with abortion or knowledge of the
relevant law, let alone its finer points. Seeking to aid her, they might well engage in
conduct they reasonably believe to be lawful - driving a minor who is a granddaughter, a
niece, a parishioner, or a friend across state lines to a place where she can legally have
an abortion. In such circumstances, they would completely unwittingly violate a federal
criminal law and expose themselves to criminal and civil sanction.
In addition, Congress has employed a willfulness standard where the criminal
statute incorporates complex elements. Criminal liability under 2401(a) would turn in
large part on whether the state of residence's statutory requirements concerning parental
consent, notification and judicial bypass when a minor seeks an abortion had been
satisfied. The federal provision would give these state statutes an extraterritorial effect
that even an individual aware of all requirements of his own state's abortion laws would
not be able to discern from those laws. In addition, it might well require considerable
legal sophistication to determine the meaning of the home state's statutes in this new
federal context. Finally, as previously noted, it is novel to tie federal criminal liability to
conduct that is lawful in the state in which it occurs.
challenge to A congressional enactment such as HR 3682.
. 8 -
JUN-14-1999 17:04
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202 395 6148
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To avoid these problems, the proposed statute should be revised to require a
"willful" violation to create liability. Thus revised, those who are acting to help the minor
and are unaware of the statutory regime will not be subject to prosecution.
D. Federalism Concerns
H.R. 3682 raises novel and important federalism issues. First, H.R. 3682 would
broadly undermine the ability of a state to vindicate its own policy determinations within
its own borders. The thrust of the proposed bill would be to use the federal criminal and
civil law to trump the policy determinations of those states that have opted not to
implement a parental involvement requirement In this respect, H.R. 3682 is unlike
federal statutes that supplement already existing state criminal prohibitions in areas of
particular federal interest by making it a crime to engage in interstate transport or
commerce for the purpose of carrying out proscribed conduct in a neighboring state. In
such circumstances, the federal criminal Law does not undermine the policy judgments of
the state in which the ultimate conduct occurs. In contrast, the proposed bill would
make unlawful travel for the purpose of engaging in conduct that is lawful in the state in
which it occurs.
Second, by extending the reach of one state's policy choice into neighboring states,
H.R. 3682 may have an impact well beyond what that state originally intended in
enacting its parental consent or notice law. It may well be that when a state decides that
no abortions should occur in its boundaries without parental notification or consent, it
nonetheless defers to the sovereignty of sister states as to conduct occurring in those
neighboring states, and recognizes that citizens of the various states - including its own
citizens - should be entitled to take advantage of the diversity of norms of conduct
throughout the nation. The home state, in other words, may have no desire for its
internal policy choice to serve as the trigger for a federal criminal penalty against out-of-
state conduct. If so, then under H.R. 3682, that state's decision as to conduct within its
territorial borders would, in effect, be given extraterritorial reach that the state itself did
not intend it to have.
IV. PRACTICAL ENFORCEMENT PROBLEMS
Enforcement of proposed § 2401(a) would present a myriad of serious
enforcement problems. Compared with violations of other federal criminal statutes,
violations of proposed § 2401(a) would be notably difficult to investigate and to
prosecute, and would involve significant, and largely unnecessary, outlays of federal
resources.
First, for reasons discussed in section Ш-С, supra, we strongly recommend that
proposed § 2401(a) be amended to expressly require proof that 8 defendant "willfully
violated" the federal statute. In addition, it is not clear what constitutes "transport" under
- 9 -
JUN-14-1999 17:04
OMB/LRD/LWP
202 395 6148 P.13/14
the statute. Often a transport requirement can be satisfied by a showing that the
defendant caused the act to happen - for example, by providing bus fare - as opposed
to actually having accompanied the minor.
Second, investigations and prosecutions under proposed § 2401(a) will impose a
particular burden on federal authorities. Interjurisdictional crimes are inherently more
difficult to investigate and generally require the deployment of specially constituted task
forces. H.R. 3682 would pose special problems because it would criminalize travel for
the purpose of facilitating behavior that is lawful in the state where it is undertaken. As
a consequence, it would be difficult for local law enforcement to work in tandem with
federal authorities because there is no local crime over which they would have
jurisdiction.
The detection and investigation of violations of HR 3682 would fall entirely to
the FBI - in stark contrast to the investigation of analogous federal crimes, in which
local law enforcement begins investigating a crime and calls in the FBI if it looks as if
there is a federal element. Here, the ultimate conduct will not be a crime in the state in
which it occurs, and will not have occurred in the home state with the parental consent
or notice laws. (By contrast, under a statute such as the Violence Against Women Act,
an assault would be subject to investigation and prosecution by state authorities.) This
will place a great burden on the FBI. Reliance on complaints from private citizens poses
its own prospect of taxing law enforcement resources: Given the bill's subject matter,
there is the distinct possibility that the FBI would be required to evaluate unusually high
numbers of complaints.
Third, the principal targets of proposed § 2401(a) are likely to be adult and
teenage relatives and friends of young women seeking abortions. Such defendants would
be highly sympathetic, and thus relatively difficult to investigate and to convict Their
prosecutions would also raise legitimate questions of fair use of federal power and give
rise to charges of federal overreaching. Relatedly, a relatively high percentage of the
putative defendants under this statute may be minors, which raises special concerns in
the federal system.
Fourth, the proof of the critical elements in these cases generally will have to
come through either the defendant or the minor, both of whom would be extraordinarily
problematic witnesses. To prove that the defendant had the requisite intent, the
government in the run of cases would have to rely on either the minor or the defendant
(who would of course have a constitutional right not to testify). Given that the minor
will, in many if not most cases, have relied on the aid of the defendant, who may be her
boyfriend, aunt, grandmother, sister, best friend, etc., she is likely to be a hostile and
uncooperative witness. (Moreover, the trauma of being forced to participate in an
investigation and trial will add to any trauma she already may have suffered.) This is in
contrast to most other crimes, in which there is a victim who can provide testimony for
the prosecution.
- 10
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202 395 6148 P.14/14
Fifth, state privacy laws concerning medical records and the existence of certain
state privileges will slow the investigation of these crimes. Enforcing subpoenas against
the backdrop of such state laws can take tremendous time and effort and provoke
tension between the state and federal systems. It also would run the risk, as would many
of the investigative and prosecutorial steps that statute would require, of making the
federal government appear overzealous and heavyhanded.⁹
Sixth, the investigative and prosecutorial challenges, and the substantial outlay of
federal resources, that $ 2401(a) would entail are unnecessary to address important
policy concerns animating the bill The states have a number of effective legal tools -
including laws against battery, kidnapping, and false imprisonment, and custody laws - to
prevent and punish the abduction or mistreatment of minors. 10 The existence of such
state tools makes it more difficult to justify the significant outlay of federal resources that
H.R. 3682 would require. Moreover, relying on state-law tools would ensure that federal
law would not inadvertently encourage young women to seek unsafe means - for
example, hitchhiking or traveling alone- of availing themselves of lawful out-of-state
procedures. Such results are particularly likely in this context because the federal law
would not make the minors' conduct unlawful and would only limit the persons who may
assist them in engaging in travel for the purpose of obtaining lawful medical procedures.
Thank you for the opportunity to comment on this important matter. If we may
be of additional assistance, please do not hesitate to contact us. The Office of
Management and Budget has advised that there is no objection from the standpoint of
the Administration's program to the presentation of this report.
Sincerely,
L Anthony Sutin
Acting Assistant Attorney General
9
A similar problem arises in the context of a civil action under the statute. Such an action would
likely involve discovery requests for medical information. Those requests would be likely to conflict with
state privacy and privilege laws concerning doctor-patient or counselor-clicat communications and medical
records. The consequence will be either an unwelcome struggle between state and federal interests or an
effective preemption of state privacy law (with the strain on federalism interests that entails).
10 Thus, for example, in the much-cited case in which the mother of a 13-year-old girl alleged that her
daughter had been raped by an 18-year-old and taken by the boy's mother to another state for an abortion,
the 18-year-old pleaded guilty to two counts of statutory rape, and his mother was convicted of violating
Pennsylvania's interferance-with-tbo-custody-of-children statute. The case against the mother was
remanded for a new trial, however, due to an error in jury instruction.
- 11 -
TOTAL P.14,
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
July 14, 1998
(House)
STATEMENT OF ADMINISTRATION POLICY
(THIS STATEMENT HAS BEEN COORDINATED BY OMB WITH THE CONCERNED AGENCIES.)
H.R. 3682 - Child Custody Protection Act
(Rep. Ros-Lehtinen (R) FL and 136 others)
The Administration strongly opposes enactment of HR 3682 in its current form. If a bill is
presented to the President that fails to address the concerns that are described below, the
President's senior advisers would recommend that he veto it.
As stated in recent letters from White House Chief-of-Staff Erskine Bowles to the House and
Senate Committees on the Judiciary, the Administration would support properly crafted
legislation that would make it illegal to transport minors across state lines for the purpose of
avoiding parental involvement requirements. Unfortunately, H.R. 3682, as reported by the
House Committee on the Judiciary, fails to address a number of the critical concerns raised by
the Administration Specifically, the bill must be amended to:
- Exclude close family members from criminal and civil liability. Under the legislation,
grandmothers, aunts, and minor and adult siblings could face criminal prosecution for
coming to the aid of a relative in distress.
Ensure that persons who only provide information, counseling, referral, or medical
services to the minor cannot be subject to liability.
- Address constitutional and other legal infirmities that the Department of Justice has
identified in particular provisions of the legislation. These concerns were transmitted to
the House Committee on the Judiciary on June 24, 1998.
The Administration is concerned that H.R. 3682 raises important federalism issues, including the
rights of States to regulate matters within their own boundaries. The Administration believes,
however, that legislation that addresses the concerns noted above, and that is carefully targeted at
punishing non-relatives who transport minors across State lines for the purpose of avoiding
parental involvement requirements, would mitigate the federalism and the Administration's other
concerns.
Pay-As-You-Go Scoring
H.R. 3682 could affect both direct spending and receipts; therefore, it is subject to the pay-as-
you-go requirement of the Omnibus Budget Reconciliation Act of 1990. QMB s-preliminary
scoring estimate of this bill is zero.
JUN-14-1999 16:32
P.01/30
U.S. Department of Justice
-
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
FAX COVER SHEET
DATE: 6/14/99
TO:
Jennifer Luray
PHONE NO.
456-7300
FAX NO.
456-7311
FROM:
PATTY FIRST
PHONE NO.:
202/514-4810
FAX NO.
202/514-9149
NO. OF PAGES: a bunch (EXCLUDING COVER)
COMMENTS:
I just noticed that last years
SAP says we "strongly oppose:
An argument in our favor!!
JUN-14-1999 16:32
P.02/30
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Henry Hyde
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
We understand the Committee on the Judiciary is marking up H.R. 1218, "The Child
Custody Protection Act of 1999". For the reasons stated in our letter to you of June 24, 1998
(copy enclosed) on H.R. 3682, an almost identical bill, we oppose the enactment of this
legislation as drafted.
Sincerely,
Jon P. Jennings
Acting Assistant Attorney General
JUN-14-1999 16:32
P.03/30
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Anorney General
Washington, D.C. 20530
June 24, 1998
The Honorable Henry J. Hyde
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
As was stated in the June 17, 1998 letter from White House Chief of Staff Erskine
Bowles, the Administration would support properly crafted legislation that would make it
illegal to transport minors across state lines for the purpose of avoiding parental
involvement requirements. The Administration appreciates the concerns of the sponsors
of H.R. 3682, the "Child Custody Protection Act," about fostering parental and family
involvement in a minor's decision to obtain an abortion and their concerns about
preventing overbearing and sometimes predatory adults from improperly influencing
minors to choose an abortion.
This letter provides the views of the Department of Justice concerning H.R. 3682,
as marked up by the Subcommittee on the Constitution of the Committee on the
Judiciary on June 11, 1998. Although, in our view, the bill's civil and criminal provisions,
as drafted, are overbroad and raise serious constitutional, legal, and law enforcement
concerns, we believe that legislation could be crafted that would appropriately target non-
relatives who transport minors across state lines for the purpose of avoiding parental
involvement requirements.
I. OPERATION OF H.R. 3682
H.R. 3682 would establish a new criminal prohibition to be codified as 18 U.S.C.
$ 2401(a). Proposed § 2401(a) would read as follows:
Except as provided in subsection (b), whoever knowingly transports an
individual who has not attained the age of 18 years across a State line, with
the intent such individual obtain an abortion, if in fact the requirements of
a law, requiring parental involvement in a minor's abortion decision, in the
State where the individual resides, are not met before the individual obtains
JUN-14-1999 16:32
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the abortion, shall be fined under this title or imprisoned not more than
one year, or both. 1
The restriction on interstate transport would be triggered if the law in the state
where the minor resides would impose some sort of parental notice or consent
prerequisite before that minor could obtain an abortion in the state of her residence. 2
As we construe the provision, it appears that it would be a federal crime to transport a
minor across state lines for an out-of-state abortion if the statutory prerequisites that
would have been applicable if the abortion had been performed in the minor's home
state had not previously been satisfied. Proposed § 2401(a) in this way would restrict the
ability of minors to obtain out-of-state abortions, even where their home states would not
I
The referenced exception in proposed $ 2401(b) would provide that "[t]he 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 cadangering physical
condition caused by or arising from the pregnancy itself."
Subsection (d)(1) would define the operative phrase "a law requiring parental involvement in a
minor's abortion decision" as:
a law-
(A) requiring, before an abortion is performed on a minor, either--
(i) the notification to, or consent of, a parent of that minor; or
(ii) proceedings in a State court; and
(B) that does not provide as an alternative to the requirements described in subparagraph
(A) notification to or consent of any person or catity who is not described in that
subparagraph.
Subsection (d)(2) would define "parent" as someone "who is designated by the law requiring
parental involvement in the minor's abortion decision as a person to whom notification, or from whom
consent, is required," and who also is "(A) a parent or guardian; (B) a legal custodian; or (C) a person
standing in loco parentis who has care and control of the minor, and with whom the minor regularly
resides."
Subsection (d)(3) would define a "minor" as "an individual who is not older than the maximum age
requiring parental notification or consent, or proceedings in a State court, under the law requiring parental
involvement in a minor's abortion decision."
2
In section III, below, we discuss the constitutional requirements for such a state notice or consent
regime.
2
JUN-14-1999 16:32
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seek to impose such restrictions on out-of-state abortions. 3
Violation of § 2401(a) would be punishable by fine and by up to one year in
prison, making it a Class A misdemeanor. See 18 U.S.C. § 3559(a)(6) (1994). In
addition, H.R. 3682 would create a civil cause of action: proposed 18. U.S.C. § 2401(c)
would provide that "[a]ny parent or guardian who suffers legal harm from a violation of
subsection (a) may obtain appropriate relief in a civil action."
II. CONCERNS REGARDING THE SCOPE OF CIVIL AND CRIMINAL LIABILITY
As was stated in White House Chief of Staff Erskine Bowles's letter, H.R. 3682
must be amended to exclude close family members from civil and criminal liability. The
defendant in many potential prosecutions under proposed $ 2401(a), or in a civil action
under $ 2401(c), could well be a member of the minor's own family. Imposing criminal
and civil sanctions on family members, requiring family members to testify against each
other, and raising the prospect of lawsuits by one family member against another could
undercut, rather than encourage, family cohesion. Moreover, family members are not
likely to fit the paradigm scenario of adults acting with disregard of the minor's best
interests. In addition, the prospect of criminal or civil action against family members
would discourage a minor from seeking the advice and counsel of those closest to her.
We therefore recommend that H.R. 3682 incorporate an exception for family members
who transport the minor.
Chief of Staff Bowles's letter also stated that H.R. 3682 must be amended to
ensure that persons who provide information, counseling, or referral or medical services
to the minor are not subject to liability. Exposing such persons to the threat of criminal
or civil sanctions would not further the interest of promoting family communication and
would not deter those who inappropriately transport minors across state lines to obtain
abortions. The threat of accessory liability against such persons, moreover, would likely
impair the ability of physicians, clergy, counselors, and their staffs to care for and counsel
both minors and adults. The bill also could provide an unintended basis for vexatious
litigation against individuals and organizations, and could allow private citizens suing
under the extraordinarily open-ended civil liability provision of the statute to
inappropriately invade the privacy of patients.
3
There is a significant question whether and to what extent the Constitution would even permit states
to impose their abortion laws extraterritorially with respect to their citizens' out-of-state abortions, See
Bigelow V. Virginia, 421 U.S. 809, 822-24 (1975): Seth F. Kreimer, The Law of Choice and Choice of Law
Abortion the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. Rev.
451 (1992).
- 3 -
JUN-14-1999 16:33
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To address the risk of civil or criminal liability for persons who provide
information, counseling, or referral or medical services, we would propose adding a
provision with language along the following lines:
This section shall not give rise to liability of any person or entity based
upon provision of information, advertising, counseling, provision of medical
services, or referral for medical services.
III. CONSTITUTIONAL AND OTHER LEGAL CONCERNS
A_ Constitutional Principles Governing Parental Notification and Consent Laws
The Supreme Court has held that pregnant minors have a constitutional right to
choose whether to terminate a pregnancy. Planned Parenthood V. Danforth, 428 U.S. 52,
74 (1976). The Court further has held, however, that a State may require parental notice
or consent under certain circumstances as a prerequisite to a minor's abortion. See
Hodgson, 497 U.S. at 436-37 & n.22 (collecting cases). Nevertheless, although a state has
"somewhat broader authority to regulate the activities of children than of adults,"
Danforth, 428 U.S. at 74,
[t]he abortion decision differs in important ways from other decisions that
may be made during minority. The need to preserve the constitutional
right and the unique nature of the abortion decision, especially when made
by a minor, require a State to act with particular sensitivity when it
legislates to foster parental involvement in this matter.
Bellotti V. Baird, 443 U.S. 622, 642 (1979) (plurality opinion) ("Bellotti II''). Accordingly,
restrictions on the availability of such abortions - such as parental notice or consent
requirements - are impermissible if they "do[] not reasonably further any legitimate state
interest." Hodgson V. Minnesota, 497 U.S. 417, 450 (1990); see also Bellotti V. Baird,
428 U.S. 132, 147 (1976) ("Bellotti I").
In accord with these principles, states may require parental involvement in a
minor's decision whether to obtain an abortion, but only in a manner that serves to
ensure that the minor's decision is, in fact, informed: to assure, that is, "that the minor's
decision to terminate her pregnancy is knowing. intelligent, and deliberate." Hodgson,
497 U.S. at 450; accord Planned Parenthood V, Casey, 505 U.S. 833, 877 (1992) (opinion
of O'Connor, Kennedy, and Souter, JJ.) ("[T]he means chosen by the State to further the
4
Given § 2401(c)'s open-endedness and broad potential for unintended abuse, we recommend
climinating the provision from the bill or, in the alternative, limiting the provision to suits against persons
who have been convicted under the criminal liability provision of § 2401(a).
4 -
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interest in potential life must be calculated to inform the woman's free choice, not hinder
it.).⁵ The Court has reasoned that parental notice and consent requirements can be
constitutional because of the "quite reasonable assumption that minors will benefit from
consultation with their parents." Casey, 505 U.S. at 895.
A State that requires parental notification or consent may do so in a constitutional
manner if it provides a "bypass" mechanism that allows the minor to bypass the notice or
consent requirement if she establishes either (i) that she is sufficiently mature and well-
informed to make the abortion decision independently or (ii) that an abortion without
parental notice or consent would be in her best interests. The bypass procedure also
must be expeditious and must ensure the minor's anonymity.⁶
B. Constitutional Problems Raised by H.R. 3682
For some minors, out-of-state abortions might be significantly safer or otherwise
medically indicated. For others, the closest facilities will be out of state. Yet it appears
that proposed § 2401(a) would require in order for the criminal prohibition not to
apply - that a minor satisfy the requirements of her home state's parental involvement
law, even when the requirements of that law would not apply to out-of-state abortions.
As a result of this unique feature, proposed § 2401(a) would appear to be
unconstitutional in two respects.
First, proposed $ 2401(a) would appear to be unconstitutional as applied to a
minor seeking an out-of-state abortion, where the law of the state in which the minor
resides lacks a constitutionally sufficient mechanism for satisfying that state's notice or
consent requirements when an abortion is to be performed out of state. In such cases,
S
All citations to Casey herein are to the joint opinion of Justices O'Connor, Kennedy, and Souter.
6
The Court has held that such a bypass mechanism is required with respect to parental consent
statutes. See Bellotti II, 443 U.S. at 643-44 (plurality opinion); id, at 655-56 (Stevens, J, concurring in the
judgment); Lambert V. Wicklund, 520 U.S. 292, 117 S. Ct. 1169, 1171-72 (1997) (per curiam); see also
Ohio V, Akron Ctr. for Reproductive Health. 497 U.S. 502, 511-13 (1990). The Court also has held that
such a bypass mechanism is required with respect to a two-parent notification statute. See Hodgson, 497
U.S. at 450-55; id. at 461 (O'Connor, J., concurring in the judgment); id, at 481 (Kennedy, J., concurring
in the judgment in part and dissenting in part). The Supreme Court has not decided whether a bypass
procedure is mandatory if the statute requires notification of only one parent (rather than notification of
both parents or parental consent). Sce Lambert, 117 S. Ct. at 1171; Akron Ctr. for Reproductive Health,
497 U.S. at 510. However, the only appellate courts to have decided the issue have held that such bypass
mechanisms are necessary in one-parent notification states. See Planned Parenthood Sioux Falls Clinic Y,
Miller, 63 F3d 1452, 1458-60 (8th Cir. 1995), cert. denied, 517 U.S. 1174 (1996); Causeway Med, Suite V.
leyoub, 109 F.3d 1096 (Sth Cir.), cert. denied 118 S. a 357 (1997). But cf, Planned Parenthood Y,
Camblos, 116 F3d 707, 715-16 (Luttig, Circuit Judge, granting motion for stay of district court judgment
pending appeal) (questioning whether five Justices on current Supreme Court would conclude that bypass
procedures are constitutionally necessary in a one-parent notification setting), motion to vacate stay
denied, 125 F3d 884 (4th Cir. 1997).
5 -
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the provision would have the effect of deterring or preventing minors (particularly those
who cannot drive) from obtaining out-of-state abortions even when, for example, a
minor's parents in a "parental consent" state would have provided consent, or the minor
would have been able to obtain a judicial bypass, had mechanisms for manifesting such
consent or obtaining such a bypass for an out-of-state abortion been available. For
example, the law of the minor's home state might not provide any means of obtaining a
judicially authorized bypass in the case of an abortion to be performed out of state: The
law of the state of residence might authorize state judges to provide a bypass from the
state notice or consent requirements that otherwise apply, but not authorize such judges
to entertain a request for a bypass for an out-of-state abortion as to which state law
requirements would be inapplicable. In such cases, state judges might simply lack
jurisdiction under state law to provide a legal bypass for an abortion to be performed out
of state.
Where the requirements of the state of residence could not be met for an out-of-
state abortion, it would appear that proposed $ 2401(a) -- unlike constitutionally
permissible parental consent or notification laws - could not be justified as a legitimate
means of supporting "the authority of a parent who is presumed to act in the minor's
best interest
and thereby assures that the minor's decision to terminate her
pregnancy is knowing, intelligent, and deliberate." Hodgson, 497 U.S. at 450. As in
Hodgson, the restriction would not appear to "reasonably further any legitimate
[government] interest." Id,
7
In Montana, for example, the legal prerequisite for initiation of a youth-court bypass procedure is a
"petition" by the minor "for a waiver of the notice requirement." Mont. Code Ann. § 50-20-212(2)(a)
(1997). The "notice requirement," in turn, is imposed upon the "physician" who is to perform the abortion
(who may, however, rely upon notice given by the "referring physician"). Id, $ 50-20-204 (1997). And
"physician," in turn, is defined to mean "a person licensed to practice medicine under [Montana law]." Id,
§ 50-20-203 (1997). Therefore, in the case of an out-of-state abortion, there would appear to be no basis
for a Moutana state judge to entertain a request for a "waiver" of the requirement.
Proposed § 2401(a) also would give rise to constitutional concerns where the specified procedure for
manifesting parental notice or consent, as opposed to the judicial bypass, would not be effective for out-of-
state abortions. If, for example, the parental consent portion of the home state's law is directed at state-
licensed physicians, it would appear to be satisfied only when the patient provides proof of consent to one
of those physicians. See. e.g. S.C. Code Ann. §§ 44-41-10, 44-41-31 (Law. Co-op 1985 and Supp. 1997)
(defining "physician" as a person licensed to practice medicine in this State" and providing that the
attending or referring "physician" may perform an abortion on an unemancipated minor only after
"secur[ing] the informed written consent, signed and witnessed," of a parent, legal guardian, grandparent,
or a person who has been standing in loco parentis for at least 60 days). It therefore would not be at all
clear how a minor seeking an out-of-state abortion could satisfy even the consent portion of such a home-
state law in a manner that would permit a "transporter" of that minor to avoid criminal liability under
proposed § 2401(a).
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In Hodgson, the Court held that a two-parent notification requirement without a
bypass mechanism would fail to serve "any state interest with respect to functioning
families" that would not have been served by a requirement of one-parent notification
with a bypass option. Id, at 450. The Court explained that the state's interest in
ensuring that the minor's decision would be knowing, intelligent, and deliberate "would
be fully served by a requirement that the minor notify one parent who can then seek the
counsel of his or her mate or any other party, when such advice and support is deemed
necessary to help the child make a difficult decision." Id, Similarly, it would appear that
proposed § 2401(a) would be unconstitutional in states where there is no constitutionally
adequate provision for securing consent or notice, and bypass, for out-of-state abortions.
With respect to minors residing in such states for whom an abortion out of state might be
safer, less expensive, or otherwise more accessible than an in-state abortion, proposed $
2401(a) would not "reasonably further any legitimate [government] interest," id, (emphasis
added), at least insofar as the absence of available notice (or consent) and bypass
mechanisms for out-of-state abortions under either federal or state law would preclude
such minors from obtaining adult assistance in traveling interstate for abortions. In
circumstances where no mechanism existed that would enable a minor seeking an out-of-
state abortion to demonstrate that she had complied with the parental involvement
requirements of her home state, proposed § 2401(a) could inhibit interstate travel for
abortions even though such travel would have resulted from a knowing, intelligent, and
deliberate choice of the minor.
Second, the provision would appear to operate unconstitutionally in many of the
cases where both the minor's state of residence and the state in which the minor seeks to
have the abortion performed have parental consent or notification laws. By the law of
the state in which the abortion will be performed, the minor already will be required to
satisfy certain parental involvement prerequisites. If proposed § 2401(a) were construed
to require satisfaction of the parental involvement requirements of the minor's state or
residence as well, then in many cases the federal statute would, in effect, require a minor
who would need or want assistance in crossing state lines to satisfy parallel parental
consent or notification laws in both the state of residence and the state in which she
seeks the abortion. Such duplication would seem to serve little or no legitimate
governmental interest, just as the requirement of the second parent's notification without
8
an opportunity for bypass failed to do so in Hodgson.
8
In light of both of the types of constitutional infirmities discussed above, the statute might be facially
invalid (Le, inoperative nationwide) if, in "a large fraction of the cases in which [proposed § 2401(a)] is
relevant," Casey, 505 U.S. at 895, the criminal prohibition effectively would preclude minors from
obtaining adult assistance in traveling interstate for abortions. Cf. id. (holding provision to be "invalid" as
an "undue burden" because in a large fraction of the cases in which [the provision] is relevant, it will
operate as a substantial obstacle to a woman's choice to undergo an abortion"); see also Fargo Women's
Health Org V1 Schafer, 507 U.S. 1013, 1014 (1993) O'Connor, J., concurring in denial of stay); Janklow Y,
Planned Parenthood, Sioux Falls Clinic 517 U.S. 1174, 1175-76 (1996) (opinion of Stevens, J., respecting
the denial of cert.). The Casey standard for facial invalidity was developed in the context of state-law
abortion restrictions. It is uncertain how that standard would be applied or modified in light of a facial
7
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The constitutional infirmities identified above could appropriately be alleviated (1)
by creating an exemption for travel from states that have not established a
constitutionally sufficient consent/notice and bypass mechanism for out-of-state abortions,
and (2) by making clear that the prohibition effected by § 2401(a) would not apply in
cases where the state in which the abortion is performed requires parental notice or
consent.
C.
Mens Rea
Proposed § 2401(a) should be revised to require that an individual must have
"willfully violated" the federal statute to be subject to liability. In other words, individuals
should be subject to criminal sanction only if they know that they are acting unlawfully.
Congress has used a willfulness standard in criminal statutes in a range of contexts. See,
e.g., Bryan V. United States, No. 96-8422, slip op. at 10, (U.S. June 15, 1998) (sale of
firearms without a license); Ratzlaf V, United States, 510 U.S. 135 (1994) (currency
transactions in violation of reporting requirements); Cheek V. United States, 498 U.S.
192, 193-94 (1991) (felony and misdemeanor tax statutes).
Congress has opted for willfulness where there is a high likelihood of defendants
reasonably believing that they are acting lawfully. See Bryan, slip op. at 10. Many of the
people a minor will likely turn to for help - people such as her grandmother, her aunt,
her sibling (who also may be a minor), her religious counselor, her teenaged best friend -
- will often be people with little or no experience with abortion or knowledge of the
relevant law, let alone its finer points. Seeking to aid her, they might well engage in
conduct they reasonably believe to be lawful - driving a minor who is a granddaughter, a
niece, a parishioner, or a friend across state lines to a place where she can legally have
an abortion. In such circumstances, they would completely unwittingly violate a federal
criminal law and expose themselves to criminal and civil sanction.
In addition, Congress has employed a willfulness standard where the criminal
statute incorporates complex elements. Criminal liability under 2401(a) would turn in
large part on whether the state of residence's statutory requirements concerning parental
consent, notification and judicial bypass when a minor seeks an abortion had been
satisfied. The federal provision would give these state statutes an extraterritorial effect
that even an individual aware of all requirements of his own state's abortion laws would
not be able to discem from those laws. In addition, it might well require considerable
legal sophistication to determine the meaning of the home state's statutes in this new
federal context. Finally, as previously noted, it is novel to tie federal criminal liability to
conduct that is lawful in the state in which it occurs.
challenge to a congressional enactment such as H.R. 3682.
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To avoid these problems, the proposed statute should be revised to require a
"willful" violation to create liability. Thus revised, those who are acting to help the minor
and are unaware of the statutory regime will not be subject to prosecution.
D. Federalism Concerns
H.R. 3682 raises novel and important federalism issues. First, H.R. 3682 would
broadly undermine the ability of a state to vindicate its own policy determinations within
its own borders. The thrust of the proposed bill would be to use the federal criminal and
civil law to trump the policy determinations of those states that have opted not to
implement a parental involvement requirement. In this respect, H.R. 3682 is unlike
federal statutes that supplement already existing state criminal prohibitions in areas of
particular federal interest by making it a crime to engage in interstate transport or
commerce for the purpose of carrying out proscribed conduct in a neighboring state. In
such circumstances, the federal criminal law does not undermine the policy judgments of
the state in which the ultimate conduct occurs. In contrast, the proposed bill would
make unlawful travel for the purpose of engaging in conduct that is lawful in the state in
which it occurs.
Second, by extending the reach of one state's policy choice into neighboring states,
H.R. 3682 may have an impact well beyond what that state originally intended in
enacting its parental consent or notice law. It may well be that when a state decides that
no abortions should occur in its boundaries without parental notification or consent, it
nonetheless defers to the sovereignty of sister states as to conduct occurring in those
neighboring states, and recognizes that citizens of the various states -- including its own
citizens - should be entitled to take advantage of the diversity of norms of conduct
throughout the nation. The home state, in other words, may have no desire for its
internal policy choice to serve as the trigger for a federal criminal penalty against out-of-
state conduct. If so, then under H.R. 3682, that state's decision as to conduct within its
territorial borders would, in effect, be given extraterritorial reach that the state itself did
not intend it to have.
IV. PRACTICAL ENFORCEMENT PROBLEMS
Enforcement of proposed § 2401(a) would present a myriad of serious
enforcement problems. Compared with violations of other federal criminal statutes,
violations of proposed § 2401(a) would be notably difficult to investigate and to
prosecute, and would involve significant, and largely unnecessary, outlays of federal
resources.
First, for reasons discussed in section III-C, supra, we strongly recommend that
proposed § 2401(a) be amended to expressly require proof that a defendant "willfully
violated" the federal statute. In addition, it is not clear what constitutes "transport" under
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the statute. Often a transport requirement can be satisfied by a showing that the
defendant caused the act to happen - for example, by providing bus fare - as opposed
to actually having accompanied the minor.
Second, investigations and prosecutions under proposed § 2401(a) will impose a
particular burden on federal authorities. Interjurisdictional crimes are inherently more
difficult to investigate and generally require the deployment of specially constituted task
forces. H.R. 3682 would pose special problems because it would criminalize travel for
the purpose of facilitating behavior that is lawful in the state where it is undertaken. As
a consequence, it would be difficult for local law enforcement to work in tandem with
federal authorities because there is no local crime over which they would have
jurisdiction.
The detection and investigation of violations of H.R. 3682 would fall entirely to
the FBI - in stark contrast to the investigation of analogous federal crimes, in which
local law enforcement begins investigating a crime and calls in the FBI if it looks as if
there is a federal element. Here, the ultimate conduct will not be a crime in the state in
which it occurs, and will not have occurred in the home state with the parental consent
or notice laws. (By contrast, under a statute such as the Violence Against Women Act,
an assault would be subject to investigation and prosecution by state authorities.) This
will place a great burden on the FBI. Reliance on complaints from private citizens poses
its own prospect of taxing law enforcement resources: Given the bill's subject matter,
there is the distinct possibility that the FBI would be required to evaluate unusually high
numbers of complaints.
Third, the principal targets of proposed § 2401(a) are likely to be adult and
teenage relatives and friends of young women seeking abortions. Such defendants would
be highly sympathetic, and thus relatively difficult to investigate and to convict. Their
prosecutions would also raise legitimate questions of fair use of federal power and give
rise to charges of federal overreaching. Relatedly, a relatively high percentage of the
putative defendants under this statute may be minors, which raises special concerns in
the federal system.
Fourth, the proof of the critical elements in these cases generally will have to
come through either the defendant or the minor, both of whom would be extraordinarily
problematic witnesses. To prove that the defendant had the requisite intent, the
government in the run of cases would have to rely on either the minor or the defendant
(who would of course have a constitutional right not to testify). Given that the minor
will, in many if not most cases, have relied on the aid of the defendant, who may be her
boyfriend, aunt, grandmother, sister, best friend, etc., she is likely to be a hostile and
uncooperative witness. (Moreover, the trauma of being forced to participate in an
investigation and trial will add to any trauma she already may have suffered.) This is in
contrast to most other crimes, in which there is a victim who can provide testimony for
the prosecution.
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Fifth, state privacy laws concerning medical records and the existence of certain
state privileges will slow the investigation of these crimes. Enforcing subpoenas against
the backdrop of such state laws can take tremendous time and effort and provoke
tension between the state and federal systems. It also would run the risk, as would many
of the investigative and prosecutorial steps that statute would require, of making the
federal government appear overzealous and heavyhanded.9
Sixth, the investigative and prosecutorial challenges, and the substantial outlay of
federal resources, that § 2401(a) would entail are unnecessary to address important
policy concerns animating the bill. The states have a number of effective legal tools -
including laws against battery, kidnapping, and false imprisonment, and custody laws - to
prevent and punish the abduction or mistreatment of minors. 10 The existence of such
state tools makes it more difficult to justify the significant outlay of federal resources that
H.R. 3682 would require. Moreover, relying on state-law tools would ensure that federal
law would not inadvertently encourage young women to seek unsafe means - -- for
example, hitchhiking or traveling alone - of availing themselves of lawful out-of-state
procedures. Such results are particularly likely in this context because the federal law
would not make the minors' conduct unlawful and would only limit the persons who may
assist them in engaging in travel for the purpose of obtaining lawful medical procedures.
Thank you for the opportunity to comment on this important matter. If we may
be of additional assistance, please do not hesitate to contact us. The Office of
Management and Budget has advised that there is no objection from the standpoint of
the Administration's program to the presentation of this report.
Sincerely,
L Anthony Sutin
Acting Assistant Attorney General
9
A similar problem arises in the context of a civil action under the statute. Such an action would
likely involve discovery requests for medical information. Those requests would bc likely to conflict with
state privacy and privilege laws concerning doctor-patient or counsclor-client communications and medical
records The consequence will be either an unwelcome struggle between state and federal interests or an
effective preemption of state privacy law (with the strain on federalism interests that entails).
10 Thus, for example, in the much-cited case in which the mother of a 13-year-old girl alleged that her
daughter had been raped by an 18-year-old and taken by the boy's mother to another state for an abortion,
the 18-year-old pleaded guilty to two counts of statutory rape, and his mother was convicted of violating
Pennsylvania's interference-with-the-custody-of-children statute. The case against the mother was
remanded for a new trial, however, due to an error in jury instruction.
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U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
July 8, 1998
The Honorable Patrick J. Leahy
Ranking Minority Member
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Senator Leahy:
As was stated in the June 17, 1998, letter from White House Chief of Staff
Erskine Bowles to Chairman Hyde of the House Judiciary Committee, the
Administration would support properly crafted legislation that would make it illegal to
transport minors across state lines for the purpose of avoiding laws respecting parental
involvement in a minor's decision to obtain an abortion. The Administration appreciates
the concerns of the sponsors of S. 1645, the Child Custody Protection Act of 1998, about
fostering parental and family involvement in a minor's decision to obtain an abortion and
their concerns about preventing overbearing and sometimes predatory adults from
improperly influencing minors to choose an abortion.
This letter provides the views of the Department of Justice concerning the
amendment in the nature of a substitute to S. 1645, which we understand may be
proposed by Senator Abraham. Although, in our view, the bill's civil and criminal
provisions, as drafted, are overbroad and raise serious constitutional, legal, and law
enforcement concerns, we believe that legislation could be crafted that would
appropriately target non-relatives who transport minors across state lines for the purpose
of avoiding parental involvement requirements.
I. OPERATION OF S. 1645
S. 1645 would establish a new criminal prohibition to be codified as 18 U.S.C.
§ 2401(a). Proposed § 2401(a)(1) would read as follows:
Except as provided in subsection (b), whoever knowingly transports an
individual who has not attained the age of 18 years across a State line, with
the intent that such individual obtain an abortion, and thereby in fact
abridges the right of a parent under a law, requiring parental involvement
JUN-14-1999 16:36
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in a minor's abortion decision, of the State where the individual resides,
shall be fined under this title or imprisoned not more than one year, or
both.
1
The restriction on interstate transport would be triggered if the law in the state
where the minor resides would impose some sort of parental notice or consent
prerequisite before that minor could obtain an abortion in the state of her residence. 2
Under proposed § 2401(a)(2), an "abridgement of the right of a parent" under such a law
would occur if an abortion were performed on a minor in a state other than the state
where she resides, "without the parental consent or notification, or the judicial
authorization, that would have been required by that law had the abortion been
performed in the State where the [minor] resides." As we construe the provision, it
1
Proposed § 2401(b) would contain two exceptions. Under $ 2401(b)(1), the prohibition of
subsection (a) would 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." Under § 2401(b)(2), "[a]n individual
transported in violation of this section, and any parent of that individual, may not be prosecuted or sued
for a violation of this section, a conspiracy to violate this section, or an offense under section 2 or 3 (of
Tide 18] based on a violation of this section."
Subsection (c)(1) would define the operative phrase "a law requiring parental involvement in a
minor's abortion decision" as:
a law--
(A) requiring, before an abortion is performed on a minor, cither--
(i) the notification to, or consent of, a parent of that minor; or
(ii) proceedings in a State court; and
(B) that does not provide as an alternative to the requirements described in subparagraph
(A) notification to or consent of any person or entity who is not described in that
subparagraph.
Subsection (e)(2) would define "parent" as someone "who is designated by the law requiring
parental involvement in the minor's abortion decision as a person to whom notification, or from whom
consent, is required," and who also is "(A) a parent or guardian; (B) a legal custodian; or (C) a person
standing in loco parentis who has care and control of the minor, and with whom the minor regularly
resides."
Subsection (c)(3) would define a "minor" as "an individual who is not older than the maximum age
requiring parental notification or consent, or proceedings in a State court, under the law requiring parental
involvement in a minor's abortion decision."
2
In section III, below, we discuss the constitutional requirements for such a state notice or consent
regime.
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JUN-14-1999 16:37
appears that it would be a federal crime to transport a minor across state lines for an
out-of-state abortion if the statutory prerequisites that would have been applicable if the
abortion had been performed in the minor's home state had not previously been
satisfied. Proposed § 2401(a) in this way would restrict the ability of minors to obtain
out-of-state abortions, even where their home states would not seek to impose such
restrictions on out-of-state abortions. 3
Violation of § 2401(a) would be punishable by fine and by up to one year in
prison, making it a Class A misdemeanor. See 18 U.S.C. § 3559(a)(6) (1994). In
addition, S. 1645 would create a civil cause of action: Proposed 18 U.S.C. § 2401(d)
would provide that "[a]ny parent who suffers legal harm from a violation of subsection
(a) may obtain appropriate relief in a civil action." Under proposed § 2401(c), it would
be an affirmative defense to prosecution or to a civil action
that the defendant reasonably believed, based on information the defendant
obtained directly from a parent of the individual or other compelling facts,
that before the individual obtained the abortion, the parental consent or
notification, or judicial authorization took place that would have been
required by the law requiring parental involvement in a minor's abortion
decision, had the abortion been performed in the State where the
individual resides.
II. CONCERNS REGARDING THE SCOPE OF CIVIL AND CRIMINAL LIABILITY
As was stated in White House Chief of Staff Erskine Bowles's letter, the proposed
legislation must be amended to exclude close family members from civil and criminal
liability. While S. 1645 does exempt parents from liability, the defendant in many
potential prosecutions under proposed § 2401(a), or in a civil action under § 2401(d),
could well be another member of the minor's own family. The same considerations that
support exempting parents from liability also support a somewhat broader exemption
that would encompass other family members. Imposing criminal and civil sanctions on
family members, requiring family members to testify against each other, and raising the
prospect of lawsuits by one family member against another could undercut, rather than
encourage, family cohesion. Moreover, family members are not likely to fit the paradigm
scenario of adults acting with disregard of the minor's best interests. In addition, the
prospect of criminal or civil action against family members would discourage a minor
3 There is a significant question whether and to what extent the Constitution would even permit states
to impose their abortion laws extraterritorially with respect to their citizens' out-of-state abortions. See
Bigelow V. Virginia, 421 U.S. 809, 822-24 (1975); Seth F. Kreimer, The Law of Choice and Choice of Law:
Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. Rev.
451 (1992).
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JUN-14-1999 16:37
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from seeking the advice and counsel of those closest to her. We therefore recommend
that S. 1645 incorporate an exception for family members who transport the minor.
Chief of Staff Bowles's letter also stated that the proposed legislation must be
amended to ensure that persons who provide information, counseling, or referral or
medical services to the minor are not subject to liability. Exposing such persons to the
threat of criminal or civil sanctions would not further the interest of promoting family
communication and would not deter those who inappropriately transport minors across
state lines to obtain abortions. The threat of accessory liability against such persons,
moreover, would likely impair the ability of physicians, clergy, counselors, and their staffs
to care for and counsel both minors and adults. The bill also could provide an
unintended basis for vexatious litigation against individuals and organizations, and could
allow private citizens suing under the extraordinarily open-ended civil liability provision of
the statute to inappropriately invade the privacy of patients.
To address the risk of civil or criminal liability for persons who provide
information, counseling, or referral or medical services, we would propose adding a
provision with language along the following lines:
This section shall not give rise to liability of any person or entity based
upon provision of information, advertising, counseling, provision of medical
services, or referral for medical services.
III. CONSTITUTIONAL AND OTHER LEGAL CONCERNS
A. Constitutional Principles Governing Parental Notification and Consent Laws
The Supreme Court has held that pregnant minors have a constitutional right to
choose whether to terminate a pregnancy. Planned Parenthood V. Danforth, 428 U.S. 52,
74 (1976). The Court further has held, however, that a state may require parental notice
or consent under certain circumstances as a prerequisite to a minor's abortion. See
Hodgson, 497 U.S. at 436-37 & n.22 (collecting cases). Nevertheless, although a state has
"somewhat broader authority to regulate the activities of children than of adults,"
Danforth, 428 U.S. at 74,
[t]he abortion decision differs in important ways from other decisions that
may be made during minority. The need to preserve the constitutional
right and the unique nature of the abortion decision, especially when made
4
Given § 2401(d)'s open-endedness and broad potential for unintended abuse, we recommend
climinating the provision from the bill or, in the alternative, limiting the provision to suits against persons
who have been convicted under the criminal liability provision of § 2401(a).
4
JUN-14-1999 16:37
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by a minor, require a State to act with particular sensitivity when it
legislates to foster parental involvement in this matter.
Bellotti V, Baird, 443 U.S. 622, 642 (1979) (plurality opinion) ("Bellotti II"). Accordingly,
restrictions on the availability of such abortions -- such as parental notice or consent
requirements -- are impermissible if they "do[] not reasonably further any legitimate state
interest." Hodgson V. Minnesota, 497 U.S. 417, 450 (1990); see also Bellotti V. Baird,
428 U.S. 132, 147 (1976) ("Bellotti I").
In accord with these principles, states may require parental involvement in a
minor's decision whether to obtain an abortion, but only in a manner that serves to
ensure that the minor's decision is, in fact, informed: to assure, that is, "that the minor's
decision to terminate her pregnancy is knowing, intelligent, and deliberate." Hodgson,
497 U.S. at 450; accord Planned Parenthood V. Casey, 505 U.S. 833, 877 (1992) (opinion
of O'Connor, Kennedy, and Souter, JJ.) ("[T]he means chosen by the State to further the
interest in potential life must be calculated to inform the woman's free choice, not hinder
it.").⁵ The Court has reasoned that parental notice and consent requirements can be
constitutional because of the "quite reasonable assumption that minors will benefit from
consultation with their parents." Casey, 505 U.S. at 895.
A state that requires parental notification or consent may do so in a constitutional
manner if it provides a "bypass" mechanism that allows the minor to bypass the notice or
consent requirement if she establishes either (i) that she is sufficiently mature and well-
informed to make the abortion decision independently or (ii) that an abortion without
parental notice or consent would be in her best interests. The bypass procedure also
must be expeditious and must ensure the minor's anonymity.
S
All citations to Casey herein are to the joint opinion of Justices O'Connor, Kennedy, and Souter.
6
The Court has held that such a bypass mechanism is required with respect to parental consent
statutes. See Bellotti 11, 443 U.S. at 643-44 (plurality opinion); id. at 655-56 (Stevens, J., concurring in the
judgment); Lambert V. Wicklund, 520 U.S. 292, 117 S. Ct. 1169, 1171-72 (1997) (per curiam); see also
Ohio V. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511-13 (1990). The Court also has held that
such a bypass mechanism is required with respect to a two-parent notification statute. See Hodgson, 497
U.S. at 450-55; id. at 461 (O'Connor, J., concurring in the judgment); id, at 481 (Kennedy, J., concurring
in the judgment in part and dissenting in part). The Supreme Court has not decided whether a bypass
procedure is mandatory if the statute requires notification of only One parent (rather than notification of
both parents or parental consent). See Lambert, 117 S. Ct. at 1171; Akron Ctr. for Reproductive Health,
497 U.S. at 510. However, the only appellate courts to have decided the issue have held that such bypass
mcchanisms are necessary in one-parent notification statcs. See Planned Parenthood, Sioux Falls Clinic V,
Miller, 63 F.3d 1452, 1458-60 (8th Cir. 1995), cert. denied, 517 U.S. 1174 (1996); Causeway Med. Suite V.
Icyoub, 109 F.3d 1096 (Sth Cir.), cert. denied, 118 S. Ct. 357 (1997). But cf, Planned Parenthood V,
Camblos, 116 F3d 707, 715-16 (Luttig, Circuit Judge, granting motion for stay of district court judgment
pending appcal) (questioning whether five Justices on current Supreme Court would conclude that bypass
procedures are constitutionally necessary in a one-parent notification setting), motion to vacate stay
denied, 125 F.3d 884 (4th Cir. 1997).
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B. Constitutional Problems Raised by S, 1645
For some minors, out-of-state abortions might be significantly safer or otherwise
medically indicated. For others, the closest facilities will be out of state. Yet it appears
that proposed § 2401(a) would require -- in order for the criminal prohibition not to
apply -- that a minor satisfy the requirements that her home state law would have
imposed had she obtained an abortion in her home state, even though the requirements
of her home state's law would not apply to an out-of-state abortion. As a result of this
unique feature, proposed § 2401(a) would appear to be unconstitutional in two respects.
First, proposed § 2401(a) would appear to be unconstitutional as applied to a
minor seeking an out-of-state abortion, where the law of the state in which the minor
resides lacks a constitutionally sufficient mechanism for satisfying that state's notice or
consent requirements when an abortion is to be performed out of state. In such cases,
the provision would have the effect of deterring or preventing minors (particularly those
who cannot drive) from obtaining out-of-state abortions even when they would have been
able to satisfy a constitutionally valid state parental involvement law. For example, the
law of the minor's home state might not provide any means of obtaining a judicially
authorized bypass in the case of an abortion to be performed out of state: The law of
the state of residence might authorize state judges to provide a bypass from the state
notice or consent requirements that otherwise apply, but not authorize such judges to
entertain a request for a bypass for an out-of-state abortion as to which state law
requirements would be inapplicable. In such cases, state judges might simply lack
authority under state law to provide a legal bypass for an abortion to be performed out
of state.
7
Montana's parental involvement law illustrates the concern. In Montana, a "physician," defined as "a
person licensed to practice medicine under [Montana law]," Mont. Code Ann. § 50-20-203 (1997). may not
perform an abortion without notifying one of the minor's parents (unless a referring physician certifies
that he has previously provided notice), id. § 50-20-204. The legal prerequisite for initiation of a youth-
court bypass procedure is a "petition" by the minor "for a waiver of the notice requirement." Id. $ 50-20-
212(2)(a). Montana law docs not purport to impose a notice requirement in connection with a minor's
out-of-state abortion; there would appear to be no basis for a Montana state judge to entertain a request
for a "waiver" of a "requirement" that does not apply. In the case of an out-of-state abortion, then, it is
not clear that state law provides a means of obtaining a judicially authorized bypass.
Proposed $ 2401(a) also would give rise to constitutional concerns where the specified procedure
for manifesting parental notice or consent, as opposed to the judicial bypass, would not be effective for
out-of-state abortions. If, for example, the parental consent portion of the home state's law is directed at
state-liccnsed physicians, it would appear to be satisfied only when the patient provides proof of consent to
one of those physicians. See, e.g., S.C. Code Ann. §§ 44-41-10, 44-41-31 (Law. Co-op 1985 and Supp. 1997)
(defining "physician" as "a person licensed to practice medicine in this State" and providing that the
attending or referring "physician" may perform an abortion on an uncmancipated minor only after
"secur[ing] the informed written consent, signed and witnessed," of a parent, legal guardian, grandparent,
or a person who has been standing in loco parentis for at least 60 days). Thus, to the extent that proposed
§ 2401(a) is intended to require literal compliance with the home state's law, it would not be at all clear
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Where the requirements of the state of residence could not be met for an out-of-
state abortion, it would appear that proposed $ 2401(a) -- unlike constitutionally
permissible parental consent or notification laws -- could not be justified as a legitimate
means of supporting "the authority of a parent who is presumed to act in the minor's
best interest
and thereby assures that the minor's decision to terminate her
pregnancy is knowing, intelligent, and deliberate." Hodgson. 497 U.S. at 450. As in
Hodgson, the restriction would not appear to "reasonably further any legitimate
[government] interest." Id.
In Hodgson, the Court held that a two-parent notification requirement without a
bypass mechanism would fail to serve "any state interest with respect to functioning
families" that would not have been served by a requirement of one-parent notification
with a bypass option. Id. at 450. The Court explained that the state's interest in
ensuring that the minor's decision would be knowing, intelligent, and deliberate "would
be fully served by a requirement that the minor notify one parent who can then seek the
counsel of his or her mate or any other party, when such advice and support is deemed
necessary to help the child make a difficult decision." Id, Similarly, it would appear that
proposed § 2401(a) would be unconstitutional in states where there is no constitutionally
adequate provision for securing consent or notice, and bypass, for out-of-state abortions.
With respect to minors residing in such states for whom an abortion out of state might be
safer, less expensive, or otherwise more accessible than an in-state abortion, proposed §
2401(a) would not "reasonably further any legitimate [government] interest," id, (emphasis
added), at least insofar as the absence of available notice (or consent) and bypass
mechanisms for out-of-state abortions under either federal or state law would preclude
such minors from obtaining adult assistance in traveling interstate for abortions. In
circumstances where no mechanism existed that would enable a minor seeking an out-of-
state abortion to demonstrate that she had complied with the parental involvement
requirements of her home state, proposed § 2401(a) could inhibit interstate travel for
abortions even though such travel would have resulted from a knowing, intelligent, and
deliberate choice of the minor.
Second, the provision would appear to operate unconstitutionally in many of the
cases where both the minor's state of residence and the state in which the minor seeks to
have the abortion performed have parental consent or notification laws. By the law of
the state in which the abortion will be performed, the minor already will be required to
satisfy certain parental involvement prerequisites. If proposed § 2401(a) were construed
to require satisfaction of the parental involvement requirements of the minor's state or
residence as well, then in many cases the federal statute would, in effect, require a minor
who would need or want assistance in crossing state lines to satisfy parallel parental
consent or notification laws in both the state of residence and the state in which she
seeks the abortion. Such duplication would seem to serve little or no legitimate
how a minor seeking an out-of-state abortion could satisfy the consent portion of such a law in a manner
that would permit a "transporter" of the minor to avoid criminal liability under proposed § 2401(a).
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governmental interest, just as the requirement of the second 8 parent's notification without
an opportunity for bypass failed to do so in Hodgson.
The constitutional infirmities identified above could appropriately be alleviated (1)
by creating an exemption for travel from states that have not established a
constitutionally sufficient consent/notice and bypass mechanism for out-of-state abortions,
and (2) by making clear that the prohibition effected by § 2401(a) would not apply in
cases where the state in which the abortion is performed requires parental notice or
consent.
C.
Mens Rea
Proposed § 2401(a) should be revised to require that an individual must have
"willfully violated" the federal statute to be subject to liability. In other words, individuals
should be subject to criminal sanction only if they know that they are acting unlawfully.
As currently drafted, proposed § 2401(a) would target one who knowingly transports a
minor across state lines to obtain an abortion, if "in fact" an abortion is performed on the
minor in a state other than the minor's state of residence, "without the parental consent
or notification, or the judicial authorization, that would have been required" by the law of
the minor's state of residence had the abortion been performed in that state. Proposed
§ 2401(c) would create an affirmative defense for a defendant who "reasonably believed,
based on information the defendant obtained directly from a parent of the individual or
other compelling facts" that the requirements of the state of residence had been met.
We agree that it is sensible and equitable not to impose criminal liability on
persons who reasonably believe the law has been followed. In this regard, it is important
to recognize that S. 1645 as written still could reach persons who had no reason to
recognize that their conduct might have violated any state or federal law. As a general
matter, citizens who engage in conduct that is legal in the state where they undertake it
but not in their home state would not think that they are thereby violating the law of
their home state or federal criminal law. As written, the affirmative defense would still
permit the imposition of liability on those who are unaware that a federal statute has, in
effect, given state law an extraterritorial reach, and who therefore reasonably believe they
8
In light of both of the types of constitutional infirmities discussed above, the statute might be facially
invalid (i.e., inoperative nationwide) if, in "a large fraction of the cases in which [proposed § 2401(a)] is
relevant," Casey, 505 U.S. at 895, the criminal prohibition effectively would preclude minors from
obtaining adult assistance in traveling interstate for abortions. Cf, id, (holding provision to be "invalid" as
an "undue burden" because "in a large fraction of the cases in which [thc provision] is relevant, it will
operate as a substantial obstacle to a woman's choice to undergo an abortion"); see also Fargo Women's
Health Org, V. Schafer, 507 U.S. 1013, 1014 (1993) (O'Connor, J., concurring in denial of stay); Jankiow v.
Planned Parenthood Sioux Fulls Clinic 517 U.S. 1174, 1175-76 (1996) (opinion of Stevens, J., respecting
the denial of cert.). The Casey standard for facial invalidity was developed in the context of state-law
abortion restrictions. It is uncertain how that standard would be applied or modified in light of a (acial
challenge to a congressional enactment such as S. 1645.
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are acting lawfully. In order to fulfill the apparent policy goals behind the affirmative
defense, Congress should specify a willfulness standard in S. 1645.
Congress has used a willfulness standard in criminal statutes in a range of
contexts. See, e.g., Bryan V. United States, No. 96-8422, slip op. at 10, (U.S. June 15,
1998) (sale of firearms without a license); Ratzlaf V. United States, 510 U.S. 135 (1994)
(currency transactions in violation of reporting requirements); Cheek V, United States,
498 U.S. 192, 193-94 (1991) (felony and misdemeanor tax statutes). Congress has opted
for willfulness where there is a high likelihood of defendants reasonably believing that
they are acting lawfully. See Bryan, slip op. at 10. Many of the people a minor will
likely turn to for help -- people such as her grandmother, her aunt, her sibling (who also
may be a minor), her religious counselor, her teenaged best friend -- will be people with
little or no experience with abortion or knowledge of the relevant law, let alone its finer
points. They might well engage in conduct they reasonably believe to be lawful - -- seeking
to aid a minor who is a granddaughter, a niece, a parishioner, or a friend by driving her
across state lines to a place where she can legally have an abortion. In such
circumstances, they would completely unwittingly violate a federal criminal law and
expose themselves to criminal and civil sanction.
In addition, Congress has employed a willfulness standard where the criminal
statute incorporates complex elements. Criminal liability under § 2401(a) would turn in
large part on whether the state of residence's statutory requirements concerning parental
consent or notification and judicial bypass when a minor seeks an abortion had been
satisfied. The federal provision would give these state statutes an extraterritorial effect
that even an individual aware of all requirements of his own state's abortion laws would
not be able to discern from those laws. In addition, it might well require considerable
legal sophistication to determine the meaning of the home state's statutes in this new
federal context. Finally, as noted below, it is novel to tie federal criminal liability to
conduct that is lawful in the state in which it occurs.
To avoid these problems, the proposed statute should be revised to require a
"willful" violation to create liability. Thus revised, those who are acting to help the minor
and are unaware of the statutory regime will not be subject to prosecution.
D. Federalism Concerns
S. 1645 raises novel and important federalism issues. First, S. 1645 would broadly
undermine the ability of a state to vindicate its own policy determinations within its own
borders. The thrust of the proposed bill would be to use the federal criminal and civil
law to trump the policy determinations of those states that have opted not to implement
a parental involvement requirement. In this respect, S. 1645 is unlike federal statutes
that supplement already existing state criminal prohibitions in areas of particular federal
interest by making it a crime to engage in interstate transport or commerce for the
purpose of carrying out proscribed conduct in a neighboring state. In such circumstances,
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the federal criminal law does not undermine the policy judgments of the state in which
the ultimate conduct occurs. In contrast, the proposed bill would make unlawful travel
for the purpose of engaging in conduct that is lawful in the state in which it occurs.
Second, by extending the reach of one state's policy choice into neighboring states,
S. 1645 may have an impact well beyond what that state originally intended in enacting
its parental consent or notice law. It may well be that when a state decides that no
abortions should occur in its boundaries without parental notification or consent, it
nonetheless defers to the sovereignty of sister states as to conduct occurring in those
neighboring states, and recognizes that citizens of the various states -- including its own
citizens -- should be entitled to take advantage of the diversity of norms of conduct
throughout the nation. The home state, in other words, may have no desire for its
internal policy choice to serve as the trigger for a federal criminal penalty against out-of-
state conduct. If so, then under S. 1645, that state's decision as to conduct within its
territorial borders would, in effect, be given extraterritorial reach that the state itself did
not intend it to have.
IV. PRACTICAL ENFORCEMENT PROBLEMS
Proposed $ 2401(a) would present a myriad of serious enforcement problems.
Compared with violations of other federal criminal statutes, violations of proposed §
2401(a) would be notably difficult to investigate and to prosecute, and would involve
significant, and largely unnecessary, outlays of federal resources.
First, for reasons discussed in section III-C, supra, we strongly recommend that
proposed § 2401(a) be amended to expressly require proof that a defendant "willfully
violated" the federal statute, In addition, it is not clear what constitutes "transport" under
the statute. Often a transport requirement can be satisfied by a showing that the
defendant caused the act to happen -- for example, by providing bus fare -- as opposed
to actually having accompanied the minor.
Second, investigations and prosecutions under proposed § 2401(a) will impose a
particular burden on federal authorities. Interjurisdictional crimes are inherently more
difficult to investigate and generally require the deployment of specially constituted task
forces. S. 1645 would pose special problems because it would criminalize travel for the
purpose of facilitating behavior that is lawful in the state where it is undertaken. As a
consequence, it would be difficult for local law enforcement to work in tandem with
federal authorities because there is no local crime over which they would have
jurisdiction.
The detection and investigation of violations of S. 1645 would fall entirely to the
FBI -- in stark contrast to the investigation of analogous federal crimes, in which local
law enforcement begins investigating a crime and calls in the FBI if it looks as if there is
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a federal element. Here, the ultimate conduct will not be a crime in the state in which it
occurs, and will not have occurred in the home state with the parental consent or notice
laws. (By contrast, under a statute such as the Violence Against Women Act, an assault
would be subject to investigation and prosecution by state authorities.) This will place a
great burden on the FBI. Reliance on complaints from private citizens poses its own
prospect of taxing law enforcement resources: Given the bill's subject matter, there is
the distinct possibility that the FBI would be required to evaluate unusually high numbers
of complaints.
Third, the principal targets of proposed § 2401(a) are likely to be adult and
teenage relatives and friends of young women seeking abortions. Such defendants would
be highly sympathetic, and thus relatively difficult to investigate and to convict. Their
prosecutions would also raise legitimate questions of fair use of federal power and give
rise to charges of federal overreaching. Relatedly, a relatively high percentage of the
putative defendants under this statute may be minors, which raises special concerns in
the federal system.
Fourth, the proof of the critical elements in these cases generally will have to
come through either the defendant or the minor, both of whom would be extraordinarily
problematic witnesses. To prove that the defendant had the requisite intent, the
government in the run of cases would have to rely on either the minor or the defendant
(who would of course have a constitutional right not to testify). Given that the minor
will, in many if not most cases, have relied on the aid of the defendant, who may be her
boyfriend, aunt, grandmother, sister, best friend, etc., she is likely to be a hostile and
uncooperative witness. (Moreover, the trauma of being forced to participate in an
investigation and trial will add to any trauma she already may have suffered.) This is in
contrast to most other crimes, in which there is a victim who can provide testimony for
the prosecution.
Fifth, the affirmative defense contained in the proposal is somewhat unwieldy. In
typical cases in which a criminal statute incorporates a defense, the prosecution conducts
its investigation with an eye toward ensuring that the defendant cannot raise the defense.
Here, that will be difficult because it is unclear what the statute contemplates as
"compelling facts." The reasonable belief standard also is framed in a way that is atypical
of affirmative defenses in other criminal laws, which generally do not require that the
belief be premised on "compelling facts" or on information from a specific source.
Sixth, state privacy laws concerning medical records and the existence of certain
state privileges will slow the investigation of these crimes. Enforcing subpoenas against
the backdrop of such state laws can take tremendous time and effort and provoke
tension between the state and federal systems. It also would run the risk, as would many
of the investigative and prosecutorial steps that the statute would require, of making the
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JUN-14-1999 16:40
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federal government appear overzealous and heavyhanded.⁹
Seventh, the investigative, and prosecutorial challenges, and the substantial outlay
of federal resources, that § 2401(a) would entail are unnecessary to address important
policy concerns animating the bill. The states have a number of effective legal tools --
including laws against battery, kidnapping, and false imprisonment, and custody laws - to
prevent and punish the abduction or mistreatment of minors. 10 The existence of such
state tools makes it more difficult to justify the significant outlay of federal resources that
S. 1645 would require. Moreover, relying on state-law tools would ensure that federal
law would not inadvertently encourage young women to seek unsafe means - for
example, hitchhiking or traveling alone of availing themselves of lawful out-of-state
procedures. Such results are particularly likely in this context because the federal law
would not make the minors' conduct unlawful and would only limit the persons who may
assist them in engaging in travel for the purpose of obtaining lawful medical procedures.
Please let us know if we may be of additional assistance in connection with-this or
any other matter. The Office of Management and Budget has advised that there is no
objection from the standpoint of the Administration's program to the presentation of this
report.
Sincerely
L. Anthony Sutin
Acting Assistant Attorney General
cc: The Honorable Orrin G. Hatch
Chairman
Committee on the Judiciary
The Honorable Spencer Abraham
9
A similar problem arises in the context of a civil action under the statute. Such an action would
likely involve discovery requests for medical information. Those requests would be likely to conflict with
state privacy and privilege laws concerning doctor-patient or counselor-client communications and medical
records. The consequence will be either an unwelcome struggle between state and federal interests or an
effective preemption of state privacy law (with the strain on federalism interests that entails).
10
Thus, for example, in the much-cited case in which the mother of a 13-year-old girl alleged that her
daughter had been raped by an 18-year-old and taken by the boy's mother to another state for an abortion,
the 18-year-old pleaded guilty to two counts of statutory rape, and his mother was convicted of violating
Pennsylvania's interference-with-the-custody-of-children statute. The case against the mother was
remanded for a new trial, however, due to an error in jury instruction.
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MINORITY MEMBERS
MAJORITY MEMBERS
JOHN CONVERS, JR., MICHIGAN
HENRY J. HYDE. ILLINOIS. CHAIRMAN
BARNEY FRANK MASSACHUSETTS
F. JAMES SENSENBRENNER. a WISCONSIN
ONE HUNDRED FIFTH CONGRESS
CHARLES E. SCHUMER. NEW CRK
all MCCOLLUM, FLORIDA
HOWARD L. BERMAN. CALIFORNIA
GEORGE W, GECAS, PENNSYLVANIA
Congress of the United States
RICK BOUCHER, VIRGINIA
COBLE NORTH CAROLINA
JERROLD NADLER. NEW YORK
SMITH TEXAS
ROBERT C. "BOODY" SCOTT. VIRGINIA
"WIFF, NEW MEXICO
MELVIN L. WATT. NORTH CAROLINA
ALLEGLY, CALIFORNIA
TOE LORGREN. CALIFORNIA
CHAMLES T. CANADY. FLORIDA
DOB INCLIE, COUTH CAROLINA
house of Representations
SMEILA JACKSON LEE, TEXAS
MAXINE WATERS. CALIFORNIA
as GOODLATTE. VIRGINIA
MARTIN T. MEEKAN. MASS@CHUSETTS
STEVE RUVER, INDIANA
COMMITTEE ON THE JUDICIARY
WILLIAM D. DELAHUNT, MASSACHUSETTE
ED BRYANT. TENNESSEE
ROBERT WEXLEP. FLORIDA
STEVE CHABOT, OHIO
ETEVEN.R. ROTHMAN, NEW JERSEY
008 BARR GEORGIA
2138 RAYBURN HOUSE OFFICE BUILDING
WILLIAM L. JENKINS. TENNESSEE
454 WUTCHINSON. ARKANSAS
EDWARD a, DEASE. INDIANA
WASHINGTON, DC 20515-6218
CHRISTOPHER a. CANNON, UT and
THOMAS 1. MOUNEY. FR.
JULIAN EPSTEIN
JAMES E. ROGAN. CALIFORNIA
LINDSEY O. GRANAM. SOUTH CAROLIN-
CHIEF OF STARF GENERAL COUNSEL
(202) 225-3951
MINORITY STAFF DIRECTOR
htto://www.house.dov/judiciars
JON DUDAS
STAFF DIRECTOR DÉPUTY GENERAL COUNSEL
June 26, 1998
The President
The White House
Washington, D.C. 20502
Dear Mr. President:
As Democratic Members of the House Judiciary Committee we are writing to urge you to
veto H.R. 3682, the so-called "Child Custody Protection Act," if it reaches your desk.
This legislation will dramatically increase the dangers young women face in their
decisions to terminate unwanted pregnancies. Since H.R. 3682 contains no prohibition against
young women traveling across state lines to avoid a consent requirement, it will merely lead to
more women traveling alone to obtain abortions or seeking illegal "back alley" abortions locally.
To the extent young women continue to seek the involvement of close family members when
they cannot confide in their parents for example where the parent has committed incest or there
is a history of child abuse the legislation would result in the criminalization of grandparents
and other relatives. Indeed at our hearings we learned of several tragic circumstances where
young women who would not confide in their parents or trust the confidentiality of the judicial
bypass process died as a result of illegal abortions. The number of these incidents can only be
expected to multiply under H.R. 3682.
We can also inform you that none of the principal objections set forth in letters from your
Chief of Staff and the Justice Department have been addressed during the Committee markup.
Despite your Administration's objection to H.R. 3682's applying to close family members and
persons providing counseling, referral or medical services, the legislation was not altered to
respond to these concerns (other than to provide an exemption for parents). Indeed the
Republican majority rejected several Democratic amendments to exempt relatives such as
grandparents and siblings. and clinics from the scope of the bill. As a result, the bill continues to
provide "an unintended basis for vexatious litigation against [these] individuals and
organizations" as Mr. Bowles complained of in his letter.
In addition, the Majority refused to make any changes to provide exemptions for travel
from states that have not established a constitutionally sufficient judicial bypass mechanism or to
make clear that the bill does not mandate minors complying with the consent requirements of
two separate states. As a result, H.R. 3682 would appear to be unconstitutional by the very terms
laid out the by Justice Department and relevant Supreme Court precedent. Finally, we would
note that the other serious problems laid out by the Justice Department, concerning the bill's
overly broad strict liability requirements. federalism concerns, and enforcement difficulties. were
are also not resolved in the Committee passed bill.
JUN-14-1999 16:42
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Letter to the President
June 26, 1998
Page - 2
H.R. 3682 does nothing to prevent teen pregnancies, but it does make abortion far more
dangerous. We appreciate the consistent and principled positions you have taken in the past on
matters involving a woman's right to choose, and we therefore strongly urge you to veto this bill
should it reach your desk.
Sincerely,
Johnlongy John Conyers, Jr.
Barney Frank
Chuck Schumer
Howard & Daman
Charles E. Schumer
Howard L. Berman
Jesuld Inrold Nadler hadh
R obly Scott
Robert Scott
With
Melvin L. Wart
26g Lofgren
Sheila Jackson Lee
Maine Maxine Waters Waters
Maty Martin T. Mechan Maha
William D. Delahunt
Robet Wexler
Robert Wexler
cc:
The Honorable Erskine Bowles
Chief of Staff to the President
The Honorable Larry Stein
Assistant to the President for Legislative Affairs
TOTAL P. 30