[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CHILD CUSTODY PROTECTION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.R. 1755
__________
JULY 20, 2004
__________
Serial No. 101
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
JULY 20, 2004
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 4
WITNESSES
Ms. Joyce Farley, Victim, Dushore, Pennsylvania
Oral Testimony................................................. 6
Prepared Statement............................................. 7
Mr. Mark D. Rosen, Associate Professor (with tenure), Chicago-
Kent College of Law
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Ms. Lois M. Powell, Minister, United Church of Christ, on behalf
of the Religious Coalition for Reproductive Choice
Oral Testimony................................................. 17
Prepared Statement............................................. 19
Ms. Teresa Stanton Collett, Professor of Law, University of St.
Thomas School of Law
Oral Testimony................................................. 21
Prepared Statement............................................. 24
APPENDIX
Material Submitted for the Hearing Record
Statement by Professor John C. Harrison submitted by Chairman
Chabot......................................................... 51
Advertisements submitted by Chairman Chabot...................... 53
Prepared Statement of the Honorable Ileana Ros-Lehtinen, a
Representative in Congress From the State of Florida........... 58
Statement submitted by the American Academy of Pediatrics........ 59
A letter and testimonies submitted by the Honorable Nadler....... 63
CHILD CUSTODY PROTECTION ACT
----------
TUESDAY, JULY 20, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:53 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. Good afternoon. This is the Subcommittee on the
Constitution. I am Steve Chabot, the Chairman. Today the House
Constitution Subcommittee holds a legislative hearing on the
H.R. 1755, the ``Child Custody Protection Act.''
The Child Custody Protection Act would make it a Federal
offense to knowingly transport a minor across a State line with
the intent that she obtain an abortion in circumvention of a
State's parental consent of notification law. This Act is a
regulation of interstate commerce that seeks to protect the
health and safety of young girls, as well as the rights of
parents to be involved in the medical decisions of their minor
daughters, by preventing valid and constitutional State
parental involvement laws from being circumvented. This Act
falls well within Congress' constitutional authority to
regulate the transportation of individuals in interstate
commerce.
A total of 44 States have enacted some form of a parental
involvement statute. Twenty-four of these States currently
enforce statutes that require the consent or notification of at
least one parent or court authorization before a minor can
obtain an abortion. Such laws reflect widespread agreement that
it is the parents of a pregnant minor who are best suited to
provide her counsel, guidance and support as she decides
whether to continue her pregnancy or to undergo an abortion.
These laws not only help to ensure the health and safety of
pregnant young girls, but also support fundamental parental
rights.
Despite widespread support for parental involvement laws
and clear public policy considerations justifying them,
substantial evidence exists that such laws are regularly evaded
by adults who transport minors to abortion providers in States
that do not have parental notification or consent laws. The
Child Custody Protection Act would curb the interstate
circumvention of these laws, thereby protecting the rights of
parents and the interests of vulnerable minors. The Act is not
a Federal parental involvement law. Rather, it ensures that the
State laws are not evaded through interstate activity. The Act
does not encroach upon State powers; it reinforces them,
respecting the rights of the various States to make these
policy decisions for themselves and ensuring that each State's
policy aims regarding this issue are not frustrated.
Protecting State laws relating to parental involvement in
the abortion decisions of minor girls will lead to improved
medical care for minors seeking abortions and provide increased
protection for young girls against sexual exploitation by adult
men.
When parents are not involved in the abortion decisions of
a child, the risks to the child's health significantly
increase. Parental involvement will ensure that parents have
the opportunity to provide additional medical history and
information to abortion providers prior to performance of an
abortion. The medical, emotional and psychological consequences
of an abortion are serious and lasting; this is particularly so
when the patient is immature. An adequate medical and
psychological case history is important to the physician.
Parents can provide such information for their daughters as
well as any pertinent family medical history, refer the
physician to other sources of medical history, such as family
physicians, and authorize family physicians to give relevant
data.
Only parents are likely to know a young girl's allergies to
anesthesia and medication or previous bouts with specific
medical conditions, including depression. A more complete and
thus more accurate medical history of the patient will enable
abortion providers to disclose not only medical risks that
ordinarily accompany abortions but also those risks that may be
specific to the pregnant minor.
Parental involvement will also improve medical treatment of
pregnant minors by ensuring that parents have adequate
knowledge to recognize and respond to any post-abortion
complications that may develop. Without the knowledge that
their daughters have had abortions, parents are incapable of
ensuring that their children obtain routine postoperative care
or of providing an adequate medical history to physicians
called upon to treat any complications that may arise. These
omissions may allow complications such as infection,
perforation or depression to continue untreated and may be
lethal.
When confused and frightened young girls are assisted in
and encouraged to circumvent parental notice and consent laws
by crossing State lines, they are led into what will likely be
a hasty and potentially ill-advised decision. Often these girls
are being guided by those who do not share the love and
affection that most parents have for their children. Teenage
pregnancies often occur as a result of predatory practices of
men who are substantially older than the minor, resulting in
the guidance of the girl across State lines by an individual
who has a great incentive to avoid criminal liability for his
conduct. Experience suggests that sexual predators recognize
the advantage of their victims obtaining an abortion. Not only
does an abortion eliminate a critical piece of evidence of the
criminal conduct, it allows the abuse to continue undetected.
Parental involvement laws ensure that parents have the
opportunity to protect their daughters from those who would
victimize them further.
The physical and psychological risks of abortions to minors
are great, and laws requiring parental involvement in such
abortions, subject to judicial bypass procedures, reduce that
risk. The widespread practice of avoiding such laws through
interstate commerce may be prevented only through Federal
legislation. The Child Custody Protection Act, this Act that we
are considering today, will assist in the enforcement of
parental involvement laws that meet the relevant constitutional
criteria. The safety of young girls and the rights of parents
demand no less.
I would now yield to the gentleman from New York, Mr.
Nadler, for 5 minutes for the purpose of making an opening
statement if he so chooses.
[The prepared statement of Mr. Chabot follows:]
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress From the State of Ohio, and Chairman, Subcommittee on the
Constitution
Good afternoon. Today the House Constitution Subcommittee holds a
legislative hearing on H.R. 1755, the ``Child Custody Protection Act.''
The Child Custody Protection Act would make it a federal offense to
knowingly transport a minor across a state line, with the intent that
she obtain an abortion, in circumvention of a state's parental consent
or notification law. The Act is a regulation of interstate commerce
that seeks to protect the health and safety of young girls, as well as
the rights of parents to be involved in the medical decisions of their
minor daughters, by preventing valid and constitutional state parental
involvement laws from being circumvented. The Act falls well within
Congress' constitutional authority to regulate the transportation of
individuals in interstate commerce.
A total of forty-four states have enacted some form of a parental
involvement statute. Twenty-four of these states currently enforce
statutes that require the consent or notification of at least one
parent or court authorization before a minor can obtain an abortion.
Such laws reflect widespread agreement that it is the parents of a
pregnant minor who are best suited to provide her counsel, guidance,
and support as she decides whether to continue her pregnancy or to
undergo an abortion. These laws not only help to ensure the health and
safety of pregnant young girls but also support fundamental parental
rights.
Despite widespread support for parental involvement laws and clear
public policy considerations justifying them, substantial evidence
exists that such laws are regularly evaded by adults who transport
minors to abortion providers in states that do not have parental
notification or consent laws. The Child Custody Protection Act would
curb the interstate circumvention of these laws, thereby protecting the
rights of parents and the interests of vulnerable minors. The Act is
not a federal parental involvement law. Rather, it ensures that these
state laws are not evaded through interstate activity. The Act does not
encroach upon state powers; it reinforces them, respecting the rights
of the various states to make these policy decisions for themselves and
ensuring that each state's policy aims regarding this issue are not
frustrated.
Protecting state laws relating to parental involvement in the
abortion decisions of minor girls will lead to improved medical care
for minors seeking abortions and provide increased protection for young
girls against sexual exploitation by adult men.
When parents are not involved in the abortion decisions of a child,
the risks to the child's health significantly increase. Parental
involvement will ensure that parents have the opportunity to provide
additional medical history and information to abortion providers prior
to performance of an abortion. The medical, emotional, and
psychological consequences of an abortion are serious and lasting; this
is particularly so when the patient is immature. An adequate medical
and psychological case history is important to the physician. Parents
can provide such information for their daughter as well as any
pertinent family medical history, refer the physician to other sources
of medical history, such as family physicians, and authorize family
physicians to give relevant data.
Only parents are likely to know of a young girl's allergies to
anesthesia and medication or previous bouts with specific medical
conditions, including depression. A more complete and thus more
accurate medical history of the patient will enable abortion providers
to disclose not only medical risks that ordinarily accompany abortions
but also those risks that may be specific to the pregnant minor.
Parental involvement will also improve medical treatment of
pregnant minors by ensuring that parents have adequate knowledge to
recognize and respond to any post-abortion complications that may
develop. Without the knowledge that their daughters have had abortions,
parents are incapable of ensuring that their children obtain routine
post-operative care or of providing an adequate medical history to
physicians called upon to treat any complications that may arise. These
omissions may allow complications such as infection, perforation, or
depression to continue untreated and may be lethal.
When confused and frightened young girls are assisted in and
encouraged to circumvent parental notice and consent laws by crossing
state lines, they are led into what will likely be a hasty, and
potentially ill-advised, decision. Often, these girls are being guided
by those who do not share the love and affection that most parents have
for their children. Teenage pregnancies often occur as a result of
predatory practices of men who are substantially older than the minor,
resulting in the guidance of the girl across state lines by an
individual who has a great incentive to avoid criminal liability for
his conduct. Experience suggests that sexual predators recognize the
advantage of their victims obtaining an abortion. Not only does an
abortion eliminate a critical piece of evidence of the criminal
conduct, it allows the abuse to continue undetected. Parental
involvement laws ensure that parents have the opportunity to protect
their daughters from those who would victimize them further.
The physical and psychological risks of abortions to minors are
great, and laws requiring parental involvement in such abortions,
subject to judicial bypass procedures, reduce that risk. The widespread
practice of avoiding such laws through interstate commerce may be
prevented only through federal legislation. The Child Custody
Protection Act will assist in the enforcement of parental involvement
laws that meet the relevant constitutional criteria. The safety of
young girls and the rights of parents demand no less.
Mr. Nadler. Have you ever known me not to so choose?
Mr. Chabot. Never. [Laughter.]
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I have
to confess, I'm beginning to feel a bit like Sisyphus,
condemned to re-visit, re-argue, re-vote and repeat every issue
demanded by some conservative constituency gathered underneath
the Republican big tent.
We are even calling some of the same witnesses. Today it's
another abortion bill, a bill we've had how many, four times
previously? Thursday it will be a facially unconstitutional and
largely symbolic same-sex marriage court stripping bill.
I want to be a good sport, Mr. Chairman, but I'm beginning
to feel like I'm being punished for some unknown offense
against heaven. Were it not for the fact that the consequences
of this ill-advised and unconstitutional proposal would cost
lives and destroy families, I would be tempted to throw up my
hands and walk away, but we cannot do that. The stakes are too
high. No matter how many times we have to repeat this, I know
that both you and I and our colleagues on this Committee feel
too strongly about what is at stake here. The consequences of
this proposal will be indeed dire. We have debated them often.
As with most abortion-related legislation, this bill fails
to take into account the real life problems faced by real
people. Did the father rape the daughter? Why should that
rapist be allowed to profit financially from the crime?
According to this bill, the child's grandmother could go to
jail and the rapist could sue her, because in the language of
the bill he had been harmed by her action. Does the minor live
in a jurisdiction where judges never grant the constitutionally
mandated judicial bypass as is often the case?
How about this one? You can take the minor across State
lines if her life is in danger, but not if there is a danger
merely to her physical health, much less her mental health. How
much physical injury should a young woman be forced to endure
if her parents and local judges up for reelection are
indifferent? Sterility? Almost dying, but not quite? How life
threatening must the physical condition be before the court
will decide if the doctor guessed right?
Parents want to be involved with their children, especially
in these very dire situations, and children overwhelmingly
involve their parents. But real life is messy. This bill will
only compound the human tragedies of these situations.
Let me make a couple of practical comments. This bill
criminalizes transporting a minor across State lines for the
purpose of getting an abortion. What does ``transport'' mean?
Well, presumably, if I'm driving the car and she's sitting next
to me, I'm transporting her. What if, as we cross the State
line, we switch and she's driving the car? Then she's
transporting me. So in other words, this bill will only affect
people who are driving but not people who are sitting next to
her if she's driving. Does that make a hell of a lot of sense?
Excuse me. Does that make a heck of a lot of sense?
I would submit that this bill has not been very thought out
and cannot be very well thought out because it ultimately does
not make sense.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you. Would the gentleman yield for a
moment?
Mr. Nadler. Sure.
Mr. Chabot. I know the gentleman is tired of taking this
bill up, and if the gentleman would join me in encouraging our
colleagues over in the Senate to take up this bill and have a
vote on the floor, perhaps we could, since we have passed it
here several times before, perhaps we wouldn't have to take it
up in the next Congress.
Mr. Nadler. Reclaiming my time, Mr. Chairman. I'm not that
tired. [Laughter.]
Mr. Chabot. Okay, thank you. The gentleman's time is
expired.
The panel that we have here this afternoon, we have a very
distinguished panel. Our first witness is Mrs. Joyce Farley, a
mother from Pennsylvania who will share with us her own
experience surrounding her minor daughter's experience in this
area, and abortion.
Our second witness is Mark D. Rosen, Associate Professor of
Law at Chicago-Kent College of Law. Prior to joining the
Chicago-Kent faculty, Professor Rosen was a Bigelow Fellow and
lecturer in law at the University of Chicago Law School. From
1994 to '97, he was an attorney at the law firm of Foley, Hoag,
Eliot in Boston, where he focused on complex Federal court
litigation. Professor Rosen teaches constitutional law, State
and local government law, conflicts of law and contracts.
Our third witness is the Reverend Lois M. Powell. Reverend
Powell is the 2004-2005 Chair of the Board of Directors of the
Religious Coalition for Reproductive Choice. Reverend Powell is
an ordained minister in the United Church of Christ and team
leader for the United Church of Christ Human Rights, Justice
for Women, and Transformation Ministry Team. Prior to becoming
the team leader in 2000, Reverend Powell was Executive Director
of the church's Coordinating Center for Women in Church and
Society. From 1989 to '97, Reverend Powell was Pastor of the
United Church of Tallahassee.
Our final witness is Professor Teresa Stanton Collett. From
1990 to 2003 Professor Collett was a Professor of Law at South
Texas College of Law, where she taught various legal courses.
Since 2003 she has served as a Professor of Law at University
of St. Thomas College of Law, teaching bioethics, property and
professional responsibility. Professor Collett has also served
as a visiting professor at Notre Dame Law School, Washington
University School of Law in St. Louis, Missouri, the University
of Texas School of Law, the University of Houston Law Center,
and the University of Oklahoma College of Law. Prior to joining
South Texas College of Law, Professor Collett was affiliated
with the law firm of Crowe & Dunlevy in Oklahoma City,
Oklahoma.
We welcome all of our witnesses here this afternoon, and it
is the practice of the Committee to swear in all witnesses
appearing before it. So if you would all please rise. Raise
your right hand.
[Witnesses sworn.]
Mr. Chabot. Thank you very much. We'll begin with Mrs.
Farley. I wanted to note some of you have testified before, as
the Ranking Member mentioned, but we have a 5-minute rule, and
there is a light system there that will be on the desk in front
of you. The yellow light will come on when there's 1 minute of
the 5 minutes left, and then the red light will come on when
the 5 minutes is up, and we would ask that you try to keep your
comments within the 5 minutes if at all possible. We will give
you a little leeway, but not too much.
Mrs. Farley, you are recognized for 5 minutes.
TESTIMONY OF JOYCE FARLEY, VICTIM, DUSHORE, PA
Ms. Farley. Good afternoon, Members of the U.S. House of
Representatives. My name is Joyce Farley, and I am a resident
of the State of Pennsylvania.
Mr. Chabot. Would you pull that mike just a little bit
closer to you? Thank you. That whole box will move if you want
to move it.
Ms. Farley. I have been asked to come before you today to
explain why I support the Child Custody Protection Act.
About this time in 1995, my then 12-year-old daughter,
Crystal, was intoxicated and raped by a 19-year-old male who
she had met after entering the local high school as a 7th grade
student. I was aware of this male trying to befriend my
daughter and had requested that he not call or visit at the
house. This male had a reputation of seeking out the 7th grade
females to establish relationships for sex, and unfortunately,
Crystal had become one of his victims. This male is currently
in prison for a similar rape conviction.
Unfortunately, many perpetrators have more than one victim.
I was at the time and still am a mother working full time away
from home. Both parents working full time or single-parent
families are not unusual in our society and why your support of
the Child Custody Protection Act is so important. People of our
Nation need to know that our children are a blessing, and that
we will protect them from harm.
On August 31st, 1995, I discovered my 13-year-old daughter,
Crystal, was missing from home. An investigation by the police,
school officials and myself revealed the possibility that
Crystal had been transported out of State for an abortion. I
can't begin to tell you the fear that enveloped me not knowing
where my daughter was, who she was with, if she was in harm's
way, and to learn in this manner that my young daughter was
pregnant.
By early afternoon Crystal was home safe with me, but so
much had taken place in that one day. The mother of this 19-
year-old male had taken Crystal for an abortion in the State of
New York. Apparently, this woman decided this was the best
solution for the situation caused by her son, with little
regard for the welfare of my daughter.
Situations such as this is what the Child Custody Act was
designed to help prevent. I am a loving, responsible parent,
whose parenting was interfered with by an adult unknown to me.
My child was taken for a medical procedure to an unknown
facility and physician without my permission.
When Crystal developed complications from this medical
procedure, this physician was not available. He refused to
supply necessary medical records to a physician that was
available to provide Crystal the medical care she needed.
I ask you to please, in considering the Child Custody
Protection Act, to put aside your personal opinions on
abortion. Please just consider the safety of the minor children
of our Nation whose lives are put at risk when taken out of
their home State to avoid abortion laws that are designed to
protect them from harm. Please don't allow harm to our children
in order to protect abortion or any other medical procedure.
Please allow loving, careful and responsible parents the
freedom to provide the care their adolescent daughters need
without interference from criminals or people who think they
may be helping, but actually cause more harm than good.
An abortion is a medical procedure with physical and
emotional risks. An adolescent who's had an abortion needs the
care and support of family. Crystal, unfortunately, developed
both physical and emotional side effects. Some of the effects
are still present today after 9 years have lapsed.
In many ways time is a great healer, but as imperfect human
beings we don't always realize the effect of our actions of how
deep the physical and emotional scars actually dwell. The Child
Custody Act will prevent an abortion decision that is based on
fear of disappointing parents. It may discourage the use of
abortion to hide criminal activity such as rape and statutory
rape. For those who think they are just helping, they may
realize that an abortion is a serious situation, and just
providing an adolescent a ride for an abortion is not the
answer.
I urge you again to help avoid the scarring of America's
adolescent girls by voting in favor of the Child Custody
Protection Act.
Thank you.
[The prepared statement of Ms. Farley follows:]
Prepared Statement of Joyce Farley
Good afternoon members of the U.S. House of Representatives. My
name is Joyce Farley and I am a resident of the state of Pennsylvania.
I have been asked to come before you today to explain why I support the
``Child Custody Protection Act.''
Just about this time in 1995, my then 12-year-old daughter Crystal
was intoxicated and raped by a 19 year old male who she had met after
entering the local high school as a 7th grade student. I was aware of
this male trying to befriend my daughter and had requested that he not
call or visit at the house. This male had a reputation of seeking out
the 7th grade females to establish relationships for sex and
unfortunately Crystal had become one of his victims. This male is
currently in prison for a similar rape conviction. Unfortunately many
perpetrators have more than one victim. I was at the time and still am
a mother working full time away from home. Both parents working full
time or single parent families are not unusual in our society and why
your support of the ``Child Custody Act'' is so important. People of
our nation need to know that our children are a blessing and that we
will protect them from harm. On August 31 1995, I discovered my 13-
year-old daughter Crystal was missing from home. An investigation by
the police, school officials, and myself revealed the possibility that
Crystal had been transported out of state for an abortion. I can't
begin to tell you the fear that enveloped me not knowing where my
daughter was, who she was with, if she was in harms way, and to learn
in this manner that my young daughter was pregnant. By early afternoon
Crystal was home safe with me, but so much had taken place in that one
day. The mother of this 19-year-old male had taken Crystal for an
abortion in the state of New York. Apparently this woman decided this
was the best solution for the situation caused by her son with little
regard for the welfare of my daughter. Situations such as this is what
the ``Child Custody Act'' was designed to help prevent. I am a loving
responsible parent in whose parenting was interfered with by an adult
unknown to me. My child was taken for a medical procedure to an unknown
physician and facility without my permission. When Crystal developed
complications from this medical procedure this physician was not
available. He refused to supply necessary medical records to a
physician that was available to provide Crystal the medical care she
needed. I ask you to please in considering the ``Child Custody
Protection Act'' to put aside your personal opinions on abortion.
Please just consider the safety of the minor children of our nation
who's lives are put at risk when taken out of their home state to avoid
abortion laws, that are designed to protect them from harm. Please
don't allow harm to our children in order to protect abortion or any
other medical procedure. Please allow loving, caring, and responsible
parents the freedom to provide the care their adolescent daughters need
without interference from criminals or people who may think they are
helping, but actually cause more harm than good. An abortion is a
medical procedure with physical and emotional risks. An adolescent who
has had an abortion needs the care and support of family. Crystal
unfortunately developed both physical and emotional side effects. Some
of the effects are still present today after 8 years have lapsed. In
many ways time is a great healer but as imperfect human beings we don't
always realize the effect of our actions or how deep the physical and
emotional scars actually dwell. The ``Child Custody Act'' will help
prevent an abortion decision that is based on fear of disappointing
parents. It may discourage the use of abortion to hide criminal
activity such as rape and statutory rape. For those who think they are
``just helping,'' they may realize that an abortion is a serious
situation and just providing an adolescent a ride for an abortion is
not the answer. I urge you again to help avoid the scarring of
America's adolescent girls by voting in favor of the ``Child Custody
Protection Act.''
Thank you.
Mr. Chabot. Thank you, Ms. Farley.
Professor Rosen, you're recognized for 5 minutes.
TESTIMONY OF MARK D. ROSEN, ASSOCIATE PROFESSOR (WITH TENURE),
CHICAGO-KENT COLLEGE OF LAW
Mr. Rosen. Thank you very much, Mr. Chairman.
I've been asked to opine as to whether Congress has the
authority to enact this piece of legislation. I believe that
Congress clearly does. It's authorized, in my view, under both
the Commerce Clause and under the Effects Clause of the Full
Faith and Credit Clause, and furthermore, there are not
independent federalism right to travel or extraterritoriality
limitations on Congress's power. This is just to say Congress,
in my view, has the power. It's purely a political question
that's not foreclosed by the Constitution.
With regard first to the Commerce Clause, the United States
Supreme Court has upheld the Mann Act, which in some respects
is very similar to this. It's an Act that barred the
transportation of persons across State lines. The Court found
that that power of Congress came from Congress's authority to
regulate interstate commerce, regulate interstate commerce, and
that holding would clearly apply here. Since the Mann Act was
upheld, the United States Supreme Court held in the Morrison
case that Congress's powers may well be limited with respect to
matters that are truly local, and the Court there indicated
that family law matters might be truly local. I don't believe
that this Act would run afoul of Morrison's limitations,
however, because this Act has not prescribed a substantive rule
with regard to family law.
What it does instead is it determines the extent of one
State's legislative authority with regard to family law,
namely, whether when a minor, who comes from a State with a
parental notification law, is found in a State without a
parental notification law, which law governs? And it seems to
me that determining the scope of States' legislative authority
is not only something that's not truly local, but it's
something that is quintessentially a Federal function.
So I don't believe there are Commerce Clause limitations. I
think Congress has the power under the Commerce Clause.
Furthermore, in my view, Congress has the power under the
Full Faith and Credit Clause, and particularly the Effects
Clause. The Effects Clause gives Congress the power to
prescribe the effect of State laws, and that's what this law
does in effect. It says, as I mentioned before, that a minor
from a State that has parental notification law, who is in a
State without, is going to be governed by the law of her home
State. The United States Supreme Court has indicated many times
in dicta that the Congress has the power under the Effects
Clause to prescribe the extra-state effects of one State's law,
and again, that's what's happening here.
So in my view, Congress has power under either the Commerce
Clause or the Full Faith and Credit Clause to enact this.
It has been claimed by some that this legislation would run
afoul of some extraterritoriality limitations that the States,
some believe, have. Number one, I believe that the view that
States have no power to regulate their citizens out--when their
citizens are outside of their territories is a mistaken one,
and in fact, scholarly restatements of the law, including the
model penal code, recognized that States have the power to
regulate even criminally the activity of their citizens when
they're in other States.
Furthermore, even if States did not have that power,
Congress has the power to extend States' regulatory authority.
So under the Effects Clause, as I've mentioned, the Court, on
more than one occasion, has said that Congress has the power to
regulate the extra-state effects of one State's regulations. So
there you go.
Similarly, with regard to the dormant Commerce Clause,
Congress, in many respects, has the power again to extend
regulatory authority that States wouldn't have on their own. So
for instance, ordinarily States cannot discriminate against the
goods that come from other States, but Congress, when it acts
pursuant to the Commerce Clause, is able to bypass that and to
allow States to discriminate against articles that are goods
from other States.
So it seems to me that States have the extraterritorial
authority to regulate their citizens, and even if they didn't,
Congress clearly has the power to extend that regulatory
authority, as Congress is doing here.
It's also been claimed that this Act would run afoul of
federalism limitations, and I don't believe that's necessarily
the case. Under certain conceptions of federalism, this Act
might be inconsistent. However, my own view is that one of the
great benefits of federalism is that with respect to policies
that are not foreclosed by the Federal constitutional law or
Federal statutory law, there can be diversity of approaches
that States take, and when you have a law that by its nature
can readily be circumvented through travel, as parental
notification laws can be, then a Federal statute that helps to
ensure the efficacy of constitutional policies does not
undermine federalism, but it helps to enhance the diversity
across States with regard to policies that they're able to
pursue.
I have a few more seconds, but I think I'll stop here.
Thank you.
[The prepared statement of Mr. Rosen follows:]
Prepared Statement of Mark D. Rosen
The Subcommittee has asked that I testify concerning Congress'
power to enact H.R. 1755, the Child Custody Protection Act. I teach and
write in the fields of constitutional law, choice-of-law, and state and
local government law. Federalism is one of my principal interests.
The proposed legislation would make it a federal crime to knowingly
transport ``a minor across a State line, with the intent that such
minor obtain an abortion, and thereby in fact abridge[] the right of a
parent under a law requiring parental involvement in a minor's abortion
decision, in force in the State where the minor resides . . .'' I
believe that Congress has authority to enact this law under the
Commerce Clause and the Full Faith and Credit Clause. In my view, H.R.
1755 is fully consistent with principles of federalism, and is not
inconsistent with the right to travel or constitutional limitations
connected to abortion rights. My testimony should not be construed as
an argument in favor of the enactment of the Child Custody Protection
Act. I only hope to establish that Congress is not constitutionally
foreclosed from enacting such legislation, and that deciding whether to
enact it accordingly is a political decision.
I. THE COMMERCE CLAUSE
Congress has the power to enact H.R. 1755 under its Commerce Clause
powers.\1\ H.R. 1755 is a regulation of commerce among the several
States. ``The transportation of passengers in interstate commerce, it
has long been settled, is within the regulatory power of Congress,
under the commerce clause of the Constitution . . .'' \2\ The power to
regulate the transport of passengers is derived from Congress' powers
over the ``channels of interstate commerce,'' \3\ and recent Supreme
Court case law continues to hold that ``Congress may regulate the use
of the channels of interstate commerce.'' \4\ Because transportation
itself qualifies as interstate commerce, it is not necessary to
consider whether H.R. 1755 regulates ``activities having a substantial
relation to interstate commerce,'' \5\ that is to say, activities that
themselves are not commerce but that ``substantially affect interstate
commerce.'' \6\
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\1\ The analysis that follows in this first section of my testimony
is in substantial agreement with the testimony of Professor John C.
Harrison, which was provided to this Subcommittee in respect of H.R.
1755's predecessor of H.R. 1218. See Statement of John C. Harrison,
Professor of Law, University of Virginia, H.R. Rep. No. 106-204 (June
25, 1999).
\2\ Caminetti v. United States, 242 U.S. 470, 491 (1917).
\3\ Id.
\4\ United States v. Lopez, 514 U.S. 549, 558 (1995).
\5\ Id. at 558-59.
\6\ Id. It is with respect to this category of regulations that the
Supreme Court has limited congressional power in successive cases. See
Lopez, 514 U.S. at 567-68; United States v. Morrison, 529 U.S. 598,
617-18 (2000).
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It is well established that Congress can adopt rules concerning
interstate commerce, such as H.R. 1755, even if Congress is primarily
motivated by non-economic goals.\7\ The Court recently has warned that
Congress cannot ``use the Commerce Clause to completely obliterate the
Constitution's distinction between national and local authority,'' and
has referred to the ``family law context'' as an area of ``traditional
state regulation.'' \8\ H.R. 1755 would not run afoul of such commerce
clause limitations because the proposed legislation supports rather
than obliterates state and local authority by seeking to counter the
circumvention of a class of state laws. In relation to the Court's
concern that Congress not ``completely obliterate the Constitution's
distinction between national and local authority,'' \9\ it is critical
that H.R. 1755 operates not by creating a substantive rule regarding
family law but by sorting out a choice-of-law problem by indicating
which state's substantive law is to govern under a certain context.\10\
Determining the appropriate scope of a state's family law does not
obliterate the distinction between what is national and local. To the
contrary, sorting out the scope of states' competing regulatory efforts
is a perfectly appropriate function for the federal government to serve
that helps to govern the relationships among states, thereby securing
the ``horizontal federalism'' component of our federal system. The next
section more fully elaborates these points concerning the proposed
legislation's choice-of-law character.
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\7\ See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241 (1964) (upholding enactment of Title II of the Civil Rights
Act under Congress' commerce clause power); see also Caminetti, 242
U.S. at 491 (it is ``within the regulatory power of Congress, under the
commerce clause of the Constitution . . . to keep the channels of
interstate commerce free from immoral and injurious uses . . .'').
\8\ Morrison, 529 U.S. at 615-18. The Morrison Court discussed
these limitations with regard to an analysis of congressional power to
regulate matters that themselves are not commerce but that
``substantially affect interstate commerce.'' It is possible that these
limitations would not be applied at all to regulations of interstate
commerce itself, such as H.R. 1755.
\9\ Morrison, 529 U.S. at 615.
\10\ Determining which of two competing states' laws is to apply
necessarily means that one state's law will be deemed inapplicable, but
resolving choice-of-law problems is fundamentally different from
displacing state law with a substantive federal rule. To illustrate, a
substantive federal rule would govern all scenarios within a given
state. A choice-of-law rule such as H.R. 1755 does not displace the
visited state's law, which does not require parental notification, but
only indicates a class of persons to whom that law may not be applied.
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II. THE ``EFFECTS CLAUSE'' OF THE FULL FAITH AND CREDIT CLAUSE
Wholly independent of the Commerce Clause, Congress has the power
to enact H.R. 1755 under the Effects Clause, which is part of the Full
Faith and Credit Clause.\11\ A clear understanding of the type of issue
that H.R. 1755 addresses facilitates recognition why it falls within
Congress' powers under the Effects Clause. The general question H.R.
1755 addresses is whether a person Z who resides in State A remains
subject to a particular State A law when she is in State B. The
determination of which of several states' law applies to a particular
person, transaction, or occurrence is made by what is known as
``choice-of-law'' doctrines. At its core, H.R. 1755 is a federal
choice-of-law rule. It determines which law governs a minor from a
parental notification state who is visiting a state without such a
requirement.
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\11\ See U.S. Const. Art. IV, Sec. 1.
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Under contemporary law, virtually all choice-of-law doctrines are a
matter of state law. For almost a century, however, it has been
vigorously argued by many legal scholars that choice-of-law is more
appropriately a matter of federal law.\12\ This conclusion is sensible
because choice-of-law regulates the regulatory reach of each state, and
it is unwise to leave resolution of this question to the states
themselves; allowing each state to answer the question is akin to
asking the fox to guard the proverbial henhouse. Quite apart from the
normative question of whether choice-of-law should be federal law,
virtually all legal scholars are of the view that Congress has
authority under the so-called ``Effects Clause'' of the Full Faith and
Credit Clause to enact choice-of-law rules.\13\ That provision grants
Congress the power to enact ``general Laws'' that ``prescribe . . . the
effect'' that one state's laws shall have in other States.\14\ Indeed,
the Supreme Court on several occasions has observed in dicta that
Congress has the power to enact choice of law rules under the Effects
Clause.\15\
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\12\ See, e.g., Douglas Laycock, Equal Citizens of Equal and
Territorial States: The Constitutional Foundations of Choice of Law, 92
Colum. L. Rev. 249, 301 (1992); Michael Gottesman, Draining the Dismal
Swamp: The Case for Federal Choice of Law Statutes, 80 Geo. L.J. 1
(1991); Walter Wheeler Cook, The Powers of Congress under the Full
Faith and Credit Clause, 28 Yale L. J. 421, 425-26 (1919).
\13\ See U.S. Const. Art. IV, Sec. 1, cl. 2 and sources cited above
at footnote 12.
\14\ The Full Faith and Credit's term ``public Acts'' long has been
understood to refer to legislation.
\15\ For example, in Sun Oil v. Wortman, 486 U.S. 717 (1986), the
Court decided that a forum state that was constitutionally obligated to
apply non-forum law nonetheless could apply the forum state's statute
of limitations. The Court rejected the modern view that statute of
limitations are substantive, which would have led to the conclusion
that the non-forum's statute-of-limitations had to be applied, and
instead held that the historical understanding that statute of
limitations are procedural governed for purposes of the Full Faith and
Credit Clause. Id. at 728-29. The Court nonetheless went on to state
that ``[i]f current conditions render it desirable that forum States no
longer treat a particular issue as procedural for conflict of laws
purposes . . . it can be proposed that Congress legislate to that
effect under the second sentence of the Full Faith and Credit Clause.''
Id. at 729.
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Congress is authorized to enact a choice-of-law rule such as H.R.
1755 under the Effects clause. Dictum in a plurality opinion has stated
that ``there is at least some question whether Congress may cut back on
the measure of faith and credit required by a decision of this Court.''
\16\ H.R. 1755 is not inconsistent with this dictum \17\ because the
Supreme Court does not currently interpret the Full Faith and Credit
Clause as dictating which substantive law one state must apply.
Contemporary full faith and credit case law permits a state to apply
its law if there is a ``significant contact . . . creating state
interests, such that choice of its law is neither arbitrary nor
fundamentally unfair.'' \18\ The Court's full faith and credit rule
would permit the minor's state of residence to apply its law to the
minor's activity in a sister state on account of the state of
residence's continuing interests in protecting the parent's rights to
``consult with [their daughter] in private, and to discuss the
consequences of her decision in the context of the values and moral or
religious principles of their family.'' \19\ The proposed legislation
hence does not contradict the case law, but specifies which state's law
applies in a circumstance where Supreme Court case law has left the
question unanswered.\20\
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\16\ 448 U.S. 261, 272 n. 18 (1980) (plurality). The plurality
opinion's comments are dictum because the Thomas case did not analyze
the scope of a congressional enactment under the Effects clause, but
instead concerned the question of whether one state must give res
judicata effect to a workmen's compensation claim that had been issued
by another state's administrative agency. Id. at 286. The plurality
opinion in Thomas also opined that ``Congress clearly has the power to
increase the measure of faith and credit that a State must accord to
the laws or judgments of another State . . .'' Id.
\17\ This is not to suggest that I believe that Congress would be
without the authority to do so, but only that H.R. 1755 does not raise
the difficult question of whether Congress has authority under the
Effects Clause to specify different full faith and credit rules than
the Supreme Court has. See infra note 20.
\18\ Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 819 (1985)
(internal quotation omitted).
\19\ Planned Parenthood v. Casey, 505 U.S. 833, 899-900 (1992).
\20\ The Supreme Court has recognized that its full faith and
credit test allows more than one state's law to apply to a given
person, transaction, or occurrence Sun Oil Co. v. Wortman, 486 U.S.
717, 727 (1988).
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I recognize that it could be argued that H.R. 1755 dilutes ``the
measure of faith and credit required by a decision of this Court,''
Thomas, 448 U.S. at 272 n. 18, insofar as it could be argued that the
visited state could apply its law under the Court's jurisprudence and
H.R. 1755 in effect says that it cannot. There are two responses to
this claim. First, case law that permits the application of two or more
states' laws does not qualify as determining ``the measure of faith and
credit required by a decision of this Court.'' Id. at 272 n. 18
(emphasis supplied). Rather, the case law leaves undecided the question
of what measure of full faith is required of another state's law.
Second, it is conceptually incoherent to suggest that Congress lacks
the power under the Effects Clause to ``dilute'' the effect of a
state's law or judgment because determining that one state's law or
judgment is to be given effect is to simultaneously decide that a
sister state's law or judgment is not to be given effect and thereby
dilutes the effect of that second state's law or judgment. Professor
(now Judge) Michael McConnell has advanced this argument, see Hearing
on S. 1740 Before the Senate Comm. on the Judiciary, 104th Cong. 57-58
(1996), and I believe it to be incontrovertible. If a dilution
limitation as applied to the Effects Clause truly is incoherent, then
the plurality's dictum in the Thomas case should be resisted.
H.R. 1755 does not appear to exceed Congress's powers under the
Effects Clause in any other respects. Although H.R. 1755 provides a
choice-of-law rule only with regard to parental notification
requirements, the Effects Clause's language authorizing the enactment
of ``general Laws'' has not prevented Congress from enacting subject-
specific legislation in the past under the Effects Clause.\21\ Indeed,
there are strong reasons to believe that intelligent choice-of-law
rules must be context-specific rather than trans-substantive, and that
construing ``general Laws'' so as to disallow Congress from making
subject-matter sensitive choice of law rules would jeopardize Congress'
ability to create efficacious choice-of-law rules.\22\ Because Congress
has passed legislation pursuant to the Effects Clause only a handful of
times, the Supreme Court has not had the opportunity to significantly
develop the contours of Congress's Effects Clause powers. Although this
means that analysis of Congress's powers under the Clause necessarily
is speculative, such uncertainty is not a reason for Congress to avoid
relying on the Effects Clause; after all, in view of Article III's
``case or controversy'' requirements, it is only by invocation of the
Clause and subsequent judicial challenges that the scope of
congressional power can ever be worked out. With all this in mind, a
plausible limitation is that the Effects Clause not be used by Congress
willy nilly to champion those substantive policies that it favors.\23\
A feasible judicial check to ensure that Congress does not abuse its
Effects Clause powers in this regard is to require that Congress'
choice-of-law rule be reasonably consistent with general choice-of-law
principles.\24\ H.R. 1755 readily would pass such a test because the
conclusion that the law of the minor's residence should govern is
consistent with contemporary choice-of-law doctrines.\25\ That is to
say, a congressional determination that the minor should be governed by
her home state's law is reasonable.
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\21\ See Parental Kidnaping Prevent act of 1980, 28 U.S.C.
Sec. 1738A; Full Faith and Credit for Child Support Orders Act of 1994,
28 U.S.C. Sec. 1738B; Violence Against Women Act's full faith and
credit provision, 18 U.S.C. Sec. 2265 (requiring sister States to
recognize and enforce a valid protection order issued by another
state).
\22\ Under all variants of modern interest analysis, choice-of-law
is not conceptualized as a distinct body of ``procedural'' law but
instead is largely a function of substantive law. The common ground of
interest analysis is the effort to ascertain whether each of the
multiple jurisdictions whose law potentially applies in fact has a
governmental interest in applying its law to the facts at hand; if only
one polity has an interest then there is a ``false conflict'' and only
that jurisdiction's law is to be applied. See David P. Currie, Herma
Hill Kay, Larry Kramer, Conflict of Laws: Cases, Comments, Questions
132-33 (West Group 2001). The determination of whether there is a
``false conflict'' is made by considering the purpose of each state's
substantive law, and asking whether the legislature would have wished
to regulate the party, transaction, or occurrence. The process of
deciding whether there is a false conflict hence involves ascertaining
the scope of substantive law of each potentially interested
jurisdiction. If this approach of first eliminating ``false'' conflicts
indeed is a genuine contribution of modern approaches to conflicts
analysis, then it would follow that efficacious choice-of-law doctrines
invariably will be a tied to substantive law. If Congress is to have
power under the Effects Clause to make efficacious choice-of-law
doctrines, then the Effects Clause must include the power to tailor
rules in a manner that is sensitive to the substantive law.
\23\ The reason for this limitation is as follows. The Full Faith
and Credit Clause seeks to accomplish the two somewhat mutually
inconsistent goal of bringing about a federal union of meaningfully
empowered States. See Baker v. General Motors Corp., 522 U.S. 222
(1998) (discussing the goal of creating a federal union); Pacific
Employers Ins. Co. v. Indus. Accident Commission, 306 U.S. 493, 502
(1939) (noting Full Faith and Credit's protection of each state's
sovereign interests). Congress appropriately has broad latitude when
legislating pursuant to the Effects Clause to decide how to harmonize
these competing policies. There is no indication, however, the Full
Faith and Credit Clause is an appropriate vehicle for Congress to foist
its policy preferences upon the States.
\24\ Such deferential review would be similar to the approach the
Court once took to reviewing congressional enactments pursuant to
Section 5 of the Fourteenth Amendment. See Katzenbach v. Morgan, 384
U.S. 641, 652-57 (1966). Although the Court no longer utilizes such
deferential review in relation to Congress' Section 5 powers, see City
of Boerne v. Flores, 521 U.S. 507 (1997), the more explicit grant of
independent congressional authority under the Effects Clause could well
lead the Court to utilize more deferential review in analyzing
legislation enacted pursuant to the Full Faith and Credit Clause.
\25\ Under classic interest analysis, the choice between the law of
the minor's residence and the law of the visiting state might be
characterized as a ``false conflict''--it would be said that the
visiting state has no interest in regulating non-citizens, whereas the
state of residence has a strong interest in regulating its citizen's
conduct--with the result that the home state's parental notification
law would be applied. Alternatively, the situation might be analyzed as
a ``true conflict,'' in which case the home state's law still might be
selected, depending upon the type of interest analysis that were used.
Under the approach advocated by Brainerd Currie, for instance, the home
state's law would be selected if the parents sued in a court located in
their state of residence. Under the Second Restatement of Conflict's
approach, a court could well conclude that the minor's home state is
the state with the most significant relationship to the matter and
hence the state whose law ought to apply. Even under traditional
approaches, the parental notification law might be construed as a
family law that accordingly is provided by the state of residence.
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The proposed legislation does not simply specify the effect of one
state's law, but also creates civil and criminal penalties for those
who transport a minor across a state border for the purpose of evading
her home state's parental notification law. The question is whether the
power to ``prescribe . . . the effect'' of the home state's parental
notification law includes the power to create such civil and criminal
penalties for those who facilitate the law's circumvention. While we
are without guidance from the Supreme Court in answering this specific
question, there are good reasons to believe that the answer is yes.
Congress has the power to ``make all Laws which shall be necessary and
proper for carrying into Execution'' the enumerated powers it has been
granted.\26\ If the ``end be legitimate'' then ``all means which are
appropriate, which are plainly adapted to that end'' are
constitutional.\27\ As shown above, the end of specifying the effect of
the home state's parental notification law is ``legitimate.'' The
question then becomes whether H.R. 1755's civil and criminal penalties
are ``appropriate'' and ``plainly adapted to that end.'' The Supreme
Court has been famously deferential to congressional judgments about
what means are appropriate to accomplishing legitimate ends,\28\ and it
seems plausible that measures of the sort found in H.R. 1755 are
``useful'' \29\ for ensuring that the home state's parental
notification laws will be given effect when the minor visits other
states. Given the dynamics of family relations, there are good reasons
to believe that there would be systematic evasion of parental
notification laws if parents' only legal recourse were a lawsuit
against their minor daughters who violated the parents' rights by
crossing a border to obtain an abortion.
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\26\ U.S. Const. Art. I., Sec. 8, cl. 18.
\27\ See McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316,
421 (1819).
\28\ See, e.g., Jinks v. Richland County, S.C., 123 S.Ct. 1667,
1671 (2003).
\29\ McCulloch, 17 U.S. at 413; see also id. at 419.
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III. CRITICAL EXAMINATION OF POSSIBLE CONSTITUTIONAL OBJECTIONS TO H.R.
1755
A. H.R. 1755 and Extraterritoriality
Some opponents of H.R. 1755 have argued that the proposed
legislation would give unconstitutional extraterritorial authority to
the resident state's law. There are three fatal flaws to any such
criticism. First, H.R. 1755 can be conceptualized as a federal law
extension to state law that functions to increase the state law's
efficacy. So understood, H.R. 1755 does not extend the operation of
state law extraterritorially, but simply is federal law that operates
across state borders, as federal law often does.
Second, the criticism that H.R. 1755 unlawfully extends state laws
is based on the misconception that one state's regulatory authority
ends at its borders. An early approach to choice-of-law believed that
territorial location alone answered the question of what law applies,
but this has been almost universally rejected in this country.\30\
Today, state laws regularly apply to persons, transactions, and
occurrences that occur outside the state's borders.\31\ Thus scholarly
restatements of the law and the Model Penal Code both understand that
states may regulate their citizens out-of-state activities, and may
even criminalize out-of-state activity that is permissible in the state
where it occurs.\32\
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\30\ See Currie, Et. Al., supra note 22, at 2-6.
\31\ For a comprehensive examination of states' powers to regulate
their citizens' out-of-state activities, see Mark D. Rosen,
Extraterritoriality and Political Heterogeneity in American Federalism,
150 U. Pa. L. Rev. 855 (2002).
\32\ The Restatement (Third) of Foreign Relations Law provides that
states ``may apply at least some laws to a person outside [State]
territory on the basis that he is a citizen, resident or domiciliary of
the State.'' Restatement (Third) of Foreign Relations Law Sec. 402
reporters' notes at 5 (1986). The Restatement asserts that this
principle applies to both extraterritorial criminal and civil
legislative powers. See id. at Sec. 403, comment f. The Reporters
Notes make clear that the Restatement understands that its principles
apply to the extraterritorial powers enjoyed by states within the
United States. See id. at Sec. 402 and Reporters' Notes 5.
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Directed to the criminal context, the Model Penal Code provides
that State A may impose liability if ``the offense is based on a
statute of this state that expressly prohibits conduct outside the
state.'' Model Penal Code Sec. 1.03(1)(f). The Model Penal Code
provides that State A has extraterritorial legislative jurisdiction
even if the activity it prohibits occurs in a State in which the
activity is permissible. Id. The major limitation identified by the
Model Penal Code is that the regulated conduct must ``bear[] a
reasonable relation to a legitimate interest of [the regulating]
state.'' Id. at Sec. 1.03(2). The Comment states that the ``reasonable
relation to legitimate interests'' requirement ``expresses the general
principle of the fourteenth amendment limitation on state legislative
jurisdiction.'' Id. at Sec. 1.03(1)(f).
Third, even if states lacked the power to regulate their citizens'
out-of-state activities under contemporary law, the Effects Clause and
the Commerce Clause both can serve to extend states' regulatory powers.
The Effects Clause gives Congress the power to alter the
extraterritorial effect that one state's public acts, records and
judicial proceedings have in other states. Thus before Congress enacted
the Violence Against Women Act's full faith and credit provision, it
was uncertain whether a protective order issued in State A would have
effect in State B, whose laws differed from State A such that no
protective order would be issued on the facts.\33\ The federal act
provided that State B was required to give effect to State A's
protective order.\34\ Similarly, while states on their own may not
enact protectionist legislation that disallows goods from other states
to cross their borders,\35\ the Commerce Clause allows Congress to
grant states such powers to discriminate against goods from other
states.\36\ As a structural matter, a federal government that umpires
the sister states' regulatory powers vis-a-vis one another is eminently
sensible, and several constitutional provisions--including the Effects
Clause and the Commerce Clause--empower Congress to serve this
function.
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\33\ See Emily J. Sack, Domestic Violence Across State Lines: The
Full Faith and Credit Clause, Congressional Power, and Interstate
Enforcement of Protection Orders, 98 Nw. U. L. Rev. 827 (2004).
\34\ See 18 U.S.C. Sec. 2265 (2000).
\35\ See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617
(1978).
\36\ See, e.g., New York v. United States, 505 U.S. 144, 171 (1992)
(``While the Commerce Clause has long been understood to limit the
States' ability to discriminate against interstate commerce, that
limitation may be lifted, as it has been here, by an expression of the
`unambiguous intent' of Congress.'') (internal citations omitted).
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B. Federalism and the Right to Travel
Some opponents of H.R. 1755 have argued that the Child Custody
Prevention Act would be inconsistent with constitutional principles of
federalism. To the contrary, I believe that H.R. 1755 is consistent
with a more attractive conception of federalism than these opponents
implicitly adopt.
States may have divergent substantive policies with respect to
those matters that are not violative of the United States Constitution
or displaced by federal law. Such diversity among states is one of the
frequently heralded benefits of our federal system. Many
constitutionally legitimate state laws, however, can be frustrated if
citizens can free themselves of their home state's legal requirements
merely by crossing a state border and availing themselves of their
neighboring state's varying law. This is true of constitutionally
permissible state laws that are paternalistic or that seek to protect
third-party interests. By undermining the efficacy of such state laws,
``travel-evasion'' in effect thwarts the diversity of state laws that
is theoretically permissible under our federal system.\37\ A law such
as H.R. 1755 supports diversity across states by ensuring that each
state can pursue efficacious policies in those realms that are not
foreclosed by the Constitution or other federal law. It is my view that
the diversity that federalism can afford is an affirmative good in a
country as large and diverse as ours.
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\37\ See Rosen, supra note 31, at 856-861.
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Those who assert federalism challenges to H.R. 1755 are working
with a different conception of federalism. They evidently are of the
view that although diversity across states is good, citizens should be
able to pick and choose the laws that are to govern them by traveling
to whatever jurisdiction's law they wish to govern them on an issue-by-
issue basis. Indeed, some opponents of H.R. 1755 have argued that H.R.
1755 interferes with minors' constitutional ``right to travel.'' At
least one noted scholar has advocated this type of position.\38\
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\38\ Seth F. Kreimer, ``But Whoever Treasures Freedom . . .'': The
Right to Travel and Extraterritorial Abortions, 91 Mich. L. Rev. 907,
915 (1993).
---------------------------------------------------------------------------
To begin, the notion that H.R. 1755 is inconsistent with the
constitutional right to travel is not supportable under the Supreme
Court's jurisprudence. Neither a state nor the federal government can
interfere with a citizens' ability to leave a state for the purpose of
visiting another State or prevent its citizens from returning; either
would violate ``the right of a citizen of one State to enter and to
leave another State.'' \39\ H.R. 1755 does not even implicate this
limitation, for it does not preclude the minor from traveling, and
indeed explicitly provides that a ``minor transported in violation of
this section . . . may not be prosecuted or sued for a violation of
this section.'' \40\ The minor's right to travel to another state is
wholly unimpeded by H.R. 1755.
---------------------------------------------------------------------------
\39\ See Saenz v. Roe, 526 U.S. 489, 500 (1999).
\40\ See Sec. 2431(b)(2).
---------------------------------------------------------------------------
Even if H.R. 1755's limitation on the transportation of minors were
deemed to implicate the minor's ability to enter and leave another
State, it is unlikely that this would be deemed by the Court to violate
her right to travel. The Court has recognized that the right to
interstate travel ``may be regulated or controlled by the exercise of a
State's police power'' and by the federal government as well.\41\ This
is perfectly consistent with the nature of most constitutional rights,
which virtually never establish categorical prohibitions on regulation
but instead heighten the requirements that must be satisfied for
regulation to be constitutional.\42\ Particularly relevant for present
purposes, the Court has ruled that other components of the
constitutional right to travel establish non-categorical rights. For
instance, what the Court has identified as the ``right to be treated as
a welcome visitor rather than an unfriendly alien when temporarily
present in the second State,'' \43\ an aspect of the right to travel
that the Court has tied to Article IV's Privileges and Immunities
Clause, does not establish an ``absolute'' right for a visitor to be
treated as citizens are.\44\ Rather, states are permitted to
distinguish between residents and nonresidents if ``there is a
substantial reason for the difference in treatment'' and the ``the
discrimination practiced against nonresidents bears a substantial
relationship to the State's objective.'' \45\ If the Court were to
utilize a similar test to determine whether a regulation impermissibly
interfered with ``the right of a citizen of one State to enter and to
leave another State,'' \46\ the questions would be whether Congress has
a substantial reason to proscribe the out-of-state transport of minors
for the purpose of circumventing the home state's parental notification
requirements and whether the imposition of civil and criminal penalties
for such transportation bears a substantial relationship to Congress'
objective. I believe that the answer to both questions vis-a-vis H.R.
1755 would be yes: Congress has a substantial reason to ensure that
constitutional state policies are not undermined through travel-
evasion, and, given the nature of family dynamics, civil and criminal
penalties on those who facilitate the transportation of minors bear a
substantial relationship to achieving Congress' objective.
---------------------------------------------------------------------------
\41\ United States v. Guest, 86 S. Ct. 1170, 1179 & n. 17 (1965).
\42\ For example, notwithstanding the First Amendment's categorical
statement that ``Congress shall make no law . . . abridging the freedom
of speech,'' Congress is constitutionally permitted to regulate speech,
even political speech. See, e.g., McConnell v. Federal Election
Commission, 124 S. Ct. 619, 660-61 (2003); see generally Richard H.
Pildes, Why Rights are not Trumps: Social Meanings, Expressive Harms,
and Constitutionalism, 27 J. Legal Stud. 725 (1998).
\43\ See Saenz, 526 U.S. at 500.
\44\ See id. at 489-502. This so-called ``second component'' of the
right to travel would not be implicated by H.R. 1755. This second
component limits the state that a citizen visits, but not her home
state. It is an equal protection type principle that limits the extent
to which the visiting state can treat visitors differently from its own
citizens, but it in no way affects the home state's power to regulate
its own citizens when they go out-of-state. See Slaughter-House Cases,
83 U.S. (16 Wall.) 36, 75-77 (1873) (the Privileges and Immunities
Clause of Article IV ``does not profess to control the power of the
State governments over the rights of its own citizens.''); see
generally Rosen, supra note 31, at 900-903. The third aspect of the
right to travel--``the right of the newly arrived citizen to the same
privileges and immunities enjoyed by other citizens of the same
State,'' Saenz, 119 S.Ct. at 1526--plainly is not implicated by H.R.
1755.
\45\ Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 298 (1998)
(internal quotations omitted).
\46\ See Saenz, 526 U.S. at 500.
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Apart from the claim that H.R. 1755 would violate the right to
travel refuted above, it still could be claimed that H.R. 1755 is
inconsistent with federalism. The claim is that federalism allows
diversity across states, but also requires that citizens be able to
travel to other states so as to be subject to that other state's laws
on an issue-by-issue basis. While such a claim is not illogical, it
reflects, in my view, a less compelling conception of federalism than
the diversity-supporting system that a law such as H.R. 1755
promotes.\47\ In any event, my point here is not to vindicate my
particular view of federalism, but to show that the argument that H.R.
1755 is flatly antithetical to federalism is groundless. Rather, the
proposed legislation's relationship to federalism is a function of what
conception of federalism one holds. The Supreme Court has not answered
this question. It is my view that answering this question is Congress'
prerogative, subject to only a highly deferential Supreme Court review.
---------------------------------------------------------------------------
\47\ ``Pick and choose'' federalism undermines diversity across
states by systematically disfavoring those state laws that are more
regulatory of their citizens than are other states' laws. ``Less
regulatory'' should not be confused with liberty-enhancing. Those
jurisdictions that wish to regulate more than their neighbor states do
so because they have differing notions of the public good. Indeed,
undermining laws that protect the rights of third-parties--as parental
notification laws are designed to do--undercut those third parties'
liberty interests. A fair way to decide between these competing
conceptions of federalism, it seems to me, is to perform a thought
experiment of the sort famously proposed by John Rawls. If one were
behind a ``veil of ignorance'' and did not know whether she represented
a libertarian (who chafed at regulation) or a regulationist who thought
that regulation frequently was good, what type of federalist system
would she opt for? It seems obvious to me that the favored federalist
system would be one that permitted meaningful diversity across states
with regard to those matters that federal constitutional and statutory
law did not demand national uniformity. For a more elaborate discussion
of this, see Rosen, supra note 31, at 882-91.
---------------------------------------------------------------------------
C. Abortion Rights
Finally, some have argued that H.R. 1755 is inconsistent with the
limitations on abortion that the Court has located in the Fourteenth
and Fifth Amendments. The Supreme Court has held that laws regulating
abortion must provide an exception for the ``preservation of the life
or health of the mother.'' \48\ H.R. 1755 provides an exception,
however, only ``if the abortion was necessary to save the life of the
minor.'' \49\ The bill's absence of an exception for the mother's
health nonetheless does not violate the Court's requirement because
H.R. 1755 piggybacks on state parental notification statutes. Assume
for present purposes that state parental notification statutes must
provide an exception for the health of the mother to be constitutional.
If the mother's health is endangered, state law cannot require parental
notification, and transportation of a minor across state lines \50\
consequently would not run afoul of H.R. 1755's prohibition. On the
other hand, if a state parental notification statute did not include an
exception for the health of the mother, then it would be
constitutionally invalid and for that reason could not provide the
predicate for liability under H.R. 1755. In short, because the state
law that H.R. 1755 operates in conjunction with state law that already
must contain a health exception to be valid, H.R. 1755 itself need not
contain such an exception. The absence of a health exception in H.R.
1755 does not render it inconsistent with the case law that defines
rights in relation to abortion because H.R. 1755 in effect incorporates
state parental notification laws, which must have an exception for the
health of the mother in order to trigger H.R. 1755's application.
---------------------------------------------------------------------------
\48\ Stenberg v. Carhart, 120 S. Ct. 2597, 2613 (2000) (emphasis
supplied).
\49\ See Sec. 2431(b)(1).
\50\ Such transportation would not, of course be necessary, since
an abortion without parental notification would be permissible in the
minor's home state under such circumstances.
---------------------------------------------------------------------------
IV. CONCLUSIONS
For the reasons discussed above, I am of the view that Congress has
power under the Full Faith and Credit Clause and under the Commerce
Clause to enact H.R. 1755. The bill is not flatly contrary to
principles of federalism, but rather is fully consistent with a
plausible conception of federalism. H.R. 1755 does not run afoul of any
constitutional limitations on state extraterritorial powers, nor is it
inconsistent with the right to travel or with the abortion rights that
the Court has located in the Fourteenth and Fifth Amendments.
In short, whether H.R. 1755 should be enacted is a purely political
question that is not foreclosed to the Congress by the Constitution.
Mr. Chabot. Thank you, Professor.
Reverend Powell, you're recognized for 5 minutes.
TESTIMONY OF LOIS M. POWELL, MINISTER, UNITED CHURCH OF CHRIST,
ON BEHALF OF THE RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE
Rev. Powell. Thank you, Mr. Chairperson, and gentlemen of
the Committee present. I am pleased to be able to testify
today. I am a person who has been counseling women facing
difficult decisions around pregnancies, unwanted pregnancies
since 1970. I have done that as a student in college and I have
done that as an ordained person in the United Church of Christ.
I am here to represent many people who are deeply disturbed
by the possibility that United States Congress might enact a
law that would jeopardize the health and the well-being of many
young women.
When a woman is young, of minor age, she too must be able
to determine what is best for her. Optimally, optimally, she
would be able to discuss this with her parents or her legal
guardian, and together they would come to agreement about what
path to take. And usually, young women do in fact discuss this
with their parents, even in States without parental consent or
notice laws. Of those young women who do not talk with their
parents when they are pregnant as teenagers, over half do in
fact involve a close adult relative or other responsible adult.
But unfortunately, we don't live in an optimal world. I am
here today to bring a human face and a human reality to the
potential effects of this Act.
Someone once said that statistics are human faces without
tears. As a pastor in Tallahassee, Florida, I extended
counseling support to parishioners who were faced with unwanted
and difficult pregnancy decisions, and also to clients at a
local women's clinic, who struggled particularly with spiritual
and religious aspects of these decisions.
In the capacity as a spiritual counselor to a 16-year-old
woman who had traveled from South Georgia to the clinic in
Tallahassee with her 20-year-old sister, I discovered that
these young women were conservative Christians. They were
members of a church, and their family were members of a church
that had taken a very strong and public visible anti-abortion
stance. The 16-year-old who was pregnant only had her older
sister to turn to, she felt, when she learned she was pregnant.
Neither felt that they could discuss this matter with their
parents because their parents had made their disapproval of
sexual activity before marriage abundantly clear, as had their
church. Their worst fear was that they would be removed from
this church, and in fact, abandoned by the faith they had known
from childhood. The Child Custody Protection Act would only
make this kind of a difficult situation even worse, possibly
driving a wedge between the daughters and their parents and
creating a lifelong breach in family communication.
Additionally, under this Act, the 20-year-old sister could
be charged with a felony for accompanying her younger sister
across State lines. And I ask you, is this just and is this
justifiable? Does not this kind of punitive law unduly burden
young women and place a formidable obstacle in the way of their
securing legal and safe reproductive health?
I assured this young woman and her sister that God had not
abandoned them and would remain with them always, and I
encouraged them to find a safe way eventually to discuss this
matter with their parents and restore family relationships.
Not one woman, whether a teen or adult woman, has the same
set of circumstances that she confronts, but we can never
forget that individual women, who themselves have been created
in the image of God, struggle in each and every instance.
This Act will not protect girl children, nor will it make
their struggles less difficult. It will make them even more
vulnerable in times of deep crisis. Only 14 percent of our
counties nationwide have abortion providers, and the majority
of women will have to travel at least to another county, but
the nearest abortion provider may in fact be across a State
line. If that woman is a minor and if she is terrified to tell
her parents because of a history of physical violence in the
family, or for the other real concerns, how is she going to get
there, alone, hitchhike, on a bus?
What if she had been raped by a father, as was the case
with Spring Adams, a sixth-grader in Idaho, who became
impregnated by her father and was forced by that State's
parental consent and notification law to tell her mother that
her father had raped her. The father then shot and killed her,
her mother and then himself. Are these the family values we are
to espouse?
Yes, parents are supposed to protect their children from
harm, and most do, but even in the most loving of parent-child
relationships harm can happen. Children who are close to their
parents may not know if the knowledge of a pregnancy will turn
parents against them. They don't know if God will leave them
alone or punish them. And so they are silent. Sometimes here is
violence in the household. So it is reasonable that they turn
to other adults whom they do trust and in whom they can
confide. It would be the role of that adult to help them
negotiate all of these matters, to help them make the best
decision possible for them, and to assist her in achieving what
she determines is best for her.
Should minors access the legal health care services be
compromised in any way? I don't think so. I worry about every
teenager who becomes pregnant, and I pray for the day when this
is a rare occurrence in our society. I pray for the day when
boy children are taught to respect girls, when they know that
while the consequences for themselves of having impregnated a
girl are different than they are for the girl, there are
consequences nonetheless for them. I pray for the day when
rape, statutory rape, date rape or stranger rape, that results
in a pregnancy, becomes the issue itself that our society is
forced to look at and must address, and not the resultant
pregnancy.
Parents do need to be involved in their children's lives.
We need to create a culture that encourages good parenting. Yet
I know from my years in ministry that not all parents are
equipped to be good parents.
Please do not support this Act. It is not really about
protecting children, but it is about governmental interference
in decisions of conscience that young people sometimes have to
make. May you continue to hold the names, faces and hearts of
those who would be most impacted by this Act, should it come to
pass, before you.
Thank you.
[The prepared statement of Reverend Powell follows:]
Prepared Statement of Reverend Lois M. Powell
Ladies and gentlemen of the Committee, thank you for the invitation
to speak with you today. My name is The Reverend Lois M. Powell, and I
currently serve on the national denominational staff of the United
Church of Christ in our Justice and Witness Ministries. I am also the
Chairperson of the Board of Directors of the Religious Coalition for
Reproductive Choice, the 31-year-old coalition of national religious
and religiously affiliated organizations from 15 denominations and
faith traditions, including the Episcopal Church, Presbyterian Church
(USA), United Methodist Church, Unitarian Universalist Association,
Christian Church (Disciples of Christ), Reform and Conservative
Judaism, and my own denomination. Together, the denominations and
traditions in the Coalition have more than 20 million members.
I am here today as a person who has counseled women facing unwanted
or unintended pregnancies since 1970, when I started as a peer
counselor with a campus chapter of Planned Parenthood at my college. I
am here today to represent many people of faith who are disturbed by
the possibility that the United States Congress might enact a law that
would jeopardize the health and well being of minor young women. Since
1969, the United Church of Christ has supported the right of women to
determine their reproductive health. Since 1973, it has consistently
opposed efforts to limit or eliminate full access to these legal rights
for any woman facing an unintended or unwanted pregnancy regardless of
age or income. A majority of persons of faith in the United States--
74%, in fact, according to a national survey conducted in 2000 by Lake
Snell Perry and Associates--believe that these very private decisions
are best made by the woman in accord with her religious and ethical
beliefs, and her God.
When the woman is young, a minor, she, too, must be able to
determine what is best for her. Optimally, she would be able to discuss
this with her parents or legal guardian and together they would come to
agreement about what path to take. Usually young women do involve their
parents, even in states without mandatory parental consent or notice
laws. Of those young women who did not involve a parent in their
decision, over half involved a close relative or other responsible
adult. (Stanley K. Henshaw and Kathryn Kost, Parental Involvement in
Minors' Abortion Decisions, 24 Family Planning Perspectives 199--200,
207 [1992])
But we do not live in an optimal world. I am here today to bring a
human face, a human reality to the potential effects of this Act. In
the pre-Roe v. Wade era, when I began counseling women facing unwanted
or unintended pregnancies with a campus chapter of Planned Parenthood,
those who chose to terminate a pregnancy were referred to a member of
the clergy in the Clergy Consultation Services, a network of ministers
and rabbis who offered all-options counseling before referring women to
places where safe abortions could be obtained. (In 1970, that place was
the State of New York, which had made abortion legal that year.) In
many cases, they did so in order to save the lives of women who might
otherwise take desperate measures to end their pregnancies, attempts
that often ended in death or the inability to have children at all.
Someone once said that statistics are human faces without the
tears. After I was ordained in 1978, I continued to provide counseling
and support to women struggling with whether or not terminate a
pregnancy. As a pastor in Tallahassee, Florida, I extended this support
to parishioners and to clients at a local women's clinic who struggled
particularly with spiritual and religious issues. Currently, I receive
an occasional request to counsel women who have contacted the Ohio
Affiliate of the Religious Coalition for Reproductive Choice with a
desire to talk with a minister.
While in Tallahassee, I counseled a 16-year-old woman at the clinic
who had traveled from South Georgia with her 20-year-old sister. These
sisters had grown up in a conservative Christian church that had a
strong and publicly visible anti-abortion position. The 16-year-old had
only her sister to turn to for support when she learned she was
pregnant. Both felt they could not talk to their parents about the
pregnancy because their parents had made their disapproval of sexual
activity abundantly clear. Their church was a very important part of
their family and community life, and the sisters were terrified at the
prospect of public humiliation and shame that could fall upon the
entire family if it became known that a member of the family had an
abortion. Their worst fear was that they could be removed from this
church and, in effect, abandoned by the faith they had known from
childhood. The Child Custody Protection Act would only make this
difficult situation worse. It would drive a wedge between the daughters
and parents and could cause a lifelong breach in family communication.
Under the Child Custody Protection Act, the 20-year-old sister
would be a federal criminal for accompanying her younger sister across
state lines for an abortion. I ask you, is this just? Does not this
kind of punitive law unduly burden young women and place a formidable
obstacle in the way of their securing legal and safe reproductive
health care?
I assured this young woman, and her sister, that God had not
abandoned them but would remain with them always. I encouraged them to
find a way--eventually--to talk with their parents but not without a
supportive third person who could mediate on their behalf. I also
encouraged them to find a counselor close to where they lived who would
be able to offer emotional support in a non-judgmental manner should
any issues arise when they returned home. This young woman did decide
to have an abortion but many of the same questions and issues would
have applied if she had decided to carry the pregnancy to term.
Statistics are human faces without the tears. Not one woman has the
same story or set of circumstances as any another woman. Each situation
is unique, shaped by the nuances of her religious background, her
family setting, her finances, her emotional and psychological maturity,
and other factors too complex and diverse to enumerate. Some women
under the age of 18 are already mothers, some only want to finish high
school. Some choose to terminate their pregnancy, some choose to carry
their pregnancy to term. We can never forget that individual women, who
themselves have been created in the image of God, struggled in each and
every instance.
The Child Custody Protection Act will not protect girl children or
make their struggle less difficult. It will make them even more
vulnerable during a time of crisis. When only 14% of all counties
nationwide have an abortion provider, a majority of women seeking to
exercise their legal rights to full reproductive health care will have
to travel at least to another county. The closest provider might, in
fact, be across a state line. If that woman is a minor, and if she is
terrified to tell her parents because of a history of physical violence
in the family or for other real concerns, how is she going to get
there? Alone? On a bus? What if she had been raped by a father, as was
the case with Spring Adams, a sixth-grader in Idaho. Spring was
impregnated by her father, and because of the parental consent
requirement in her state, she was forced to tell her mother that her
father had raped her. He then shot and killed young Spring Adams, her
mother and then himself. (Richard North Patterson, in a speech to the
National Abortion Federation, April 23, 2001) This is one American
family's story.
Parents are supposed to protect their children from harm. But even
in the most loving of parent-child relationships, harm can happen.
Children who are close to their parents may not know if the knowledge
of a pregnancy will turn parents against them, or they do not know if
God will punish them, and so they keep silent. In households in which
distrust or violence prevail, children are even less likely to trust a
parent or legal guardian in a time of crisis. So it is reasonable that
they turn to other adults whom they do trust and in whom they can
confide. It would be the role of that adult to help the young woman to
negotiate the rocky waters of family conflict, to make a decision about
what to do, and to assist her in achieving what she determines is best
for her. If that assistance included accompanying her across a state
line to terminate a pregnancy, that trusted adult would be a federal
criminal.
I ask you, is this just? Should minors' access to legal health care
services be compromised in this way? Should those who assist them in
obtaining legal health care be criminalized? Are these the family
values we choose to espouse?
I worry about every teenager who becomes pregnant, and I pray for
the day when this is a rare occurrence in our society. I pray for the
day when boy children are taught to respect girls, when they know that
while the consequences for themselves of impregnating a girl are
different than they are for the girl, there are consequences for them.
I pray for the day when rape, whether date rape or stranger rape, that
results in pregnancy becomes the real issue which we as a society must
address, not the resultant pregnancy. I believe we all would affirm
this.
Parents need to be involved in their children's lives, and we as a
society need to create a culture that encourages good parenting. Yet I
know from my years in the ministry that parents are not perfect and
that many struggle to understand their own children. I also know
parents who never grew up themselves and who impose on their children
their own immaturity. The solution to involving parents is not to pass
legislation that would mandate family communication on one particular
issue--this issue of abortion. In reality, this legislation could end
up destroying the family's relationships and endangering the girl's
well-being.
Please do not support this Act. It is not about protecting children
but about governmental interference in the decisions of conscience that
young women sometimes have to make.
Thank you again for the opportunity to testify before you today.
May you continue to hold the faces, names and hearts of those who would
be most impacted by this Act, should it come to pass, before you.
Reverend Lois M. Powell, Child Custody Protection Act, House
Subcommittee on the Constitution, July 20, 2004
Reverend Lois M. Powell, Child Custody Protection Act, House
Subcommittee on the Constitution, July 20, 2004
Mr. Chabot. Thank you.
Professor Collett, you're recognized for 5 minutes.
TESTIMONY OF TERESA STANTON COLLETT, PROFESSOR OF LAW,
UNIVERSITY OF ST. THOMAS SCHOOL OF LAW
Ms. Collett. Thank you, Mr. Chairman, Members of the
Committee.
I must confess I am puzzled by Reverend Powell's solution
to the problem of Spring Adams, that a secret abortion would
have allowed her to continue to reside in the incestuous home
and be abused again. In fact, that was the solution of Planned
Parenthood in Arizona, where a 13-year-old was being raped by
her foster brother. They did indeed give her a secret abortion
at a time when that State's parental involvement law had been
enjoined by the court. They did not tell of the incest, as they
were required under that State's law, but in fact, sent the
little girl back to the same house. She was raped again,
impregnated again, and it was only when she came back for a
second abortion that it was discovered. Fortunately, it was
discovered, and Planned Parenthood was found civilly liable for
the failure to report, and the girl was removed from the
household.
That is one of the benefits of parental involvement laws.
The law before you, as proposed, would not impose a national
parental involvement law, but that's what motivates the
overwhelming consensus in this country, that these are good
laws. Forty-four states have passed parental involvement laws,
but 10 of them have been found to be constitutionally
defective, and another group of them have provisions that allow
for someone other than the parent to bypass it, and other than
a judge. So only in 24 States must a parent be notified or give
consent.
This particular law is necessary because as telephone
directories that are located in States that do not have
effective parental involvement laws evidence, abortion
providers recognize the absence of parental consent will
increase their business. All you need to do is look at the
Yellow Pages in cities like St. Louis or Philadelphia, and
you'll see abortion providers' ads that include things like,
``No parental consent required,'' and then you'll recognize the
importance of this.
A New York Times article suggested that South Jersey
Women's Center in Cherry Hill found a 25 percent increase when
they began advertising no parental involvement required. There
was a 200 percent increase in the number of girls seeking
abortions after the Pennsylvania law went into effect in
neighboring States. So it's clear that abortion providers are
taking advantage of this, and this law allows States to ensure
that the choice that they have made through the proper
political process is given in effect to protect their minor
citizens.
Is that important and valuable? Well, as this Congress
learned through a congressional report from the Center for
Disease Control, two-thirds of the fathers of teenage mothers
are age 20 years or older, suggesting that there is in fact
differences in power and status between the sexual partners. In
addition to that, a survey of 1,500 unmarried minors having
abortions revealed that among the minors who reported that
neither parent knew of the abortion, 89 percent said that a
boyfriend was involved in deciding or arranging the abortion,
and 93 percent of those 15 and under said that the boyfriend
was involved.
Abortion providers are reluctant to report information.
It's not just an isolated case in Arizona. In fact, in Oregon,
an abortion clinic provided an abortion to an 11-year-old, yet
failed to report the sexual abuse. It was only because they
botched the abortion and there were in fact pieces of fetal
remains in the young girl causing stomach cramps, so when the
child was taken to the hospital, the doctor there reported it,
and it was discovered that she had been raped.
Or consider the case of Connecticut that is still before
the courts, where a 10-year-old girl was impregnated by a 75-
year-old man. The child was examined by two physicians who
failed to report the sexual abuse to public authorities as
required by Connecticut law.
A 36-year-old Nebraska man went so far as to impersonate
the father of the 16-year-old girl he had impregnated in an
attempt to obtain an abortion and thus hide the evidence of
their illegal relationship.
These laws are an important deterrent to that sort of
conduct, and the States have the rights to have those laws
effective whether the girl chooses to cross State lines or not.
Certainly this law is one way to make it work.
I see I'm out of time, Mr. Chairman.
[The prepared statement of Ms. Collett follows:]
Prepared Statement of Teresa Stanton Collett
Mr. Chabot. Thank you very much.
The panel up here will now have the opportunity to ask
questions for 5 minutes. I'll begin with myself, and I'll begin
with you, Ms. Farley, if I can.
In your opinion, would this Act, the Child Custody
Protection Act, help deter individuals such as the woman who
took your minor daughter from Pennsylvania to New York to
obtain an abortion from doing that type of thing? Do you think
there is--do you think this is a positive step in the direction
of preventing things--what happened to you from happening to
other women?
Ms. Farley. Yes, I do. I think it would not only prevent a
situation like my daughter was in, but maybe the abortion
providers would be more responsible as far as--with Crystal,
right away when she had difficulties, I could never get hold of
the physician that performed the abortion. He refused to
provide the physician that was caring for Crystal any records.
I had to take Crystal all the way back to New York for them to
hand her the records in hand. It was a very difficult process.
And this, you know, make it--somebody, the physicians
responsible that are doing the abortions and not just a
lucrative business.
Mr. Chabot. Thank you.
Professor Collett, let me turn to you if I can. In your
opinion is the judicial bypass, is it a viable option for girls
who feel that they can't tell their parents that they're
pregnant and they're considering having an abortion? Do you
think that's an appropriate process? Does that seem to work?
Ms. Collett. Absolutely. In fact, I was puzzled by Mr.
Nadler's comment that there are States where it doesn't work.
That was one of the arguments that was raised when Texas was
considering the parental notice law, that judges in Texas would
never grant judicial bypass, and in fact, an ACLU memorandum on
parental involvement laws cites Texas as one of the States that
has a model bypass procedure. Girls who are unable to involve
their parents are in fact able to obtain a bypass.
There are statistics in my written testimony, as a matter
of fact, that I obtained from States that keep track of
bypasses. In 2002 there were girls that in Alabama obtained
approval, but what we see instead is approximately 90 percent
of the girls in most States involve their parents, which is as
it should be.
Mr. Chabot. Thank you very much.
Professor Rosen, let me turn to you if I can. It's my
understanding that it's your opinion that rather than
undermining federalism, the Child Custody Protection Act
actually reinforces basic constitutional principles of
federalism; is that correct? And could you espouse on that a
bit?
Mr. Rosen. Yes, that is my view. I think one of the great
benefits of federalism is that it permits coordination of a
large number of people in our country, but at the same time it
allows for differences at sub-Federal levels, and there are
obviously different communities across the country who feel
very differently about different things. And I think it's
beneficial for federalism to encourage those differences across
States.
That, I will say, however, is my personal view of
federalism. I think that one could have a different conception
of federalism. I think one could espouse the view that
federalism is better, you know, have the States have different
laws, but allow people to--citizens to pick and choose laws and
go and travel to other States and avail themselves of those
laws. I think that's a plausible conception.
Others, like Professor Tribe and Rubin have argued that,
but I certainly don't think that conception of federalism is
required by the case law. In fact, I think that it is an open
question that is appropriately solved by Congress.
Mr. Chabot. Thank you. Thank you very much.
Rev. Powell, let me ask you. You had talked about a
particularly horrible case in which a man killed his daughter
and his wife and then ultimately himself, and that's
obviously--I don't know if I want to say a rare case because it
has happened on other occasions as well, terribly tragic case.
But in most cases would you agree that when a minor has become
pregnant and it's an unwanted pregnancy, at that point that
she's going to make a decision as to whether she's going to
keep the baby or not? Would you agree that in most cases it is
the parents that ought to be involved in that decision along
with that child?
Rev. Powell. In the best of all possible worlds, yes, and
in my experience that's not always possible. My concern about
this Act is that that child may in fact turn to another
responsible adult, whom they do trust, who could assist them
with all the decisions that a parent might make in terms of
medical concerns, place, the decision itself, where to go, how
to get there.
Mr. Chabot. Let me give myself an additional minute because
I'm out of time. Let me just follow up on your response there.
But you've heard some other cases in which--and we have
documented cases of this nature, where sometimes the young girl
is taken there by somebody who probably doesn't have her best
interest in mind. Maybe they--an older boyfriend or an older
adult male who got her into this situation to begin with, and
that might be the person that does it. Now, this law would make
it illegal for a person to do that if they're doing it in order
to get around a parental notification law in that particular
State. Don't you think that that would be a positive thing to
involve the parent if she didn't have the option of the guy
that may not have her best interest in mind?
Rev. Powell. I recognize that those are tragic situations,
but I would suggest that there are already laws in place that
were not enforced and could be enforced in those situations
that would prevent that from happening.
Mr. Chabot. My time is expired.
We probably have time for one round of questions from the
gentleman if he wants to take his time now. The gentleman is
recognized for 5 minutes.
Mr. Nadler. Thank you.
Professor Collett, most of your testimony involves crimes
such as rape, incest, the failure to follow laws to report
these crimes to the authorities. Do you believe that requiring
reporting to a parent who is a rapist is the appropriate
solution?
Ms. Collett. Since the situation is that less than 5
percent of pregnancies are involved, involving incest----
Mr. Nadler. Let's talk about those 5 percent, because this
law does not--is not made of exceptions.
Ms. Collett. I believe that a judicial bypass would be the
appropriate way to respond.
Mr. Nadler. And you're not aware of any judges in the
United States who have refused bypasses because of their
personal views on abortion?
Ms. Collett. I am aware that there have been allegations to
that effect.
Mr. Nadler. Okay, thank you.
Rev. Powell, does the judicial bypass work? Was I wrong
before when I said that there are cases when it doesn't work?
Are there no problems for young women in this respect?
Rev. Powell. In my view and in my experience in counseling
with younger women, most of them are not aware of a judicial
bypass. They have no knowledge of it. They don't know what the
procedure is. They would have to navigate by themselves somehow
what that is, going before a judge, figuring that out.
Mr. Nadler. There's no source of legal aid?
Rev. Powell. There are sources of legal aid, yes, and if a
teenager is directed into the right place, she in fact can
receive that judicial bypass and it can work, certainly.
Mr. Nadler. Thank you.
Professor Rosen--excuse me.
Rev. Powell, it can work sometimes, but are you aware of
many--of cases where it doesn't work?
Rev. Powell. I personally am not aware of cases where it
hasn't worked, but I certainly have heard that they have been
refused.
Mr. Nadler. Thank you.
Professor Rosen, you referred to the Mann Act. The Mann Act
sets a national rule. You may not go across State lines for
this purpose anywhere. It doesn't depend on State law. The
Fugitive Slave Act aside, this is the only bill that I'm aware
of which essentially says to a resident of one State, that you
carry the law of that State on your back as a burden in another
State, when you go to another State to do something which is
legal in that other State. This bill, in effect, nationalizes
individual State laws. How can that be constitutional? And
don't tell me about the Commerce Clause, because that's not the
issue here. It's personal liberty.
Mr. Rosen. I don't see any source in the Constitution that
precludes States from----
Mr. Nadler. Exporting their law to another State?
Mr. Rosen. Vis-a-vis their citizens, correct.
Mr. Nadler. So in other words, if you're a citizen of New
York--could the State of New York enact a law saying that any
New York citizen residing in New Jersey, it's a felony to do X,
Y or Z in New Jersey?
Mr. Rosen. Yes.
Mr. Nadler. It could?
Mr. Rosen. Yes. Now, that's not----
Mr. Nadler. That's a rather surprising assertion of State
power which I've never heard before.
Mr. Rosen. Well, it's perfectly consistent with what the
model penal code says, as----
Mr. Nadler. I don't care about the model penal code. It's
not consistent with the Constitution.
Mr. Rosen. Well, I don't see where in the Constitution it's
not consistent with it. I don't see----
Mr. Nadler. So in other words, it's your testimony that
States control their citizens while living--who live in other
States?
Mr. Rosen. Yes, they have the power because they have----
Mr. Nadler. Okay. I rest my case. Thank you.
Mr. Chabot. The gentleman's time's expired.
The gentleman from Iowa is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I would direct my first question to Rev. Powell. And with
regard to parental notification, parental consent, and there
are, there are States that have a list of parents under that
kind of statute that is sometimes quite extensive, and it often
will include parents, legal guardians, which I believe it
should. Then it goes to grandparents, brothers, sisters, aunts,
uncles. And that brother or sister might be an estranged
brother or sister that could live in another State that would
be almost a generation removed, maybe never has met the young
lady in question that has to, that has to be confronted with
this issue. In addition to that, there's often judicial bypass
included.
Now, as a young lady in this dilemma considers these
alternatives on notification--and I'll just make this point--
that I believe that if we statutorily set up a long list, a
menu for that young lady to choose from on alternatives for
notification, that if the parents are, I'll say, resistant to
the abortion and maybe she's--certainly she's going to believe
they're going to come down on her harder than they would on--or
hard on her. That will be her decision--her fear, regardless of
whether they do or whether they don't. What do you think that
evaluation system will be for that young lady in that dilemma?
Will she look at that and say, where do I get the best advice?
Or will she look at that and decide what's the path of least
resistance?
Rev. Powell. Are you asking me about a young woman who
wants to cross the State line with a responsible adult other
than her parent? Because that's what the Act is about.
Mr. King. I'm going to ask--generally, I'm asking about
that decision-making process of a young woman who is
considering an abortion, whether she goes to someone who is her
best advice or whether she goes to the path of least
resistance.
Rev. Powell. The young women that I have spoken with and
counseled have come to me because they regarded me as someone
who could be--treat the information confidentially and provide
her with trusted advice and counsel so that she could make up
her own mind. I would always encourage her, if at all possible,
to involve her parents in the decision.
Mr. King. Then if I'm to interpret your answer, that is it
would be a combination of that confidentiality and good advice
in the same package if she can find it, which might also follow
the path of least resistance.
Mrs. Farley, what would your opinion be of the question
I've asked?
Ms. Farley. My opinion is that a minor would chose the path
of least resistance. The person--my daughter told me she
figured this woman that took her out of State to New York, she
was an adult so she would know what to do. And she was scared
and chose the path of least resistance.
Mr. King. And would you think that would be typical of a
young lady that age?
Ms. Farley. Yes, I do.
Mr. King. Thank you.
Professor Collett?
Ms. Collett. I think it's human nature. I think we
typically--when we're scared, we'll choose those who will
affirm what we want to do.
Mr. King. Especially at an immature age. The younger, the
more immature, the more vulnerable they are to someone that
will offer a hand, whether it's a helping hand or whether it's
just a hand.
Ms. Collett. Unfortunately.
Mr. King. Thank you. And then the discussion about whether
judges are able to follow the law in spite of their convictions
or their personal morality, I'd just make the statement that I
do know judges who have to make that decision on whether to
grant a judicial bypass in the case of an abortion and in spite
of their religious beliefs and their personal convictions. They
swallow hard and follow the law. I'd like to think that's what
we do in all cases.
I would have no more questions, and I'd yield back the
balance of my time. Thank you, Mr. Chairman.
Mr. Chabot. I thank the gentleman. The gentleman's time is
expired.
The bells that you heard were more votes on the floor. We
have two votes, so my guess is we're going to be there for,
ballpark a half hour or so. That's what they just told us. They
called over there. There's a 15-minute vote followed
immediately by another 15-minute vote. So we're down to the 5
minutes probably to go. That second bell went off. So we will
be back. As soon as the second vote is over, we'll get back
here as quickly as possible, and those that still have
questions will have the opportunity to ask them. And so we're
in recess. Thank you.
[Recess.]
Mr. Chabot. The Committee will come back to order. The
gentleman from Virginia, Mr. Scott, is recognized for 5 minutes
to ask questions.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
Professor Collett--is that how you pronounce it, Collett?
Ms. Collett. Yes.
Mr. Scott. I just had a couple of kind of legalistic
questions. I assume this bill would create a felony; is that
right, for the violation, and not a misdemeanor?
Ms. Collett. I'm looking at----
Mr. Chabot. Would the gentleman yield?
Mr. Scott. I'll yield.
Mr. Chabot. Yes. It's 1 year maximum penalty, plus a fine,
so it would actually be a first-degree misdemeanor.
Mr. Scott. I'm sorry? Misdemeanor?
Mr. Chabot. First-degree misdemeanor.
Mr. Scott. Okay. Professor Collett, Rev. Powell indicated
that an older sister could get caught up in this. What about a
younger sister? If you had a 17-year-old minor with a 15-year-
old sister, could the 15-year-old get caught in this and be
exposed to criminal prosecution?
Ms. Collett. I don't believe there is a defense based on
the age.
Mr. Scott. Transport is not defined. Would that include
accompanying the minor?
Ms. Collett. I believe transport is defined in the Federal
Code itself though, is it not, Representative?
Mr. Scott. I don't know.
Ms. Collett. I believe it is.
Mr. Scott. Would that include accompany, do you know?
Ms. Collett. I do not.
Mr. Scott. Usually in criminal code a word like that would
be----
Ms. Collett. Defined narrowly. You would give the----
Mr. Scott. You'd define narrowly, and you would, if there
was another definition somewhere, you would refer to it, and I
don't see that in here. But do you think it ought to include
accompany, ride the bus with?
Ms. Collett. With the intention of, with the proper mens
rea, yes.
Mr. Scott. So it should, okay. Should the taxicab driver be
exposed?
Ms. Collett. They would not have the proper mens rea.
Mr. Scott. If they're listening to the conversation in the
back seat, ``we're going to get an abortion?''
Ms. Collett. Again, they would not have the proper mens
rea.
Mr. Scott. They know what they're doing. They're
transporting someone across State line for the purpose of
getting an abortion.
Ms. Collett. But not for the purpose of evading the
parental involvement law.
Mr. Scott. And if the conversation, so that they knew what
they were doing as they were driving along, if the ticket agent
at the bus station, if the teenager confided in the ticket
agent and said, ``I need to go across State lines to avoid the
parental consent laws in this State, so I need a ticket across
the State line,'' and the ticket agent sold the ticket, would
that be a violation of the law?
Ms. Collett. I do not believe so.
Mr. Scott. Where would that be an exception?
Ms. Collett. Again----
Mr. Scott. The bus is transporting the person across State
lines, knowing that it's for the purpose of getting an abortion
in violation of the local law?
Mr. Chabot. Would the gentleman yield?
Mr. Scott. I yield.
Mr. Chabot. Thank you for yielding. Just reading the law
itself, it says, ``Except as provided in Subsection such-and-
such,'' whoever knowingly transports a minor across a State
line with the intent that such minor obtain an abortion. So I
think the argument would be that the person who sells the
ticket or the person who drives the cab, their intention is not
that the person get an abortion. Their intent is to get a fare
in return for the service they're providing. So I would assume
that that would probably be Professor Collett's point of view.
Ms. Collett. Yes, Mr. Chairman.
Mr. Chabot. Thank you.
Mr. Scott. So I would assume then, if the gentleman would
respond, that if we had a taxicab and bus exception, you
wouldn't object?
Mr. Chabot. I'm not--would the gentleman yield?
Mr. Scott. I'll yield.
Mr. Chabot. He can offer that amendment if he'd like to at
markup. I'd have to consider it. I probably would not. I don't
think we need to further complicate the legislation. It seems
pretty clear. I think they're talking about some adult----
Mr. Scott. I know what you're talking about. I'm reading
the bill. And last time we had this, the taxicab amendment was
rejected.
Professor Rosen, you indicated--talked about crossing State
lines and how the law kept going. Would it be constitutional
for the Commonwealth of Virginia to prohibit junkets to
Atlantic City for the purpose of gambling at a casino? You
can't gamble in casinos in Virginia.
Mr. Rosen. Right. I'm of the view that it probably would be
constitutional. There's a complication because there are--
although States presumptively have significant powers to
regulate their citizens when they're out of State, there are
certain limitations. One is in respect of economic matters, the
Dormant Commerce Clause creates certain limitations, and
gambling could trigger one of those----
Mr. Scott. How would gambling not trigger it and getting an
abortion would? I mean it would be the same principle, wouldn't
it?
Mr. Chabot. The gentleman's time is expired, but the
witness can answer the question if he so wishes.
Mr. Scott. May I just ask for an additional minute?
Mr. Chabot. Without objection.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chabot. Sure.
Mr. Rosen. Well, in my view, there's uncertainty in the
case law with regard to the Dormant Commerce Clause limitations
on extraterritorial regulation. I think----
Mr. Scott. It's not extraterritorial regulation. It's
crossing State line with the intent. So while you're in
Virginia, you're heading toward the line, and that is the line,
crossing the line, leaving Virginia with the intent to go to
Atlantic City to gamble in a casino.
Mr. Rosen. Yes.
Mr. Scott. So that would be as constitutional as this, same
principle?
Mr. Rosen. Yes.
Mr. Scott. Is the physician, Professor Rosen, liable under
this law, the physician in the other State?
Mr. Rosen. No, because the law is not written to cover the
physician, but only the person who transports.
Mr. Scott. What about conspiring? If the physician invites
the person to cross State lines to conspire for them to violate
this law; would that not be a conspiracy charge for the doctor?
Mr. Rosen. It might be. I'm not sufficiently familiar with
the law of conspiracy, but it might be.
Mr. Scott. What about civil liability?
Mr. Rosen. I'm not sufficiently familiar with the law of
conspiracy and civil liability.
Mr. Scott. Anybody on the panel familiar with conspiracy
and civil law, to know whether or not the physician gets caught
up in this if they perform the abortion in the other State
where it's legal without parental consent?
Mr. Chabot. The gentleman's time is once again expired. The
witness can answer the question if he'd like to.
Mr. Rosen. Well, just a modification of your question.
You're saying if the physician participates in transportation;
that's your hypothetical, correct? I mean if the physician
actually, for example, goes into the car and transports, I
think the answer is yes. If the physician does less than that,
it seems to me that the statutory language would not cover the
physician.
Mr. Chabot. The gentleman's time is expired.
The other gentleman from Virginia, Mr. Forbes, is
recognized for 5 minutes.
Mr. Forbes. Thank you, Mr. Chairman.
I'd like to thank all the panelists for being here. We all
wish we could spend more time asking you some questions to
clarify your positions, but we're limited to 5 minutes, so I'm
going to ask you if you can be as concise as possible, and you
can elaborate on your answers in the record if you'd like to.
But Rev. Powell, let me ask you. Based on your testimony I
would conclude that you counsel with and work with at least a
significant number of teenagers so that you're aware of the
pressures and problems that are confronting them on a day-to-
day basis in today's society; is that true?
Rev. Powell. Since 1970, when I had started this work, yes.
Mr. Forbes. And that would be a wide array of problems
they're confronting, not just limited to pregnancies; is that
correct?
Rev. Powell. Yes.
Mr. Forbes. Are you aware of the huge marketing attacks
that are taking place on teens today regarding credit cards?
Rev. Powell. Yes.
Mr. Forbes. And do you understand that that has resulted in
a number of suicides by teenagers?
Rev. Powell. No, I'm not aware of that.
Mr. Forbes. It's in a lot of the literature, news articles
and all, that a number of teens, because they are being sold
credit cards as teenagers and they are becoming overwhelmed
when they have to confront their parents, and actually
committing suicide rather than doing that.
The question I would ask for you is, given this marketing
scheme where they're trying to sell more and more teens credit
cards, would you be in favor of having teens be able to sign
for their own credit cards under the age of 18-years-old?
Rev. Powell. I am stretching to see what the relevancy is
for the current Act before us that we're discussing----
Mr. Forbes. Fortunately, we don't have a judge to answer
the relevancy, so if you would just answer the question if you
have an opinion or not.
Rev. Powell. I would say yes if they're under the age of
18.
Mr. Forbes. So you think a 16-year-old or a 15-year-old
ought to be able to sign to bind themselves to a credit card?
Rev. Powell. No, they shouldn't.
Mr. Forbes. They shouldn't. Why shouldn't they?
Rev. Powell. Because ultimately the parents are going to be
responsible for those financial costs.
Mr. Forbes. Not if we give authority to the teenage to--
teenager, and say that they would be liable themselves.
Rev. Powell. If the teenager had been granted whatever the
legal term is for being an adult on your own, I would say yes,
that they should be able to sign their own credit card.
Mr. Forbes. So you think you would see nothing wrong with
as a legislature us being able to say that a teenager could
sign to bind themselves to credit card debt at 16-years-old
just like they're doing at 18-years-old?
Rev. Powell. No, I wouldn't advise that.
Mr. Forbes. I'm just asking would you see any legal problem
with doing that?
Rev. Powell. I don't know, because I'm not really familiar
with what the legal ramifications would be.
Mr. Forbes. Okay. Let me ask you this. You recommend, you
said, I think, that all of the teens that you counsel with,
that they talk with their parents?
Rev. Powell. No, I didn't say that, sir.
Mr. Forbes. Oh, you don't. Can you clarify what you--that's
what I thought you said. Tell me what you----
Rev. Powell. I would recommend that if at all possible
teens be able to talk with their parents or legal guardians,
yes.
Mr. Forbes. Now, you also indicated--and correct me if I'm
wrong here--that you don't know what the parent will do; is
that correct?
Rev. Powell. Sometimes one does not know what the parent
will do.
Mr. Forbes. Do you always know what the parent--do you
ever--isn't it true that in many situations sometimes you think
that a parent that would act good in a situation like that,
when given the information that they have a teenage pregnancy,
acts in a bad manner?
Rev. Powell. Sometimes that occurs, yes.
Mr. Forbes. And sometimes the ones that you might think
would act bad, act in a good manner; is that correct?
Rev. Powell. Yes.
Mr. Forbes. Then why do you recommend that they talk with
their parents if you have no idea at all what the outcome's
going to be?
Rev. Powell. Because the relationship between child and
parents is an important relationship. It is often central in
the child's life and in the parent's life, and certainly in the
family life, how----
Mr. Forbes. If the State legislature concludes just what
you've said, that that relationship between a parent and a
child is central and a central relationship, and they
determine, for example, Virginia determines that the children
in Virginia should recognize that central relationship and
consult with their parents before they make a decision as
substantial as having an abortion, do you think that ought to
be honored?
Rev. Powell. If Virginia has made that decision, Virginia
has made that decision. But the Child Custody Act is talking
about another adult taking that child across State lines in
order to obtain an abortion.
Mr. Forbes. My time's expired.
Mr. Chabot. The gentleman's time is expired.
The gentleman from Indiana, Mr. Hostettler is recognized
for 5 minutes.
Mr. Hostettler. I thank the Chairman. I find it intriguing,
in looking over the list of witnesses from the last hearing,
that the other side often complains about the mixture of
religion with regard to the abortion debate, and looking on the
list last time, the minority asked a Reverend Catherine
Ragsdale, a Vicar of St. David's Episcopal Church, former chair
of the board of the Religious Coalition for Reproductive Choice
to be their one witness, and today we have the Reverend Lois M.
Powell, United Church of Christ, on behalf of the Religious
Coalition for Reproductive Choice, and I just think the record
should reflect that I guess both sides are very interested in
the compelling discussion of religion and abortion.
That being the case, Rev. Powell, you say in your
statement, quote: ``We can never forget that individual women,
who themselves have been created in the image of God, struggled
in each and ever instance,'' unquote. I couldn't agree with you
more about women who have been created in the image of God, and
thank goodness for my daughters, they've also been created in
the image of their mother.
But let me ask you something. At what point have these
women that you speak of been created in the image of God?
Rev. Powell. God creates life, I believe.
Mr. Hostettler. At what point? The reason I'm saying is
that court decisions have suggested that that question needs to
be answered, and this is a good time to answer that question,
and they've suggested that it's a theological discussion.
Rev. Powell. It is a theological discussion, and there are
varying theological opinions, and perspectives on that.
Mr. Hostettler. Well, do you believe that God would have us
be ignorant of when life beings, when it's created, in your
words, in His image, in the image of God, I should say?
Rev. Powell. I think that there is a difference between
human life that is potential human life and human personhood,
and the laws in our country cover human personhood. I do not
believe a fetus is covered by laws that cover human personhood.
Mr. Hostettler. And so a fetus is not created in the image
of God?
Rev. Powell. A fetus is becoming a person who is created in
the image of God.
Mr. Hostettler. Okay. So a fetus, a fetus is not created in
the image of God. At what point does a fetus or a something
become created in the image of God?
Rev. Powell. I believe, along with the majority of people
in the United Church of Christ that that begins in the terms of
Roe v. Wade, that protectable human life begins at the point of
in the third trimester.
Mr. Hostettler. What did the Church of Christ say before
1973?
Rev. Powell. In 1969 it said that women ought to have full
access to full reproductive health care including abortion.
Mr. Hostettler. What did they say before 1969?
Rev. Powell. The United Church of Christ is not a doctrinal
denomination. We have a vast, wide divergent opinion in our--
among our members about this very question. I'm responding to
you in terms of what my personal beliefs are, which are still
in line with my denomination.
Mr. Hostettler. So you would not suggest that they're based
on scripture at all?
Rev. Powell. Well, scripture can be read and interpreted in
many, many ways.
Mr. Hostettler. Okay, very good.
Let me ask, Mrs. Farley, you, in response to the Chairman's
question earlier, you talked about taking your daughter to New
York. Did you elaborate on that? You took your daughter
somewhere after the, after the situation in question.
Ms. Farley. I had to take my daughter Crystal back to New
York to the abortion clinic, and--for them to release her
medical records. When she was at the hospital and signed a
release of records, the physician that performed the abortion
refused to release her records. So the physician here in
Pennsylvania had to do the--an operation without the records.
Mr. Hostettler. Very good.
Rev. Powell, I have a question, a follow-up question for
you. This 16-year-old woman in South Georgia, was she the
subject of--was she the victim of statutory rape?
Rev. Powell. No.
Mr. Hostettler. Was she the victim of any type of rape?
Rev. Powell. No.
Mr. Hostettler. Okay. How is this young woman today?
Rev. Powell. That was in 1992. I do not know. I have not
followed up with her. I only received a note when they returned
home that everything was going all right.
Mr. Hostettler. And that was in 1992?
Rev. Powell. Yes.
Mr. Hostettler. 12 years ago. Do you know if she suffers
any post-abortion problems?
Rev. Powell. I have no knowledge of that, sir.
Mr. Hostettler. No knowledge of that. Now, are you saying
that, quote, later it says, ``I assured this young woman and
her sister that God had not abandoned them but would remain
with them always. I encouraged them to find a way eventually to
talk with their parents, but not without a support of a third
person who could mediate on their behalf,'' end quote. That's
interesting, as the father of two daughters. Mrs. Farley went
to New York to be with her daughter as a result, to follow up
on this. But this third person you're talking about doesn't
really have any long-term relationships such as yourself with
this lady--with this friend from Georgia, this young woman from
Georgia, does she--do you?
Rev. Powell. I did not say who that third person would be,
but it would be someone whom they trust. It might be a
counselor at their high school, at her high school, someone who
they have confidence could help mediate any discussion with
their parents should they be fearing a reaction from their
parents.
Mr. Hostettler. Can I ask for one additional minute because
I had a different question.
Mr. Chabot. Without objection.
Mr. Hostettler. My question was--I'm not necessarily
talking about right after the event, when the case is wrapped
up and you say you made a move on to the next case. But I'm
saying long term. You're suggesting in your testimony that this
issue that has in many cases a long-term impact, should be
mediated by someone who has a much shorter-term interest in the
situation than does a parent.
Rev. Powell. No, I was not necessarily suggesting that.
Mr. Hostettler. With all due respect, your testimony says
after 1992 you have no idea what's going on in this woman's
life, and as opposed to a parent, who has a lifelong commitment
to a child. And your testimony is troubling because it suggests
that in this short span of time, that this decision is a very
short-term decision that has no lasting ramifications, that in
fact after the case is wrapped up and the file is signed and
you put it away in a folder, that that's it. What I'm
suggesting is that's not it, that there are long-term impacts
to these decisions, and that parents should be involved in that
process from the very start.
I thank the Chairman for his indulgence.
Mr. Chabot. The gentleman's time has expired.
There are no additional Members of the Committee to ask
questions, so that will conclude the questioning this
afternoon. I would ask unanimous consent that all Members have
five legislative days to revise and extend their remarks and
submit additional materials for the record.
We want to thank all four of the folks that came here to
testify today. We appreciate your testimony, wish you the best
in the future, and thank all Members who participated this
afternoon.
If there is no further business to come before the
Committee, we're adjourned. Thank you.
[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of John C. Harrison
PROFESSOR OF LAW
UNIVERSITY OF VIRGINIA
The Subcommittee has asked that I give my views concerning
Congress' power to enact H.R. 1755, the Child Custody Protection
Act.\1\
---------------------------------------------------------------------------
\1\ This statement is substantially identical to the testimony I
provided the Subcommittee with respect to H.R. 476 in the 107th
Congress and H.R. 1218 in the 106th Congress.
---------------------------------------------------------------------------
The proposed legislation would make it a federal crime knowingly to
transport across a state line ``an individual who has not attained the
age of 18 years . . . with the intent that such individual obtain an
abortion, and thereby in fact [to abridge] the right of a parent under
a law requiring parental involvement in a minor's abortion decision, in
force in the State where the individual resides.''
H.R. 1755 is a regulation of commerce among the several States.
Commerce, as that term is used in the Constitution, includes travel
whether or not that travel is for reasons of business. E.g., Caminetti
v. United States, 242 U.S. 470 (1917). To transport another person
across state lines is to engage in commerce among the States. There is
thus no need to address the scope of Congress' power to regulate
activity that is not, but that affects, commerce among the States, see,
e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935); Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung,
379 U.S. 294 (1964); United States v. Lopez, 514 U.S. 549 (1995).
Under the Supreme Court's current doctrine, Congress can adopt
rules concerning interstate commerce, such as this one, for reasons
related primarily to local activity rather than commerce itself. United
States v. Darby, 312 U.S. 100 (1941).\2\ Hence even if H.R. 1755
reflected a substantive congressional policy concerning abortion and
domestic relations it would be a valid exercise of the commerce power
because it is a regulation of interstate commerce.
---------------------------------------------------------------------------
\2\ Darby overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), which
held unconstitutional a ban on interstate shipment of goods made with
child labor. The Court in Hammer found that the statute was in excess
of the commerce power, even though it regulated only interstate
transportation, because its purpose was related to production, which is
a local activity.
---------------------------------------------------------------------------
Even under the more limited view of the commerce power that has
prevailed in the past, H.R. 1755 would be within Congress' power. This
legislation, unlike the child labor statute at issue in Hammer v.
Dagenhart, does not rest primarily on a congressional policy
independent of that of the State that has primary jurisdiction to
regulate the subject matter involved. Rather, in legislation like this
Congress would be seeking to ensure that the laws of the State
primarily concerned, the State in which the minor resides, are complied
with. In doing so Congress would be dealing with a problem that arises
from the federal union, not making its own decisions concerning local
matters such as domestic relations or abortion.
H.R. 1755 in this regard resembles the Webb-Kenyon Act, Act of
March 1, 1913, 37 Stat. 699, which dealt with a problem posed by then-
current dormant commerce clause doctrine for States with strong
prohibition laws. Such States, under Leisy v. Hardin, 135 U.S. 100
(1890), were limited in their power to regulate liquor that was shipped
from out of state. Under the Webb-Kenyon Act, liquor was ``deprived of
its interstate character'' (to use the old terminology) and its
introduction into a dry State prohibited. The Court upheld the Webb-
Kenyon Act in Clark Distilling Company v. Western Maryland Railway
Company and State of West Virginia, 242 U.S. 311 (1917).\3\
---------------------------------------------------------------------------
\3\ The rule of the Webb-Kenyon Act currently appears in Section 2
of the Twenty-First Amendment.
---------------------------------------------------------------------------
My testimony is concerned with the Commerce Clause, not with the
limitations on the regulation of abortion that the Court has found in
the Due Process Clauses of the Fifth and Fourteenth Amendments. That
focus is appropriate, I think, because H.R. 1755 does not raise any
questions concerning the permissible regulation of abortion that are
independent of the state laws that it is designed to effectuate. To the
extent that a state rule is inconsistent with the Court's doctrine,
that rule is ineffective and this bill would not make it effective.
Hence it is unnecessary to ask, for example, whether subsection (b)(1)
of proposed section 2431 of title 18 would constitute an adequate
exception to a rule regulating abortion. Because constitutional limits
on the States' regulatory authority are in effect incorporated into
proposed Section 2431, subsection (b)(1) is in addition to any
exceptions required by the Court's doctrine.
This testimony on legal issues associated with H.R. 1755 is
provided to the Subcommittee as a public service. It represents my own
views and is not presented on behalf of any client or my employer, the
University of Virginia.
----------
----------
Prepared Statement of Congresswoman Ileana Ros-Lehtinen
I would like to begin by commending Chairman Chabot for his
outstanding leadership, and especially for holding this important
hearing. Mr. Chairman, thank you for considering this vital piece of
legislation.
Abortion is perhaps one of the most life-altering and life-
threatening of procedures. It leaves lasting medical, emotional, and
psychological consequences and, as noted by the Supreme Court,
``particularly so when the patient is immature.''
Although Roe v. Wade legalized abortion in 1973, it did not
legalize the right for persons other than a parent or a guardian to
decide what is best for a child. Nor did it legalize the right for
strangers to place our children in a dangerous situation that is often
described as being potentially fatal.
In most schools, an underage child is prohibited from attending a
school field trip without first obtaining a signed permission slip from
a parent or legal guardian. An underage child is also unable to receive
mild medication at school, such as aspirin, for a headache, unless the
parent signs a release form permitting the school nurse to administer
such medication. In some schools, a child may not even take a sex
education class without parental consent, yet nothing forbids this same
child from being taken across state lines, in reckless disregard for
state laws, for the purpose of undergoing a life-altering abortion.
There is outrage over cigarette ads which some say target minors.
Where is the outrage over ads that clearly solicit business from
frightened, confused girls for a complicated medical procedure?
Designed to ensure children's safety, cosmetic ear piercing
requires parental consent for fear that girls may pick up dangerous
infections. Who ensures safety for young girls who are ill advised to
disobey state laws and are taken to undergo a highly dangerous
procedure that may tragically result in death or severe medical
complications?
As a mother of two teenage daughters, I realize the profound impact
that a positive relationship with one's primary caregiver has on the
development of our most important resource, our young people. I believe
that programs that protect our youth are not only beneficial, but are
also necessary for providing them with the skills and motivation
necessary to live a productive life. We must ensure that our most
precious natural resource, our children, are protected and afforded
every opportunity.
Last year, in the 107th Congress, I introduced the Child Custody
Protection Act, which passed the House with a vote of 260-161. In the
106th Congress, this legislation also passed with a vote of 270-159. In
the 105th Congress, it passed with a vote of 276-150. Significant
support for this legislation is not surprising because according to
Zogby International, 66% of people surveyed believe that doctors should
be ``legally required to notify the parents of a girl under the legal
age who request an abortion.''
My legislation, the Child Custody Protection Act, will make it a
Federal misdemeanor to transport an underage child across state lines
in circumvention of state and local parental notification laws, for the
purpose of having an abortion. It will protect minors from exploitation
form the abortion industry, promote strong family ties, and will help
foster respect for state laws.
Parental consent or parental notification laws may vary from state
to state, but they are all made with the same purpose in mind: to
protect frightened and confused adolescent girls from harm.
I thank you, Mr. Chairman, for considering this vital piece of
legislation, and I hope that this subcommittee will support H.R. 1755
for the purpose of upholding safety laws designed by individual states;
a bill that would protect parents' rights to be involved in decisions
involving their minor children, and would work to strengthen the bonds
of America's families.
----------
Prepared Statement of The American Academy of Pediatrics and Society
for Adolescent Medicine
This statement is submitted on behalf of the American Academy of
Pediatrics (AAP), an organization of 60, 000 primary care
pediatricians, pediatric medical subspecialists, and surgical
specialists who are dedicated to the health, safety, and well being of
infants, children, adolescents, and young adults, and the Society for
Adolescent Medicine (SAM), a multidisciplinary organization of 1400
professionals including physicians, nurses, psychologists, social
workers, and others committed to improving the physical and
psychosocial health and well-being of all adolescents. AAP and SAM
appreciate the opportunity to submit to the House Judiciary Committee a
statement for the record on H.R.1755, the Child Custody Protection Act.
OVERVIEW:
The AAP and SAM firmly believe that parents should be involved in
and responsible for assuring medical care for their children. Moreover,
our organizations agree that parents ordinarily act in the best
interests of their children and that minors benefit from the advice and
the emotional support provided by parents. Both AAP and SAM strongly
encourage adolescents to involve their parents or other trusted adults
in important health care decisions. This includes those regarding
pregnancy and pregnancy termination. Research confirms that most
adolescents do so voluntarily. This is predicated not by laws but on
the quality of their relationships. By its very nature family
communication is a family responsibility. Adolescents who live in warm,
loving, caring environments, who feel supported by their parents, will
in most instances communicate with their parents in a crisis, including
the disclosure of a pregnancy.
The role of pediatricians and other adolescent health professionals
is to support, encourage, strengthen and enhance parental communication
and involvement in adolescent decisions without compromising the ethics
and integrity of the relationship with adolescent patients.
The stated intent of those who support mandatory parental consent
and notification laws is that such laws enhance family communication as
well as parental involvement and responsibility. However, the evidence
does not support that these laws have that desired effect. To the
contrary, there is evidence that these laws may have an adverse impact
on some families and that it increases the risk of medical and
psychological harm to adolescents. The American Academy of Pediatrics
reports, ``[i]nvoluntary parental notification can precipitate a family
crisis characterized by severe parental anger and rejection of the
minor and her partner. One third of minors who do not inform parents
already have experienced family violence and fear it will recur.
Research on abusive and dysfunctional families shows that violence is
at its worse during a family member's pregnancy and during the
adolescence of the family's children.''
CONFIDENTIALITY OF CARE:
Confidentiality of health care services is an important element in
assuring adolescents' access to care--and it is compromised when
adolescents are required to seek parental consent. The AAP and SAM,
strongly believe that young people must have access to confidential
health care services--including reproductive health care and abortion
services. Every state has laws that provide for confidential access to
some services for young people, including sexual assault, STDs,
substance abuse, mental health counseling, or reproductive health care.
Concern about confidentiality is one of the primary reasons young
people delay seeking health services for sensitive issues, whether for
an unintended pregnancy or for other reasons. While parental
involvement is very desirable, and should be encouraged, it may not
always be feasible and it should not be legislated. Young people must
be able to receive essential health care expeditiously and
confidentially.
Most adolescents will seek medical care with their parent or
parents' knowledge. However, making services contingent on mandatory
parental involvement (either parental consent or notification) may
negatively affect adolescent decision-making. Mandatory parental
consent or notification reduces the likelihood that young people will
seek timely treatment for sensitive health issues. In a regional survey
of suburban adolescents, only 45 percent said they would seek medical
care for sexually transmitted diseases, drug abuse or birth control if
they were required to notify their parents.
A teen struggling with concerns over his or her sexual health may
be reluctant to share these concerns with a parent for fear of
embarrassment, disapproval, or possible violence. A parent or relative
may even be the cause or focus of the teen's emotional or physical
problems. The guarantee of confidentiality and the adolescent' s
awareness of this guarantee are equally essential in helping
adolescents to seek health care.
For these reasons, physicians and other adolescent health
professionals strongly support adolescents' ability to access
confidential health care. A national survey conducted by the American
Medical Association (AMA) found that physicians favor confidentiality
for adolescents. A regional survey of pediatricians showed strong
backing of confidential health services for adolescents, with 75
percent favoring confidential treatment. Pediatricians and other
adolescent health professionals describe confidentiality as
``essential'' in ensuring that patients share necessary and factual
information with their health care provider. This is especially
important if we are to reduce the incidence of adolescent suicide,
substance abuse, sexually transmitted diseases and unintended
pregnancies.
Many influential health care organizations support the provision of
confidential health services for adolescents. Here is what they say:
The American Academy of Pediatrics. ``A general policy guaranteeing
confidentiality for the teenager, except in life-threatening
situations, should be clearly stated to the parent and the adolescent
at the initiation of the professional relationship, either verbally or
in writing.''
The Society for Adolescent Medicine. ``The most practical reason
for clinicians to grant confidentiality to adolescent patients is to
facilitate accurate diagnosis and appropriate treatment. . . . If an
assurance of confidentiality is not extended, this may create an
obstacle to care since that adolescent may withhold information, delay
entry into care, or refuse care.''
The American Medical Association. ``The AMA reaffirms that
confidential care for adolescents is critical to improving their
health. The AMA encourages physicians to involve parents in the medical
care of the adolescent patient, when it would be in the best interest
of the adolescent. When in the opinion of the physician, parental
involvement would not be beneficial, parental consent or notification
should not be a barrier to care.''
The AMA also notes that, ``because the need for privacy may be
compelling, minors may be driven to desperate measures to maintain the
confidentiality of their pregnancies. They may run away from home,
obtain a ``back alley'' abortion, or resort to a self-induced abortion.
The desire to maintain secrecy has been one of the leading reasons for
illegal abortion since . . . 1973.''
American College of Physicians. ``Physicians should be
knowledgeable about state laws governing the rights of adolescent
patients to confidentiality and the adolescent's legal right to consent
to treatment. The physician must not release information without the
patient's consent unless required by the law or if there is a duty to
warn another.
The American Public Health Association. APHA ``urges that . . .
confidential health services (be) tailored to the needs of adolescents,
including sexually active adolescents, adolescents considering sexual
intercourse, and those seeking information, counseling, or services
related to preventing, continuing or terminating a pregnancy.''
Of course, it is important for young people who are facing a
health-related crisis to be able to turn to someone dependable, someone
they trust, to help them decide what is best. Many times that person is
a parent. Teenagers facing a crisis pregnancy should be encouraged to
involve a parent, and most do so. In fact, over 75 percent of pregnant
teens under age 16 involve at least one parent in their decision, even
in states that do not mandate them to do so. In some populations as
many as 91% of teenagers younger than 18 years voluntarily consulted a
parent or ``parent surrogate'' about a pregnancy decision.
All too often, however, young women know that their parents would
be overwhelmed, angry, distraught or disappointed if they knew about
the pregnancy. Fear of emotional or physical abuse, including being
thrown out of the house, are among the major reasons teenagers say they
are afraid to tell their parents about a pregnancy. Young women who are
afraid to involve their parents very often turn to another adult in
times of difficulty. One study shows that, of young women who did not
involve a parent in their abortion decision, over half turned to
another adult; 15 percent of these young women involved a stepparent or
other adult relative.
THE IMPLICATIONS OF H.R. 1755 FOR YOUNG WOMEN, FAMILIES,
STATES, AND HEALTH CARE PROFESSIONALS:
H.R.1755 would harm young women who are most afraid to involve
their parents in an abortion decision and who most need the support of
other adults in their lives. Instead of encouraging young people to
involve adults whom they trust, the law would discourage such
communication. The bill would have the unintentional outcome of placing
a chilling effect on teenagers' ability to talk openly with adults--
including family members and medical providers--because it sends a
message that adults who help young people grapple with difficult
decisions are criminals. This disincentive is extremely dangerous for
those young people most in need of support and guidance in a difficult
time, particularly when they cannot involve their parents.
This legislation is not only troublesome with regard to its effect
on confidential medical care for teens; it is also a harmful and
potentially dangerous bill from the perspective of its intent and its
potential effect on states' and individuals' rights.
As currently written, H.R. 1755, in effect would apply one state's
laws to another state. Young women would be required to abide by the
law of the ``original'' state (the state where the young woman resides)
regardless of where they seek medical care. There are many reasons why
women travel to obtain an abortion, including concerns about
confidentiality and consent. An adult who accompanies a young woman to
a legal, accessible, and affordable abortion provider would be placed
in the position of risking criminal sanctions.
Applying the laws from one state to young women who seek medical
care in another state, as H.R.1755 would do, raises important questions
about the rights of states and of health care professionals. Physicians
and other health professionals, have the responsibility to refer
patients to the best care possible. With any other medical procedure
physicians and other health professionals are not subject to guidelines
that prohibit proceeding with medical care in one state based on
guidelines from the referring state. In addition, in certain
metropolitan areas physicians have a license to practice in more than
one jurisdiction, such as Washington, D.C., Maryland, and Virginia. In
other metropolitan areas that cross state lines most of the health
services are in one state, and not the other. Imposition of the
requirements contained in H.R.1755 not only would burden families but
also would result in significant disruption of the relationships
between health care professionals and their patients, too. It could
also threaten other adults who help teenagers. As an example, consider
the Greater Metropolitan Washington community--what would happen if a
teen took the Metro subway or bus from Falls Church, Virginia to
Washington, D.C.? Would an adult who loaned the teenager Metro fare be
liable?
Furthermore, this law would be extraordinarily difficult to
enforce. For example, does the law apply only to women who travel to
another state in order to exercise their constitutional right to seek
reproductive health care? The AAP and SAM are concerned that there
could also be implications for young women who are temporarily living
outside their home state because of travel, education or employment.
The legal ramifications could be severe for an adult traveling with a
young woman even if the adult believes that the home state parental
consent or notification laws have been followed.
Moreover, AAP and SAM are troubled by the legislation's potential
effect on the responsibilities of the health care providers involved.
Health care providers have a ``fiduciary duty'' (the highest degree of
a legal obligation or duty) to protect the confidentiality of their
patients, and a number of federal and state laws mandate protection of
the confidentiality of medical records and information. One of the most
common requirements is found in state licensing statues for physicians.
Often, a physician who violates a patient's confidentiality is subject
to disciplinary action, including revocation of his/her license. Many
states mandate that health records must be kept confidential and cannot
be released without the patient's consent. AAP and SAM are concerned
that Congress may put health care providers in the position where they
must violate their legal or ethical confidentiality obligations in
order to meet the requirements imposed by a neighboring state.
CONCLUSION
In conclusion, AAP and SAM reiterate a statement previously made by
a former president of the Society for Adolescent Medicine: ``[C]learly
the proposed bill is designed to eliminate this [abortion] option for
many adolescents. Adolescents who cannot rely on one or both parents to
help them through the trauma of a pregnancy and who, for legal or
geographical reasons, may need to go to an adjoining state for
termination, are effectively precluded from receiving help from those
(such as other relatives, health professionals, or even the clergy) who
would be there to help them. In essence, this law would put adolescents
in the position of having to take care of themselves (possibly
traveling long distances in the process), without supportive care
during a traumatic time in their lives.''
OTHER RESOURCES
1. Gans, J.E. McManus, M.A., Newacheck, P.W. Profiles of
Adolescent Health Services, Vol. 2, Adolescent Health Care: Use
Costs and Problems of Access AMA:1991, Wash., D.C. at 52-53.
2. Marks A. Malizio, J. Hoch, J. Brody, R. & Fisher, M.,
Assessment of health needs and willingness to utilize health
care resources of adolescents in a suburban population, J of
Pediatrics 1983; 102: 456-460.
3. Resnick, M.D., Litman, T.J. and Blum, R.W. Physicians
attitudes towards 1confidentiality of treatment for
adolescents: findings from the Upper Midwest Regional Survey, J
of Adol. Health, 1992; 13:616-22.
4. Gans, J.E. Compendium on Reproductive Health Issues
Affecting Adolescents, AMA:1996, Wash. D.C. at 10.
5. American College of Legal Medicine, Legal Medicine at 278
(1995).
6. Colo.Rev.Stat 25-4-1409 (2) (1995). The statute does not
address physician protection of adolescent patients'
confidentiality.
7. American Medical Association. Council on Ethical and
Judicial Affairs. ``Mandatory Parental Consent to Abortion.''
JAMA. Vol. 269. No.1, January 6, 1993 p. 83.
----------
MATERIAL SUBMITTED BY CONGRESSMAN NADLER
July 19, 2004
U.S. House of Representatives
Washington, DC 20515
Dear Representative:
We, the undersigned organizations dedicated to protecting
reproductive rights and enhancing women's health, write to express our
opposition to H.R.1755, the so-called ``Child Custody Protection Act.''
The ``Child Custody Protection Act'' would make it a federal crime
for any person, other than a parent, to accompany a young woman across
a state line for the purpose of obtaining abortion care, if the home
state's parental-involvement law has not been met.
This bill poses a serious threat to young women's health. Most
young women who are faced with the decision to have an abortion already
involve their parents in their decision. Even in states in which
mandatory parental involvement is not required, over 60 percent of
parents knew of their daughter's pregnancy. And among young women who
did not tell their family, 30 percent had experienced or feared
violence in their family or feared being forced to leave home.
Those young women who decide they cannot involve a parent often
seek help and guidance from other trusted adults. Unfortunately, this
bill would deter young women from seeking assistance from a trusted
adult. Under this legislation, grandparents, aunts, uncles, adult
siblings or clergy could be prosecuted and jailed simply for supporting
a young woman in crisis who seeks reproductive health services - even
if that person does not intend, or even know, that the parental-
involvement law of the state of residence has not been followed.
Moreover, this legislation is unconstitutional and tramples on some
of the most basic principles of federalism. In the words of legal
scholars Laurence Tribe of Harvard University and Peter J. Rubin of
Georgetown University, the legislation ``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 each 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 affirmed by
the Supreme Court . . .''
While we share the belief that young women should involve parents
when facing difficult reproductive-health choices, in situations where
such communication is not possible, we believe young women should be
encouraged to involve other trusted adults. Unfortunately, this bill
does not accomplish that goal. In fact, it does the exact opposite by
forcing women to face important decisions alone, without any help. We
urge you to stand against this dangerous legislation.
Sincerely,
Advocates for Youth
American Association of University Women
American Civil Liberties Union
American Humanist Association
American Medical Women's Association
Center for Reproductive Rights
Central Conference of American Rabbis
Disciples for Choice
Disciples Justice Action Network
Law Students for Choice
Legal Momentum (the new NOW Legal Defense and Education Fund)
NARAL Pro-Choice America
National Abortion Federation
National Council of Jewish Women
National Family Planning and Reproductive Health Association
National Organization for Women
National Partnership for Women & Families
National Women's Law Center
People For the American Way
Physicians for Reproductive Choice and Health(r)
Planned Parenthood Federation of America
Population Connection
Religious Coalition for Reproductive Choice
Reproductive Health Technologies Project
Sexuality Information and Education Council of the United States
The Alan Guttmacher Institute
Union for Reform Judaism
Unitarian Universalist Association of Congregations
----------
Prepared Statement of The Rev. Doctor Katherine Hancock Ragsdale
EPISCOPAL PRIEST
ON BEHALF OF NARAL PRO-CHOICE AMERICA
Ladies and gentlemen of the subcommittee, thank you for the
opportunity to submit this testimony for the record. My name is
Katherine Hancock Ragsdale. I am an Episcopal priest and former chair
of the board of the Religious Coalition for Reproductive Choice, the
31-year-old coalition of 39 national religious and religiously
affiliated organizations from 15 denominations and faith traditions. I
also serve on the board of NARAL Pro-Choice America. I am the vicar, or
priest in charge, of a congregation in a very small town in
Massachusetts. It is primarily as a parish priest that I offer this
testimony. As a parish priest it is my privilege to be intimately
involved in the lives of a variety of people who struggle every day
with what it means be ethical, morally responsible people of God in an
always complex, frequently confusing, sometimes difficult, and
occasionally tragic modern world. It is my job, and my joy, to try to
help, and that's why I'm compelled to share this story with you.
I recall vividly a day when I left my home near Cambridge,
Massachusetts, and drove to one of the economically challenged cities
to the north of me to pick up a fifteen-year-old girl and drive her to
Boston for an 8 a.m. appointment for an abortion. I didn't know the
girl - I knew her school nurse. The nurse had called me a few days
earlier to see if I knew where she might find money to give the girl
for bus fare to and cab fare home from the hospital. I was stunned - a
fifteen-year-old girl was going to have to get up at the crack of dawn
and take multiple buses to the hospital alone? The nurse shared my
concern but explained that the girl had no one to turn to. She feared
for her safety if her father found out and there was no other relative
close enough to help. There was no one to be with her. So I went. And
during our hour-long drive to Boston we talked.
She told me about her dreams for the future - all the things she
thought she might like to do and be. I talked to her about the kind of
hard work and personal responsibility it would take to get there.
She told me about the guilt she felt for being pregnant - even
though the pregnancy was the result of a date rape. She didn't call it
that. She just told me about the really cute guy from school who seemed
so nice and about how pleased she was when he asked her out. And then,
she told me, he asked her to have sex with him and she refused. And he
asked her again...and again. And then he pushed her down and forced
himself on her. But he didn't pull a gun, or break any bones, or cause
any serious injury - other than a pregnancy and a wounded spirit - so
she didn't know to call it rape. She figured the fault was hers for not
somehow having known that he wasn't really the ``nice boy'' he had
seemed. And I talked to her about the limits of personal
responsibility; about how not everything that happens to us is our own
fault, or God's will; and about how much God loves her.
Then I took her inside and turned her over to some very kind
nurses. I went downstairs to get a couple of prescriptions filled for
her. I paid for the prescriptions after I was informed that they'd
either need the girl's father's signature in order to charge them to
his insurance, or the completion of a pile of forms that looked far too
complex for any fifteen-year-old to have to deal with. I drove her back
to her school and walked her to the nurse's office and turned her over
to someone who would look out for her for the rest of the day. And then
I drove home wondering how many bright, funny, thoughtful girls, girls
brimming with promise, were not lucky enough to know someone who knew
someone who could help. I despaired that in a society as rich and,
purportedly, reasonable and compassionate as ours, any young woman
should ever find herself in such a position. It never occurred to me
that anyone would ever try to criminalize those who were able and
willing to help.
Although New Hampshire was closer to that girl's home than Boston,
as it happened, I did not take her across state lines. Nor did I, to my
knowledge, break any laws. But if either of those things had been
necessary in order to help her, I would have done them. And if helping
young women like her should be made illegal I will, nonetheless,
continue to do it. I have no choice because some years ago I stood
before an altar and a Bishop and the people of God and vowed ``to
proclaim by word and deed the Gospel of Jesus Christ and to fashion
(my) life in accordance with its precepts . . . to love and serve the
people among whom (I) work, caring alike for young and old, strong and
weak, rich and poor.'' I have no choice. Even if you tell me that it is
a crime to exercise my ministry, I will have no choice. And, I assure
you, I am not alone.
I find it troubling, to say the least, that we should find
ourselves at odds over this issue. Presumably we all want the same
things. We want fewer unplanned pregnancies and we want young people
who face problems, particularly problems that have to do with their
health and their futures, to receive loving support and counsel from
responsible adults. This bill, however, doesn't help to achieve those
goals. It doesn't resolve the problems with which we are faced. It
doesn't even address those problems. This is not a bill about
solutions; it's a bill about punishments. And, while it is the rare
saint who is not sometimes subject to punitive impulses, such impulses
are, nonetheless, venal and beneath the dignity of Americans or of any
member of the human family.
We should be talking, instead, about reality-based, age-appropriate
sex education for all young people, and about safe, affordable, and
available contraception. We should be figuring out how we impress upon
boys that ``no'' really does mean ``no,'' and about how to teach girls
to defend themselves. We should be talking about education and
economics; about child care and welfare; about violence at home and on
the streets; not about new ways to punish victims and those who care
for them.
Yet, no matter how intense and successful our efforts, there will
still be minors who face unplanned pregnancies. And some of them will
still decide that abortion is the best - sometimes the most responsible
- option for them. And then, as now, we will want them to be able to
turn to their parents for love and support and guidance.
That is, I have to assume, the noble motive behind this bill. We
are appalled at the thought of any girl having to face and make such a
decision without the help of her parents, as well we should be. Still,
several years ago the Episcopal Church passed a resolution opposing any
parental consent or notification requirements that did not include
provision for non-judicial bypass. In our view, any morally responsible
notification or consent requirement had to allow young women to turn
for help to a responsible adult other than a parent or a judge - to go
instead to a grandparent or an aunt, a teacher or neighbor, a
counselor, minister or rabbi. Our resolution encourages the very things
this bill would outlaw. Sure, we want young people to be able to turn
to their parents. But when they can't or won't we want to make it
easier, not harder, for them to turn to other responsible adults.
We adopted this resolution (by a large majority) not because we
don't care about parental involvement. The Episcopal Church wants young
women to be able to turn to their parents for help when faced with
serious decisions. I want that. I'm sure members of Congress want that.
And, in fact, most girls - more than 60 percent - do turn to their
parents. We'd like it to be 100 percent. But we know that no one can
simply legislate healthy communication within families. And we know
that, of those girls who do not involve their parents, many feared
violence or being thrown out of their home. Statistical and anecdotal
evidence demonstrates that, in far too many American homes, such fears
are not unfounded. There is no excuse good enough to justify
legislation or regulation that further imperils young people who are
already living in danger in their own homes.
Even if we were to find ourselves drained of the last vestiges of
our compassion there would still be a self-interested reason to fear
and oppose this legislation. It imperils all young women, even those in
our own families. One hopes that none of the young women we know and
love has anything to fear from their parents. We may even be quite
confident that this is true. But let's not kid ourselves. Even in the
happiest and healthiest of families teens sometimes cannot bring
themselves to confide in their parents. Even in families like Rebecca
Bell's. Perhaps you remember her story. Becky's parents report that
they had a very good and loving relationship with their daughter. They
believed that there was nothing that she couldn't or wouldn't tell
them. But when Becky became pregnant she apparently couldn't stand the
thought of disappointing and hurting the parents she loved. And she
lived in a state that required parental notification. So she had an
illegal abortion - and she died.
Should Becky Bell have talked to her parents? I think so. Did she
exercise poor judgment? Absolutely. But, sisters and brothers, I can
tell you, teenagers will, from time to time, exercise poor judgment.
It's a fact of nature and there is no law Congress can pass that will
change that. The penalty should not be death.
Oppose this bill. Oppose it because no matter how good the
intentions of its authors and supporters, it is, in essence, punitive
and mean-spirited. Oppose it out of compassion for those young people
who cannot, for reasons of their safety, comply with its provisions. If
all else fails, oppose it for purely selfish reasons. Oppose it because
you don't want your daughter, or granddaughter, or niece to die just
because she couldn't face her parents and you had outlawed all her
other options.
Thank you for the opportunity to provide this testimony.
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