<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:95944.wais]
S. Hrg. 108-619
THE CHILD CUSTODY PROTECTION ACT:
PROTECTING PARENTS' RIGHTS AND CHILDREN'S LIVES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 3, 2004
__________
Serial No. J-108-78
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 96
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 101
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
prepared statement........................................... 140
WITNESSES
Collett, Teresa Stanton, Professor of Law, University of St.
Thomas School of Law, Minneapolis, Minnesota................... 16
Ensign, Hon. John, a U.S. Senator from the State of Nevada....... 3
Farley, Joyce, Dushore, Pennsylvania............................. 6
Harrison, John C., Professor of Law, University of Virginia,
Charlottesville, Virginia...................................... 13
Lane, Crystal, Dushore, Pennsylvania............................. 7
Ragsdale, Reverend Doctor Katherine Hancock, St. David's
Episcopal Church, Pepperell, Massachusetts, on behalf of the
NARAL Pro-Choice America and the Religious Coalition for
Reproductive Choice America and the Religious Coalition for
Reproductive Choice............................................ 8
Rubin, Peter J., Professor of Law, Georgetown University,
Washington, D.C................................................ 14
QUESTIONS AND ANSWERS
Responses of Teresa Collett to questions submitted by Senator
Sessions....................................................... 25
SUBMISSIONS FOR THE RECORD
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, 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, Reproductive Health Technologies Project,
Sexuality Information and Education Council of the United
States, Alan Guttmacher Institute, Union for Reform Judaism,
Unitarian Universalist Association of Congregations, joint
letter......................................................... 28
Alan Guttmacher Institute, Susheela Singh, Vice President for
Research, Washington, D.C., letter and attachments............. 30
American Academy of Pediatrics and Society for Adolescent
Medicine, statement............................................ 32
American Civil Liberties Union, Laura W. Murphy, Director,
Washington, D.C., Memorandum and attachments................... 39
Center for Reproductive Rights, New York, New York, statement.... 61
Collett, Teresa Stanton, Professor of Law, University of St.
Thomas School of Law, Minneapolis, Minnesota, prepared
statement...................................................... 74
Ensign, Hon. John, a U.S. Senator from the State of Nevada,
prepared statement............................................. 88
Farley, Joyce, Dushore, Pennsylvania, prepared statement......... 90
Harrison, John C., Professor of Law, University of Virginia,
Charlottesville, Virginia, prepared statement.................. 92
Lane, Crystal, Dushore, Pennsylvania, prepared statement......... 98
Philip, Diana, Legal Advocate, Austin, Texas, prepared statement. 105
Ragsdale, Reverend Doctor Katherine Hancock, St. David's
Episcopal Church, Pepperell, Massachusetts, on behalf of the
NARAL Pro-Choice America and the Religious Coalition for
Reproductive Choice America and the Religious Coalition for
Reproductive Choice, prepared statement........................ 116
Roberts, Eileen, Mothers and Advocates for Mothers Alone, (MAMA)
Inc., Fredericksburg, Virginia, prepared statement............. 121
Rubin, Peter J., Professor of Law, Georgetown University,
Washington, D.C................................................ 123
Zabin, Laurie Schwab, Ph.D., Johns Hopkins University, Baltimore,
MD, prepared statement......................................... 143
THE CHILD CUSTODY PROTECTION ACT: PROTECTING PARENTS' RIGHTS AND
CHILDREN'S LIVES
----------
THURSDAY, JUNE 3, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:15 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions
presiding.
Present: Senators Sessions and Ensign [ex officio.]
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. We will come to order. I just have to
extend an apology for the extended time that vote took. We have
a little courtesy to give a few extra minutes, and they gave
too much time as far as I am concerned in letting everybody
make sure they got to cast their vote on a 95 to nothing vote.
And they have two more, so I cast my second vote, and it
looks like we will have to go back for another vote. But I
thought, with your indulgence, I would at least make an opening
statement and maybe we can get started, and then maybe just one
more short break before the interruption.
Today's hearing will take testimony on the Child Custody
Protection Act, offered by our colleague and friend, Senator
John Ensign. I am pleased to be a cosponsor of the bill. In
fact, I was a cosponsor of the bill about 6 years ago when
Senator Spence Abraham first offered it. We will hear both
sides of the issue today from excellent panels.
The proposed legislation deals with what I think is a very
real problem involving interstate transportation of minor
children for the purposes of abortion, in violation of State-
protected custody rights of parents, and the well-being of
children. It is not about abortion. It is about the custody
rights of parents.
This legislation will be a step toward defeating the legal
loophole that now exists. It is a loophole that cheats parents
out of their basic right to know about the health concerns of
their minor children. This legislation does not expand or
contract existing State laws or appear in any way to contradict
Supreme Court precedent involving minor children and abortion.
It would simply deal with how to give effect to
constitutionally valid parental custody rights in our mobile
society.
The Supreme Court has made it clear in Planned Parenthood
v. Casey, a decision that expanded abortion rights, that it is
proper for a State to declare that an abortion should not be
performed on a minor child unless a parent is consulted. Many
States require parental consent before a principal or a teacher
can hand out an aspirin, and many States have concluded that to
perform an abortion on a minor without parental consent or
notice is a very dramatic interference on parents' protected
interests.
It is the parents, after all, who will have to monitor
their daughter's post-abortion medical condition. They love the
child and they want her to have the best care. They have every
right to not want some older man or some other person, for
example, who has no real interest in their daughter's well-
being making serious health decisions, or leading her into
serious health decisions without their knowledge at all.
In my view, the right of parents to be involved in these
major decisions is fundamental and ought not be lightly
transgressed. State parental consent and notification statutes
are a legitimate step to protect basic parental rights.
However, we do not even need to discuss the merits of parental
consent legislation because the issue before us today is not
whether States should have such laws. The issue before us today
is whether or not we should allow the circumvention of such
constitutional State laws which are designed to protect
children's health and parental rights.
There is direct evidence that third parties are interfering
with protected parental rights by taking minor children for the
purpose of an abortion from a State where parents have to be
notified, to another State that does not have a notification
law. This bill would preclude these third parties. It is not a
radical or extreme proposal. Rather, it is just good public
policy.
This is the type of legislation that even some pro-choice
advocates agree with. Dr. Bruce Lucero, a former abortionist
from Alabama, has performed 45,000 abortions. He supports this
legislation. In a New York Times op ed he wrote that,
``dangerous complications'' are more likely to result when
parents are not involved in these out-of-State abortions.
We will hear evidence today that demonstrates that this
issue does not involve a few isolated cases. An attorney for
the Center for Reproductive Law and Policy, Kathryn Kolbert,
has stated, ``There are thousands of minors who cross state
lines for an abortion every year and who need assistance from
adults to do that.''
We have seen several examples of abortion clinics which
openly place advertisements in the yellow pages of phone books,
in nearby States that have parental consent statutes. These
advertisements proudly proclaim ``no parental consent.''
Let me just show you a couple of these: ``Abortion: No
Waiting Period, No Parental Consent,'' and this was in the
Pennsylvania phone book yellow pages encouraging people to go
across the State line to Maryland. Pennsylvania has a parental
notification statute.
Here is another one from the Pennsylvania phone book: ``No
Waiting Period, No Parental Consent Required.''
``No Parental Consent or Waiting Period,'' and this was an
ad for a Buffalo, New York abortion clinic in the Erie,
Pennsylvania yellow pages.
This is an ad from a Phillipsburg, New Jersey, clinic,
again no parental consent.
You have another one there. This ad is located on the
website for an Englewood, New Jersey clinic. However, it is
located on the page for Pennsylvania abortion clinics.
This is on the Pennsylvania website abortionclinic.com.
These ads all target Pennsylvania teenagers and entice them to
surrounding States. It doesn't just happen in Pennsylvania. On
the State pages for 23 States with parental involvement laws,
on the abortionclinic.com website, there are ads for abortion
clinics in States without these laws. So we have an open policy
of encouraging transportation in interstate commerce to evade
State laws. It is the policy of these clinics to do so.
Some will argue the bill is unconstitutional and we will
hear testimony on that today, but the Supreme Court has upheld
parental notification and consent laws and this bill would
simply help enforce those. It does nothing more than prohibit
the evasion of the existing State constitutional statutes.
I was a Federal prosecutor for nearly 15 years and I
remember the long-time Federal statute, the Mann Act, that
prohibited the interstate transportation of women across State
lines for the purposes of prostitution. That law has been
upheld numerous times since the early 1900's.
Similarly, as a prosecutor I prosecuted in Federal court
those who transported in interstate commerce stolen motor
vehicles. It was not the theft of the vehicle that was the
basis for the Federal crime. It was the transportation in
interstate commerce of a vehicle that has been stolen. That was
the gravamen of the offense.
So this bill is narrow in scope. It does not prohibit
interstate abortions. It does not invalidate any State laws. It
does not establish a right to parental involvement for
residents of any other State that does not already have a
parental involvement law. It doesn't even attempt to regulate
the activities of the pregnant minor herself. It only reaches
the conduct of outside parties who wrongfully usurp the rights
of parents that are guaranteed by State law.
I have concluded that this bill is constitutional. We will
have opposition to that today, and I think it deserves serious
consideration and we will look at it carefully. I look forward
to the testimony today as we continue to study this
legislation. If any flaws exist, we would like to know what
they are and seek to improve the statute. I know Senator Ensign
would agree with that. I do, however, believe that minor
children are being abused through the evasion of State law, and
that Congress should act to place the responsibility for a
child's care where that responsibility belongs, with the
parents.
Senator Ensign, thank you for introducing this legislation
and pursuing it. Thank you for your leadership, in general, in
the Senate, and we would be glad to hear from you at this time.
STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Ensign. Well, thank you, Mr. Chairman, and thank
you for holding this hearing on what I believe is very
important legislation. If I may ask that my full statement be
made part of the record and then I will just try to summarize.
Senator Sessions. It will.
Senator Ensign. Mr. Chairman, there are few issues in
America that bring out as much emotion as abortion. There are
good people on both sides of this issue and there are a lot of
reasons that people approach it from different angles. When it
comes to separating out what are reasonable restrictions, there
are many issues that we should be able to come to agreement on
and this legislation is a prime example.
USA Today and CNN, which are certainly not known as
conservative organizations, conducted a poll that found that
almost three-quarters of Americans support the idea of parental
consent prior to a minor having an abortion. Judicial bypass
laws have been written across the country for those cases where
there is rape or incest involved within a family, because
minors may be afraid to go to one of the parents because of
abuse problems. There are ways to have the judicial system
involved so that there are responsible people ensuring the
safety of the minor. But these laws are set up in such a way
that anyone, just because they say they care, can come and take
somebody across State lines.
Make no mistake about it, abortion is a surgical procedure.
It may be a simple surgical procedure, but it is a surgical
procedure.
I have three children. My children cannot receive simple
medication at school without my permission. A simple medication
like aspirin given to the wrong person, even just a simple
antibiotic, can cause some people to have a harmful reaction.
That is one of the reasons that parental permission is so
important because the parents are the most intimately involved
people in that child's life. They know their medical history
the best and are also the people that will do the follow-up
care, for whatever the medical condition is.
If a child is taken across State lines for a surgical
abortion and has complications that night or the next day, now
this little girl is at home. She was afraid to tell her parents
about the abortion in the first place and so a friend, or maybe
it was the 20-something-year-old boyfriend, took the girl
somewhere to have an abortion. Two-thirds of the pregnancies
for under-age girls are fathered by guys over 20 years of age.
It is in that person's best interest, or at least they
think it is in their best interest, to talk the little girl
into having an abortion and to take them across state lines.
But where is that person when the girl goes home and starts
bleeding and has complications, or has an infection? This
little girl is now afraid to tell her parents because not only,
one, she was afraid of telling them about the pregnancy in the
first place, but now they have compounded it by having an
abortion. Victims may be terrified to tell their parents and
they may wait too long, suffer in privacy, and end up having
complications that could cost that little girl her life.
I have read through some of the testimony today. We are
going to hear some people that will say that it is the
compassionate thing to do to take somebody across State lines
to get an abortion. However, we need to look at the whole
person. That is the reason we allowed the courts to be involved
in these parental notification and parental consent laws.
We need to have the rule of law established and enforced.
The purpose of the legislation before us today is to make sure
that State parental notification and parental consent laws are
uphold, so--that people cannot bypass those by having an adult
take a minor across State lines. That is the bottom line for
this.
I wish that all States would enact parental consent laws,
not just parental notification, but actual parental consent
laws. The people that care the most for the child should be
involved in this kind of decision and, if there is aftercare
needed, be fully informed in order to care for their young
daughter.
I want everybody to try to put themselves in a position of
a parent. You know, at that age teenagers go through a lot of
emotions. They go through maybe a troubled time with their mom
or their dad, but what parent wouldn't wrap their arms around
this little girl? They are going to give them advice, and it
may mean a decision other than abortion. In a lot of families,
if they decide to have the abortion, then they will be there
for not only the physical care afterwards, but also through the
trauma associated with abortion psychologically and
emotionally, as well.
So, Mr. Chairman, I appreciate your bringing this issue
before this Committee and having a hearing on it. Nobody wants
to talk about abortion these days. It is something that
everybody wants to avoid. Nobody wants to talk about it. They
are tired, they are sick of it. But there are lives that are
being lost out there because these girls aren't being cared for
post-abortion. I believe this legislation is necessary and I
appreciate your willingness to have a hearing on it.
Thank you.
Senator Sessions. Thank you, Senator Ensign, for your
leadership and your excellent statement. There is almost a
suggestion sometimes that parents can't be trusted to love
their children. These people that would take them across State
lines, are they going to provide them a home? Are they going to
help educate them? Are they going to raise this child with love
and affection and for the rest of their lives be bonded
together? No, they are not.
To say that a parent who raised a child from her youth up
should not be engaged in some issue of this importance, I
think, is a mistake. I am glad to see that a majority of States
have passed laws that do provide for notification. We know that
any State law that does not withstand constitutional muster
won't stand and would not be predicate support for the bill you
have offered. But we will talk about that more later.
Senator Ensign, I think there are a few minutes left on
this second vote, if it goes according to time the way it is
supposed to and not like--
Senator Ensign. Mr. Chairman, I already voted, so I am in
good shape.
Senator Sessions. Okay, all right. I did, too, so we are
into the third vote now. Did you vote on that?
Senator Ensign. Yes.
Senator Sessions. Well, come up. You can preside, and it
won't take me but a minute to get this vote done.
Also, for the record I will offer Senator Leahy's
statement, the ranking Democratic member of the Judiciary
Committee who could not be here, but has provided a statement.
I think it might be appropriate if we do start with the
second panel. Senator Ensign, you might call them up and
introduce them.
Senator Ensign [presiding.] Simply, this is just to make
sure that Senator Sessions can be here. I am not a lawyer; he
is, and so having all of the legal people here, I would like to
have him here during their testimony. So if you all do not
mind, we could just reverse the next two panels' order.
If we could call up panel number three: Ms. Joyce Farley,
Ms. Crystal Lane, and Reverend Doctor Katherine Hancock
Ragsdale, if you would all come up. If any of you have full
statements, they will all be made part of the record and if you
could try to summarize your remarks in around 5 minutes, we
would certainly appreciate that. There is a little timer in
front of you, and then we can engage in some questions and
answers afterwards.
Why don't we just start with you, Ms. Farley, and we will
work down the table? Thank you.
STATEMENT OF JOYCE FARLEY, DUSHORE, PENNSYLVANIA
Ms. Farley. Good afternoon, members of the U.S. Senate
Judiciary Committee and all the public here. My name is Joyce
Farley and I am a resident of the State of Pennsylvania. I have
been asked by Senator Sessions 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 whom
she had met after entering the local high school as a seventh-
grade student. I was aware at this time that this male was
trying to befriend my daughter and had requested him not to
call the house or come to visit. This male had a reputation of
seeking out the seventh-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 of this type
have many 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. The 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 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 1 day. The mother of this 19-year-
old male had taken Crystal for an abortion into 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 a physician and facility that I had
no knowledge of. When Crystal developed complications from this
medical procedure, this physician was not available and refused
to supply necessary medical records to a physician that was
available to provide Crystal the medical care she needed.
I ask you please, in considering the Child Custody
Protection Act, to put aside your personal opinions on abortion
and 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,
caring, 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.
In many ways, time is a great healer, but as imperfect
human beings we don't always know the effect of our actions or
how deep the physical and emotional scars actually dwell. 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 appears as a
submission for the record.]
Senator Ensign. Thank you, Ms. Farley.
Ms. Lane.
STATEMENT OF CRYSTAL LANE, DUSHORE, PENNSYLVANIA
Ms. Lane. My name is Crystal Lane and I am here today to
tell you why I think the Child Custody Protection Act should be
passed and made part of our National laws. I believe in this
bill and I hope my message will make those present here today
believers as well.
When I was 13 years old, I was taken across the
Pennsylvania State line to New York for an abortion. The woman
that took me was in her mid-40's. I was so young and immature
in many ways. I trusted this woman because she was older and I
was so scared, I didn't know what to do.
I really think I could have lost my life at the abortion
clinic. I was awake through the entire time and asked them to
stop, but no one listened to me. I think all the time about how
things would have been different if my mom was with me or if I
had told her I was pregnant. I would have been taken care with
love rather than how I was treated.
After the abortion, things started to go wrong right away
and just kept getting worse, until my mom took me to our family
doctor and on to the hospital. Since the first abortion I had
was incomplete, the procedure needed to be repeated. Going
through all this was the most terrifying time of my life.
I am pleading to everyone here today to please take my
story to heart and mind when considering the Child Custody
Protection Act. I believe the passing of this bill will protect
the children of our Nation from even more horrible things than
what happened to me when I was only 13 years old. I was, and
am, really nervous about coming here today, but I realize how
important this bill is and the good it can bring to the people
and the children this Nation.
Thank you all for taking the time to listen to me today. I
hope you find it in your hearts to do the right thing.
[The prepared statement of Ms. Lane appears as a submission
for the record.]
Senator Ensign. Thank you, Ms. Lane. I know what kind of
pain and emotions this must bring up for you and I appreciate
you being here.
Reverend Ragsdale.
STATEMENT OF REVEREND DOCTOR KATHERINE HANCOCK RAGSDALE, ST.
DAVID'S EPISCOPAL CHURCH, PEPPERELL, MASSACHUSETTS, ON BEHALF
OF NARAL PRO-CHOICE AMERICA AND THE RELIGIOUS COALITION FOR
REPRODUCTIVE CHOICE
Rev. Ragsdale. Thank you. You do have the full version of
my comments, which are a little long so I will give you an
abbreviated version, within which I want to tell you one story
and then make a couple of points.
I am the parish priest of a small country church in
Massachusetts. Some years ago, I went to pick up a 15-year-old
girl and drive her to Boston for an abortion. I didn't know
that girl yet. I knew her school nurse. The nurse had called me
a few days earlier to see if I knew where she might find bus
and cab fare for the girl. I was stunned at the idea of a 15-
year-old girl being asked to take multiple buses into the city
all 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 were no other relatives close enough to
help. So I went, and during our one-hour drive we talked. She
told me about her dreams for the future, all the things she
thought she might like to do and be. I talked to her about the
kind of hard work and personal responsibility it would take to
get there.
She told me about the guilt she felt for being pregnant,
even though the pregnancy was a result of date rape. She didn't
call it that. She just told me about the boy who pushed her
down and forced himself on her. But he didn't pull a gun or
break any bones or cause any serious injury, other than
pregnancy and a wounded spirit. So she didn't know to call it
rape. So I talked to her about how not everything that happens
to us is our own fault or God's will, and about how very much
God loves her.
I took her inside and then I went downstairs to get a
couple of prescriptions filled for her, and I paid for them
after I was informed that otherwise her father would be billed.
Then I took her back to school and back to the nurse's office,
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 any young woman should ever find herself
in such a position, but frankly it never occurred to me that
anyone would ever try to criminalize those who were able and
willing to help. I did not, to my knowledge, break any laws
that day, but I am here to tell you that if it had been
necessary, I would have. And if helping young women like her
should be made illegal, I will nonetheless continue to do it. I
don't have a choice. I took vows, and if you tell me that it is
a crime to exercise my ministry to care for all God's people--
young and old, rich and poor, weak and strong alike--then I
will have no choice but to do it anyway. And I am not alone;
there will be a lot of jailed clergy.
I find it troubling that those of us in this room should
find ourselves at odds over this issue. Presumably, we all want
the same things. We want fewer unplanned pregnancies and we
want young people who face problems, particularly problems that
have to do with their health and their future, to receive love
and support and counsel from responsible adults, preferably
their parents.
If I thought this bill would achieve those goals, I would
support it, too, but it won't. It doesn't resolve the problems
with which we are faced. It doesn't even address those
problems. This isn't a bill about solutions; it is a bill about
punishment. We ought to be looking for new ways to solve our
problems, not new ways to punish victims and those who care for
them.
Yet, no matter how successful our efforts, there will be
minors who faced unplanned pregnancies and we will always want
them to be able to turn to their parents for love and support
and guidance. That is, I have to assume, the noble motive
behind this bill. We are appalled at the thought of any girl
having to face and make such a decision without the help of her
parents, as well we should be.
Nonetheless, many years ago the Episcopal Church passed a
resolution opposing any parental consent or notification
requirements that did not include a provision for non-judicial
bypass. In our view, any morally-responsible requirement had to
allow young women to turn for help to some responsible adult
other than a parent or judge, to go instead to a grandparent or
an aunt or a teacher or a neighbor or a counselor or a
minister.
My church encourages the very things this bill would
outlaw, and I would point out that this resolution was
supported by many anti-choice bishops and deputies whose
concern for the well-being of young women outweighed
ideological positions.
Like you, we favor parental involvement. As you know, most
women do indeed involve their parents. We wish that all could
and would, but we know that no one can simply legislate healthy
communication within families. We know that of those girls who
do not involve their parents, many fear violence or being
thrown out of their homes. And statistical and anecdotal
evidence demonstrates that in far too many American homes, such
fears are not unfounded.
There is no excuse, none, good enough to justify
legislation that further imperils young people who are already
in danger in their own homes. And if our compassion for those
imperiled young people should fail us, there would still be a
self-interested reason to fear and oppose this legislation. It
imperils all young women, even those in our own happy families.
Let's not kid ourselves. Even in the healthiest of
families, teens sometimes cannot bring themselves to confide in
their parents. Should they? Sure, but you know as well as I
that teenagers will from time to time exercise poor judgment.
It is a fact of nature and there is no law you can pass that
will change that, and the penalty for poor judgment should not
be death.
I ask you to oppose this bill, oppose it because no matter
how good the intentions of its authors and its supporters, it
is, in essence, punitive and mean-spirited. Oppose it out of
compassion for those young people who cannot, for reasons of
safety, tell a parent, but who need and deserve better than to
be left alone in their distress. 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.
[The prepared statement of Rev. Ragsdale appears as a
submission for the record.]
Senator Sessions. [presiding] I hope we are not mean-
spirited in this legislation. Parents love children, too.
Sometimes, they come home to parents.
I would just ask you this. The child that you took to
obtain an abortion--did you provide the upkeep for that child
after she got back home?
Rev. Ragsdale. No.
Senator Sessions. Did you in any way counsel or spend time
with her?
Rev. Ragsdale. Yes.
Senator Sessions. How much?
Rev. Ragsdale. Not a lot.
Senator Sessions. Well, that is the only point I am making.
Parents do that everyday. That is what they do.
Rev. Ragsdale. Unfortunately, the judge was of the opinion
that her parent didn't.
Senator Sessions. Well, under all of the Constitutional
laws, am I not correct that if there is that type of
circumstance, a court can bypass the parent's consent?
Rev. Ragsdale. I believe you are correct, Senator, but you
would be in a better position to know that than I. What I would
point out is that the Episcopal Church, in opposing parental
consent requirements that don't allow for non-judicial bypass,
has a serious concern that asking young women who are already
under distress to navigate the court system imposes a huge
burden on them.
Frankly, I am an old woman who has been around for a--well,
middle-aged, who has been around for a long time and I would
feel a little intimidated trying to navigate the court system
for any reason, but certainly for dealing with something as
personal and intimate as that. We thought it was important that
young women have support outside of that system.
I had a guy in my congregation ask me once, would you do
this for my daughter? I said I wouldn't have to do this for
your daughter. If your daughter came to me, I would be able to
say to her, you can talk to your father; let me go with you and
help you do that. I know you. But if you were a different
person than you are and she couldn't, in safety, talk to you,
then, yes, absolutely I would help her. That is my
responsibility.
Senator Sessions. What if the driver were a 35-year-old man
who had a habit of having sexual relationships with teenage
girls?
Rev. Ragsdale. Well, again, Senator, you know the law
better than I, but I am under the impression that that is
already illegal and he should probably be prosecuted for that,
and also that taking her away in an attempt to cover up the
evidence of an illegal act is probably a separate crime in and
of itself, for which he also should be prosecuted.
Senator Sessions. Well, that is not necessarily so. It
depends on the age of consent and the State system. Some are
16, others may be lower than that.
Rev. Ragsdale. Well, if you could fix that, I would really
like to have that fixed.
Senator Sessions. Is that situation the kind of
circumstance that you are dealing with? It seems to me that you
have taken the harder cases which the court system has already
considered and rendered an opinion on; that if a child has an
abusive parent and has reason to be concerned about that, they
have an option. But, otherwise, we would normally expect
parents to do that.
I don't think the Episcopal Church takes the view that
parental notification is bad. It simply said, as I read their
position, that they believe that there should be a judicial
exception.
Rev. Ragsdale. No, sir. I actually wrote that position, so
I am real clear on what it says.
Senator Sessions. What does it say?
Rev. Ragsdale. It says it has to allow for non-judicial
bypass.
Senator Sessions. A non-judicial bypass?
Rev. Ragsdale. A non-judicial bypass, yes, sir. We were
very clear when we crafted it. As I said, many anti-choice
bishops and deputies supported me in pushing this through after
I had written it. Apart from knowing how often the judicial
bypass system fails young women--and I know you will hear about
that in a moment and you already are aware of how thoroughly it
fails young women in many States. Apart from that, we are of
the opinion that it is an onerous burden and that young women
need to be able to turn to trusted adults for help.
Senator Sessions. Ms. Farley, thank you for coming. Ms.
Lane, thank you for coming. Do you have anything you would like
to add to the comments?
Ms. Farley. Yes, I would. The woman that took Crystal
across State lines, she wasn't, you know, the big bad guy. She
was the mother of the male that raped Crystal and I think the
motives were pretty obvious there. That woman dropped Crystal
back off at some other person's house and left, and we haven't
seen her again, except through court.
I work hard and I have insurance for my children. They are
all grown now, but I did then. You know, this is a young lady
who was a young girl. She wasn't a woman. You say ``woman'' a
lot. She was a young girl and she was just scared. I am sure
that woman was scared that her son would go to jail, and he
did. Unfortunately, he got out and did it again and again.
But as you say, she wasn't there, and you weren't there to
see the pain Crystal went through all those years and the pain
she still goes through. But I was there for her.
Senator Sessions. Ms. Farley, how do you feel about the
idea that somehow parents can't be trusted to discuss these
issues? I am sure a child would not want to disappoint their
parents. They may make a decision not to tell them for that
reason. But don't you think in the long run that child is
better off if they do come forward and talk to their parents
and the parents and the child can discuss all the ramifications
of the behavior that may have caused the pregnancy and all the
choices they may be facing?
Ms. Farley. Yes, I do, sir. I mean, family life is
difficult; it is not perfect. Parents make mistakes, children
make mistakes. You get together. I would think the church would
want to encourage a family getting together and solving
problems and working together. That is life, and when it is
interfered with, that is when you have the dangerous
situations.
I will tell you Crystal needed care and I had her at the
gynecologist down in Williamsport. That abortion clinic would
not give that physician Crystal's medical records. Crystal even
requested the records, and that is very poor medical care. What
would have happened? Crystal was very sick. Thankfully, I
happened to be home from work that day and noticed she wasn't
there, and thankfully found out. It is scary.
Senator Sessions. Well, I thank you both so much for
coming. Reverend Ragsdale, thank you for sharing these issues.
This is a very human thing. These are very real problems in the
lives of young people today, and I think it is legitimate for a
State to conclude that parents have a right to be involved in
minor children's decisions of this kind. I think it is
legitimate for this Congress to consider whether or not we
ought to take legal action that would uphold and validate the
decision of a State on this question, even though another State
nearby may not agree.
Is there anything else that you all would like to share?
Thank you so much for all your personal stories.
Our next panel is Professor Harrison, Professor Rubin and
Professor Collett. So we have gone from real people to
scholars.
Professor Harrison is professor of law at the University of
Virginia. He joined the faculty of UVA in 1993 as an associate
professor of law. He graduated from the University of Virginia
in 1977 and from Yale Law School in 1980. He was an associate
with Patton, Boggs and Blow in Washington, D.C., and clerked
for Hon. Robert Bork on the U.S. Court of Appeals for the
District of Columbia Circuit. He worked at the Department of
Justice from 1983 to 1993, serving in numerous capacities,
including Deputy Assistant Attorney General in the Office of
Legal Counsel from 1990 to 1993.
Mr. Harrison, I thank you for a short, succinct statement.
I was able to read it all. I read most of Mr. Rubin's, but I
didn't quite get to the end of it.
Professor Rubin is a professor at Georgetown University Law
Center. He graduated from Harvard Law School, where he served
as an editor of the Harvard Law Review. After graduating from
law school, Professor Rubin clerked for Judge Collins Seitz on
the Third Circuit, and Justice David Souter on the U.S. Supreme
Court. He has spent several years as a practicing lawyer
specializing in constitutional litigation. Recently, Professor
Rubin served as counsel to former Vice President Al Gore before
the U.S. Supreme Court in the two Florida election cases, Bush
v. Palm Beach Canvasing Board and Bush v. Gore.
Professor Teresa Stanton Collett is a professor at the
University of St. Thomas School of Law. She graduated with
honors from the University of Oklahoma School of Law and
practiced as a member of the Trust and Estate Section of Crowe
and Dunleavy in Oklahoma City. She also served on a joint
legislative task force to reform Oklahoma's guardianship laws.
The task force's efforts resulted in greater statutory
protections for the elderly and people of limited mental
capacity in the State.
She served as a visiting professor at Oklahoma College of
Law and was then appointed to the faculty at South Texas
College of Law, in Houston. She served as a visiting faculty
member at several other law schools, has published over 40
articles, and is the co-author of a law case book on
professional responsibility.
Thank you, all three of you, for being here. Without
further ado, Professor Harrison, I would be glad to hear your
comments on this legislation.
STATEMENT OF JOHN C. HARRISON, PROFESSOR OF LAW, UNIVERSITY OF
VIRGINIA, CHARLOTTESVILLE, VIRGINIA
Mr. Harrison. Thank you, Senator Sessions. I will try to be
as brief in person as I was in print.
Senator Sessions. You need not.
Mr. Harrison. The Committee has asked me whether I think S.
851 is constitutional, and I believe it to be. The
constitutional question that it presents is fundamentally one
of federalism. Although the underlying issues involve abortion
and the constitutional rights that the Supreme Court has found
regarding abortion, the issue presented here has to do with
federalism, and in particular with the overlapping and
sometimes conflicting jurisdictions of the States as part of
our Federal Union.
The first point that I would like to make and that my
written testimony largely reflects is that it is common for
Congress to use the commerce power not only for the purpose
with which we may be mainly familiar--sort of direct regulation
or ordinary activities--but in order to adjust conflicting
jurisdictional claims within the Federal Union, and in
particular to adjust conflicting jurisdictional claims among
the States.
The old cases that I talk about in my written testimony
having to do with the interstate transportation of liquor are
examples of jurisdictional conflicts created by the coexistence
of wet States and dry States in a Federal Union in which the
dry States were not able fully to control access to their
territory from liquor.
Congress' answer was a regulation of interstate commerce
designed to reinforce the lawful jurisdiction of the dry
States. And in doing that, Congress had to make a choice as to
which States fundamentally had the better jurisdictional claim
and in that case went with the dry States.
What I think is going on here in this legislation is a
policy choice proposed to be made by Congress having to do with
which State primarily has the jurisdiction and authority with
respect to domestic relations, and choosing the State of
residence.
Other questions that are raised by S. 851 have first to do
with the issue of whether it is somehow impermissibly extra-
territorial and somehow authorizes a State to exert its
legislation jurisdiction outside of its territorial limits.
Very briefly, the point I would make is that specifically
in the area of domestic relations--and it happens elsewhere in
conflicts of law and choice of law, but specifically in the
area of domestic relations--it is common for the rule regarding
a domestic relationship to come not necessarily from the State
in which the parties are physically present, but from some
other State, routinely the State of residence; a classic
example is the rule with which Congress has recently become
more familiar, that (within limits, and there are limits to it)
a marriage celebrated in one State, if valid in that State, is
valid in another State even if it would not have been valid if
celebrated in the second State.
The other question that S. 851 raises has to do with the
right to travel, with the fact that the Supreme Court has found
implicit in the Federal Union, an ability by adults largely to
choose their State of residence and therefore in many ways to
choose the legal regime that applies to them. I don't think
that S. 851 poses a serious constitutional problem here.
First, with respect to domestic relations, it is far from
clear--and this is a difficult and often debated matter--just
how far the unilateral act of one party to a domestic
relation--for example, the unilateral act of one spouse by
changing location--can change the domestic relations that
obtain between the spouses.
It is not necessary to address that question, which is a
difficult and complex one, because here we are talking about
minors who, by hypothesis, do not have even the constitutional
right to make their own choice regarding abortion, and I think
it therefore very likely do not have whatever the
constitutional right is in the sphere of domestic relations to
make a choice of place of residence so as to control the legal
regime that applies to them. So for those reasons, I think that
Senate bill 851 is constitutional.
Thank you, Senator.
[The prepared statement of Mr. Harrison appears as a
submission for the record.]
Senator Sessions. Thank you, Professor Harrison.
Professor Rubin.
STATEMENT OF PETER J. RUBIN, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY, WASHINGTON, D.C.
Mr. Rubin. Thank you, Senator Sessions. I have been asked
by the Committee to assess whether S. 851, the Child Custody
Protection Act now pending before the Senate, is consistent
with the Constitution of the United States. I am honored to
have the opportunity to convey my views to the Committee.
S. 851 would make it a Federal crime to assist a pregnant
minor to obtain a lawful abortion in a State other than her
State of residence and in accord with the less restrictive laws
of that State unless she complies with the more severe
restrictions her home State imposes for abortions sought by
minors within its own territorial limits. The statute does not
uniformly apply home State laws on pregnant minors who obtain
out-of-state abortions. It applies only where the woman seeks
to go from a State with a more restrictive regime into a State
with a less restrictive one.
The proposed statute would, if enacted, violate the
Constitution for three independent reasons. To begin with, it
violates basic principles of federalism, principles fundamental
to our constitutional order. States have the right to enact and
enforce their own laws governing conduct within their
territorial boundaries, and under the Privileges and Immunities
Clause of Article IV, Section 2, residents of each of the
United States have a right to travel to and from any State of
the Union for purposes that are legal there.
Neither your home State nor Congress may lock you into the
legal regime of your home State as you travel across the
country. Indeed, in the landmark right-to-travel decision Saenz
v. Roe, the Supreme Court recently reaffirmed this fundamental
principle, holding that even with explicit Congressional
approval, California could not carve an exception out from its
legal regime to provide to those who had recently come into the
State only the welfare benefits that they would have been
entitled to receive under the laws of their former States of
residence. And these were welfare laws that would operate far
less directly and less powerfully than would a special criminal
law restriction on primary conduct, like the proposal under
discussion today.
Under Article IV, neither Virginia nor Congress could, for
example, prohibit residents of Virginia, where casino gambling
is illegal, from traveling interstate to gamble in a casino in
Nevada. Senator Ensign, I am sure, knows that indeed the
economy of Nevada essentially depends upon this aspect of
federalism for its continued vitality. And people who like to
hunt cannot be prohibited from traveling to States where
hunting is legal in order to avail themselves of those States'
hunting laws just because such hunting may be illegal in their
home States.
The proposed law, though, amounts to a statutory attempt to
force a most vulnerable class of young women to carry the
restrictive laws of their home States strapped to their backs,
bearing the great weight of those laws like the bars of a
prison that follows them wherever they go.
And, of course, if home State legislation or Congressional
legislation may saddle the home State citizens with that
State's abortion regulation regime, then it may saddle them
with their home State's adoption and marriage regimes, as well,
and with piece after piece of the home State's legal fabric.
There are no constitutional scissors that can cut this process
short, no principled metric that can supply a stopping point.
You have heard a terrible, tragic story today that is
claimed to justify the constitutional departures this bill
represents. The States and the Congress have power within their
respective spheres to prohibit and punish sexual predators,
those who commit statutory rape, those who would coerce a
pregnant young woman across State lines to obtain an abortion
against her will. S. 851, though, does none of these things and
it rests on a principle that violates the basic premise upon
which our Federal system is constructed. It therefore violates
the Constitution of the United States.
Second, because of the cruel and dangerous method S. 851
employs to attempt to deter vulnerable pregnant young women,
young women who may be too frightened to seek a judicial bypass
or too terrified of physical abuse to notify a parent or legal
guardian who may indeed be the cause of the pregnancy, from
obtaining lawful abortions in States in which they do not
reside, the proposed statute also violates the Due Process
Clause of the Fifth Amendment.
Government may not attempt to deter a minor from engaging
in a particular activity by making it more dangerous. That is
the teaching of Carey v. Population Services International. The
proposed statute does not actually prohibit pregnant
adolescents from obtaining out-of-state abortions without
complying with the parental notification or consent laws of
their States of residence. It seeks, rather, to deter them from
doing so by denying them the assistance of any compassionate or
caring adult.
And it contains no exception where it is a pregnant young
woman's close friend or her aunt or grandmother or a member of
the clergy who accompanies her across a State line on this
frightening journey. Indeed, it does not exempt health care
providers, including doctors, from possible civil or criminal
penalties.
Under the proposed statute, the pregnant young woman is
left to make this perilous trip on her own and return alone
from a medical procedure that may have after-effects, including
bleeding or disorientation from anesthesia, or to seek an
abortion illegally and less safely in her own State of
residence. Under the Due Process Clause of the 14th Amendment,
this is not a permissible means of achieving even an otherwise
legitimate governmental end.
Finally, the proposed statute violates the undue burden
test for abortion regulation adopted by the Supreme Court in
Planned Parenthood of Southeastern Pennsylvania v. Casey. Under
the analytical approach articulated by the Court in that case,
the proposed statute has the unconstitutional purpose, and
would have the unconstitutional effect, of placing a
substantial obstacle in the path of the pregnant adolescents it
affects seeking to exercise their right to choose to terminate
a pregnancy.
In addition, the statute as now drafted lacks an exception
required under Casey and the Court's most recent abortion
decision.
Senator Sessions. Professor Rubin, if you will wrap up?
Mr. Rubin. I am wrapping it up, Senator.
It lacks an exception for the health of the pregnant woman.
Thank you. I apologize for my lack of brevity in writing
and in oral presentation. I look forward to your questions,
Senator.
[The prepared statement of Mr. Rubin appears as a
submission for the record.]
Senator Sessions. Very fine.
Professor Collett.
STATEMENT OF TERESA STANTON COLLETT, PROFESSOR OF LAW,
UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, MINNEAPOLIS, MINNESOTA
Ms. Collett. Mr. Chairman, Senator Ensign, I am delighted
to have the opportunity to testify today. The testimony I am
about to present does not represent the interests of my
institution or any other organization.
There are some fundamental facts that are being ignored by
the testimony that has been presented by other members of this
panel and Reverend Ragsdale, and those fundamental facts are
these: In fact, those States that have enacted parental
involvement laws number 44. Forty-four out of the 50 States
have attempted legislatively to ensure that parents are
involved to some degree in the minor's decision to obtain an
abortion.
Of those 44 States, 8 have been ruled unconstitutional by
either a State or Federal court because of some sort of
infirmity. Of the remaining States, ten are ineffective in
ensuring parental involvement because they allow some sort of
abortion provider bypass or some other adult to provide the
equivalent of parental consent or notification.
But notwithstanding that, 25 States in this Union have
determined that parents should either be notified or give
consent prior to their minor daughter being provided an
abortion. Why is that? Because it represents the huge consensus
in this country that a minor should have parental guidance in
the decision on how to deal with an unplanned pregnancy.
And what is really telling is a survey by MTV, that great
conservative media outlet. MTV, of their viewers ages 18
through 24, reflects that 68 percent agree that parental
consent, not even notification--68 percent agree that parental
consent should be in place.
When you do a more general survey, for the past 10 years it
has held steady that 70 percent or more Americans believe that
parental consent or notification should be in effect. This is a
broad consensus on an issue that is so divisive as abortion; it
is amazing. In fact, Senators, this is one of the few places
where we have a win-win situation.
And the United States Supreme Court agrees. They have
consistently stated that there are, in fact, reasons that
parents should be involved in a minor's decision to obtain an
abortion. The restriction they have placed on that is that in
those few cases where parents might not respond reasonably,
there must be the opportunity for a parental bypass, where it
is a parental consent statute.
Now, how often does judicial bypass occur? Reverend
Ragsdale and Professor Rubin have suggested that this is an
onerous and burdensome circumstance, and yet the empirical
evidence that we have regarding these judicial bypass
proceedings suggests quite the opposite.
In fact, a survey done of the Massachusetts proceedings in
these cases show that those hearings average 12.12 minutes,
and, in fact, that in those cases almost every bypass petition
that was presented was granted. In my home State of Minnesota,
a similar survey indicated that almost every bypass petition
that was presented to the courts was granted.
In the State of Texas, we saw an increase in the number of
parents that were notified. At least according to Planned
Parenthood's own statistics, prior to the passage of our
Parental Notification Act, 67 percent of all parents were
notified. But after our Parental Notification Act, well over 90
percent of all parents now are involved in their minor
daughter's attempt to obtain an abortion.
Is this a good and necessary thing? Well, according to a
case that was just settled down in Texas, a minor who went
through a judicial bypass with the assistance of one of these
interested bystanders, with the assistance of an attorney that
was trained through Planned Parenthood, told her lawyer that
she was receiving psychiatric assistance and, in fact, was
taking psychotropic drugs.
The lawyer suggested that she not tell the judge, so she
didn't. The consequence of the abortion was tremendous
psychological disturbance. That is how the parents found out
that she had had the abortion. So the Department of Health in
Texas was sued for failure to check up on whether or not the
abortion clinics were adequately complying with the informed
consent requirements under the State of Texas law. That matter
has now been settled and we hope to see the State of Texas
Department of Health ensuring greater compliance with informed
consent.
Parents, according to the United States Supreme Court, are
in the best position to ensure the medical well-being of their
minor daughters. And according to Planned Parenthood's own
research, well over 80 percent of those parents will agree with
their daughter's decision to obtain an abortion.
I see I am out of time, Mr. Chairman, so I will stop there.
[The prepared statement of Ms. Collett appears as a
submission for the record.]
Senator Sessions. Thank you. Well, three good
presentations.
Professor Rubin, you mentioned traveling in interstate
commerce to gamble or whatever other example you gave there. I
was thinking about how Senator Ensign and his other
veterinarian brother, Wayne Allard, have a bill to prohibit
transportation in interstate commerce of fighting cocks for the
purpose of cock-fighting in a State that allows it from States
that don't allow it.
How would you opine on that one?
Mr. Rubin. I think that is in the same category as what
Professor Harrison described about transportation of liquor in
interstate commerce. I completely agree that Congress' primary
authority derives from the right to regulate interstate
commerce and to regulate the movement of goods in interstate
commerce.
Human beings are not goods being transported in interstate
commerce. They are not liquor, they are not fighting cocks.
They are individuals with the right in our Federal system to
travel from State to State that has been recognized by the
Supreme Court and to take advantage of the laws in the States
into which they travel.
So Article IV, Section 2, of the Constitution reads, ``The
citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.'' This has been
held to mean that they are entitled to obtain--in Doe v.
Bolton, in 1973, the Court held they are entitled to obtain
medical services, including abortion services, on the same
terms as people in the State of destination. So that law is, I
think, completely constitutional.
Senator Sessions. What about the Mann Act, the interstate
transportation for the purpose of prostitution?
Mr. Rubin. The Mann Act is different from this statute. I
believe that this proposed statute, Senator, is actually unique
in that it attempts to project the rule of the person's home
State into another State. This doesn't create a Federal uniform
rule that says no one moving in interstate commerce may have an
abortion unless they comply with some Federal parental consent
law. That would be a different statute from this. That is a
Federal statute which says moving in interstate commerce for
purposes of prostitution is unlawful.
Senator Ensign. Professor Rubin, would you just let me
follow that up?
Mr. Rubin. Senator, yes, please.
Senator Ensign. In the State of Nevada, in several
counties, prostitution is legal. Would a law be constitutional
that says that you cannot, under the Mann Act, have an adult
bring a 12-year-old girl to the State of Nevada if it was legal
in the State of Nevada.
Mr. Rubin. Is it legal for a 12-year-old girl to be a
prostitute in the--
Senator Ensign. No. I am saying if it was, you could say
that in any State. That is absolutely allowed.
Mr. Rubin. I am not sure--
Senator Ensign. Sure, it is.
Mr. Rubin. I think there might be some constitutional
difficulty with a law that purported to legalize prostitution
by a 12-year-old.
Senator Ensign. In a 15-year-old. Whatever it is, I am
saying if it was legal for a teenager, would the Mann Act be
constitutional in that case?
Mr. Rubin. The Mann Act sets a uniform national standard
and that is a different case from this case, which purports to
have the law that applied depend upon the State of residence of
the person engaged in the act.
If the Mann Act were rewritten so that it only applied to
people whose home States didn't permit the act that they were
going to do, so that the question would be what is your home
State's law, then that would be this. But the Mann Act creates
a uniform national rule and could create a uniform national
rule such as you are describing.
Senator Sessions. Professor Harrison, do you agree that
commerce does not include people, and how would you analyze the
argument that Professor Rubin has made? And then I will ask
Professor Collett to respond, also.
Mr. Harrison. For one person to transport another person
across State lines is, per the Mann Act, interstate commerce.
And as you said in your opening statement, that has routinely
been upheld. Many of Congress' regulation of interstate
commerce are specifically tied to interstate movement,
including interstate movement by the person committing the
crime, although that is not how S. 851 operates.
So although sometimes the interstate movement of persons is
different from the interstate movement of goods for
constitutional purposes, of course, there is no bright line
principle that Congress can't regulate the interstate movement
of persons, and in particular can't regulate one person's
decision to transport somebody else interstate. Again, that is
the Mann Act.
As to the question whether the Mann Act is different
because it adopts a uniform national policy, a uniform national
rule, rather than tying the rule to the rule of a particular
State, to get back to the interstate liquor cases from the
early part of the 20th century, there was, in fact, a
controversy on the Court and among commentators--and indeed
President Taft had a strong view on this, but it was not
ultimately the view that prevailed--whether Congress, in order
to legislate in that area, had to do so uniformly.
And the Court's answer was that it did not, and that the
Wilson Act, which tied the legality of the interstate
transportation of liquor to the substantive law of the State
into which it was being transported, was constitutional; that
was not an impermissible delegation of Congressional power to
the State, which was said to be the difficulty.
So using the law of the State as the trigger for the
substantive Federal rule, which is what S. 851 does, is also
what the Wilson Act did, and the Court upheld the Wilson Act.
One of the arguments was, no, you can't do that, you can't tie
it to the State rule; it has to be uniform. A majority of the
Court rejected that.
Indeed, the principle of the Wilson Act is now in Section 2
of the 21st Amendment, the amendment that repealed the 18th
Amendment that established nationwide prohibition. Section 2 of
the 21st Amendment forbids--and it is almost the only section
of the Constitution that actually forbids private conduct--the
importation into a State of liquor in violation of the laws of
the State; that is to say, it ties the Federal rule to the
choice that the State has made.
So not only does the Constitution permit that, in the one
area in which it actually has its own rule about this, the
Constitution does that. So that phenomenon is now a familiar
one in the law. I think the harder question, primarily the
harder policy question, is whether the State with the primary
claim to regulate is the State in which the minor is physically
located at the time of the abortion or the State of residence,
although as I indicated, it is routine for the law of domestic
relations to tie domestic rights and obligations, including
parental rights and obligations, to the State of residence
rather than the State in which someone is temporarily located.
Senator Sessions. Professor Collett.
Ms. Collett. In fact, Congress has had to intervene where,
for example, in a divorce situation parents have tried to flee
the State of residence to avoid child support obligations,
tried to flee the State of residence to try to avoid custodial
orders, and they have created uniform Federal laws. So that is
not an unusual or unprecedented move and there is no question
about the enforceability of that.
Senator Sessions. This bill does not prohibit travel. It
prohibits travel for the purpose, in essence, of evading a
parental notification law of the State, and it prohibits a
third party from causing this to occur. It does not even
prohibit the minor from voluntarily, on their own, going out of
State.
How does that impact it, Mr. Harrison?
Mr. Harrison. Again, that makes it much like the Mann Act.
Senator Sessions. Professor Rubin.
Mr. Rubin. Well, I guess there are two points. As to the
latter point that the young woman can still go alone, as I have
described, I think that this is an independent reason why it is
unconstitutional. To require a young woman in extremis to find
cab fare or take multiple buses, as Reverend Ragsdale described
in her testimony--I think you were out of the room during that
part of her description--
Senator Sessions. I remember reading that.
Mr. Rubin. --independently violates the Due Process Clause.
Senator Sessions. I am not a court, but I am not too into
that argument. I am not a judge. It is okay for the record, but
what about this interstate travel and the argument you made
originally?
Mr. Rubin. If you look at a case like Saenz v. Roe, the
court is only applying a law to people who have already
traveled interstate. The fact that they are unable to take
advantage of the benefits of the law of the destination State
is held as a matter of law to have a deterrent effect on the
right of travel and therefore to infringe it. And the same is
true here. Whether it is an assistance of a person or the
person is still allowed to travel, the avowed purpose of this
law is to keep young women from doing this.
And I would also just say you used the word ``evasion.'' It
isn't an evasion of their home State's laws. It is an avoidance
of the legal regime of one State by going into another State.
That is in my written testimony as well.
Senator Sessions. Professor Collett.
Ms. Collett. But the anecdotal story of Reverend Ragsdale
is not borne out by, in fact, the study that was done by the
Alan Gutmacher Institute, which is, of course, Planned
Parenthood's research arm. A survey of 1,500 unmarried minors
having abortions revealed that when neither parent knows of the
abortion, it is the boyfriend who accompanies them. Eighty-nine
percent said it was the boyfriend who was involved in making
the decision to have the abortion, and 93 percent if the minor
was 15 or younger.
Senator Sessions. Those are pretty dramatic statistics. You
said that was Planned Parenthood's statistics?
Ms. Collett. Yes. It is a study done by Stanley Henshaw,
who is their demographer, and it is published at 24 Family
Planning Perspectives 196, in 1992.
Senator Sessions. Well, I think that adds a lot of
credibility to the concern most people have about parental
consent. Intuitively, that is the issue that has driven
legislatures, at least 40-some-odd, to pass some sort of law
dealing with this.
Professor Harrison, if the underlying State law for some
reason over-reaches and places too great a burden on the right
to choose provided for in Roe and Casey and other cases, is
that a defense that a good lawyer can make to this matter?
Mr. Harrison. Absolutely. Congress can reinforce only State
laws that are themselves valid, absolutely.
Senator Sessions. Would you agree with that, Professor
Rubin? In other words, if there is some State out there that
has a law that has gone too far and is not valid under Supreme
Court interpretation of the Constitution, could they raise that
in defense to a charge like this?
Mr. Rubin. I don't know the answer to that question under
the text of your statute. My federalism objection, which I
gather is the one that interests you most, assumes the validity
of the State laws. They simply can't be projected into the
other State, carried on the back of the State resident.
Senator Sessions. Professor Collett, do you think that
would be a matter that could be asserted? I mean, we would not
want to draft the statute in such a way that it would prohibit
a person raising this defense, assuming they could be able to
raise it.
Ms. Collett. I agree with Professor Harrison. The eight
State statutes that have been declared constitutionally infirm
are not resurrected by this statute.
Senator Sessions. I don't claim to be a constitutional
scholar, but I have prosecuted lots of cases and I have seen
lots of statutes pass here.
Professor Rubin, you remember the big case of the gun on
the schoolyard that the Supreme Court struck down for lack of
interstate commerce nexus. What was your view on that? Have you
expressed it? You don't have to if you haven't expressed it.
Mr. Rubin. I haven't expressed a view on the Lopez case. I
say in my testimony that I don't think that an objection to
this on Lopez grounds is well taken; that is, I think that if
there weren't this federalism problem, the nexus to interstate
commerce that you have built into the bill is adequate under
the Court's commerce power as it has been construed under Lopez
and following cases.
Senator Sessions. In recent years, Congress has passed laws
that do not have a nexus, and Lopez, in my view, was one of
them. All of the old statutes--the Mann Act, interstate
transportation of stolen property, motor vehicles, kidnapping--
are directly tied to interstate commerce. This bill is directly
tied to interstate commerce.
Mr. Rubin. But it does have, Senator--excuse me.
Senator Sessions. So am I curious about your view on that.
Mr. Rubin. It does, though, have this, I think, unique
structure of saying that the law that is applicable to an
individual in a State is the law of his or her home State, her
State of residence; that you can't shake that however far you
go. And that is different from, I believe, all other Federal
statutes.
It was the structure of--and I mean no comparison in terms
of gravity--it was the structure of the fugitive slave laws
under the specific authorization of the fugitive slave clause
which said that--and, in fact, it is interesting because these
are all in Article IV. Full faith and credit has to be given to
judgments of different States. That is Professor Collett's
example of a divorce or whatever. That is a judgment of a
State.
Section 2: the citizens of each State are entitled to
privileges and immunities of citizens in the several States.
But then down below, two exceptions; I guess they are
exceptions. If you commit a crime in one State, the other State
has to extradite you. And no person held to service or labor in
one State under the laws thereof, escaping into another, in
consequence of any law or regulation therein, shall be
discharged from such service or labor.
This is the only example I know of in American history
where the law of a destination State was held invalid and where
someone was bound by the law of the State that they had
departed from. It is a highly unusual structure of law and it
doesn't support federalism. Federalism is different States with
different laws. It really cuts against the State's right, the
destination State's right to have its own laws.
Senator Sessions. Well, I am not sure I agree with that
because the State's lawful exercise of support of parental
rights is undermined.
Mr. Rubin. Well, the destination State has made a
determination.
Senator Sessions. I know, but that has little or no nexus
to the child.
Let me ask this of the three of you. It seems to me the act
of transporting this minor child across State lines is what is
prohibited. That essentially commences at least in the State
where the prohibition exists. Would that not give it
constitutional support?
Mr. Harrison. That is true. I don't think it needs that,
Senator, and I want to say something about the point of the
conflicting jurisdictions of the States because that, I think,
is the trickiest question here.
Senator Ensign isn't here anymore, but I want to talk about
something else involving Nevada, which is the Nevada quickie
divorce, another problem from the conflict of laws and the
constitutional law of the conflict of laws from earlier in the
20th century.
The point I want to make is that Nevada made possible the
so-called quickie divorce by having a short period of
residence; that is to say by permitting one party to a marriage
to obtain residence in Nevada quickly and thereby give Nevada
the jurisdiction to decree a divorce, although as it turned out
not necessarily the jurisdiction to control the property, the
other part of the domestic relationship, in other States.
The point I want to make is that even to get the
jurisdiction to do that, to operate, as they said in those
days, on the marital thing, Nevada had to become the State of
residence. The rule of conflict of laws at the time--and I
think it is still the same, it certainly was then--was that
just passing through a State, just being physically present in
a State, did not give that State, the State you were physically
in, if you were a member of a domestic relationship, the right
to control the rights and responsibilities of that domestic
relationship, and in particular to grant the divorce.
In order to obtain the divorce, it was necessary to become
resident in the State, even if only for a relatively short
period of time. So specifically in the context of domestic
relations, something that might look extra-territorial, where
the law of the State of residence continues to control the
domestic relationship--here, the parent-child relationship--
actually is not unusual, and the law of divorce is an example.
Senator Sessions. All right, maybe we have covered that. I
think that is really interesting. Well, I thank all of you for
your very insightful comments. This deals with an issue that I
think is important. I have no doubt of the public policy
validity of it. I feel very strongly about that.
I do not feel like there has been any oppression of a minor
child to take care that they consult their parent before they
undertake such a serious action as an abortion. So I feel good
about that. I do want to make sure that if we have any errors
in drafting that could impact the Constitution, I would be
prepared to consider those. Frankly, I remain pretty convinced
as a former prosecutor that if somebody takes somebody out of a
State, across a State line, they have acted in violation of the
State authority and that this could be a Federal offense.
I want to ask you one thing I didn't quite get, Professor
Harrison. On the liquor laws, I don't quite understand. What
did it exactly prohibit?
Mr. Harrison. The Wilson Act operates like Section 2 of the
21st Amendment now operates to forbid the importation into a
State of liquor in violation of the laws of the State. So it
tied the Federal rule to the State rule. It didn't say no
interstate transportation of liquor. It said no interstate
transportation of liquor to a dry State, basically, which is
the rule now constitutionalized in Section 2 of the 21st
Amendment. It was a matter of some controversy then, but the
court sustained a Federal statute that didn't impose a uniform
national rule, didn't say no interstate transportation of
liquor, but rather said whether the liquor can be transported
into a State depends on the law of the State. The court
approved that in the Wilson Act cases.
Senator Sessions. Well, very good.
Senator Ensign's entire statement will be made a part of
the record, as will Senator Hatch's, and the record will be
open for 7 days. I note that my colleagues from the other side
of the aisle had submitted some names for witnesses, but I am
sorry that they didn't come to participate in this. I think it
is an important social issue in America and I think the
Congress of the United States has every right to act
constitutionally, if it is able, to respond to the public
interest.
I thank all of you for your testimony. It has been a
worthwhile hearing. If there is nothing else, we are adjourned.
[Whereupon, at 4:36 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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