On June 3, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts heard testimony concerning the Child Custody Protection Act (S. 851). Sponsored by Sen. John Ensign (R-NV), the measure would make it a federal crime to transport a minor across state lines to obtain an abortion, thereby evading parental consent and notification laws. Violators could be subject to $100,000 in fines and a jail term up to one year.
Presiding over the hearing, Sen. Jeff Sessions (R-AL) explained that the purpose of the Child Custody Protection Act is to prevent the circumvention of state parental notification and consent laws. He argued that the measure is “not a radical or extreme proposal,” but “good public policy.” Citing his experience as a prosecutor, Sen. Sessions concluded that the bill is constitutional. No Democratic Senators attended the hearing.
The Rev. Doctor Katherine Hancock Ragsdale, an Episcopal priest from Massachusetts, shared her personal experience of driving a 15-year-old girl to Boston for an abortion. She explained that the girl had gone to the school nurse for assistance because she “feared for her safety if her father found out and there was no other relative close enough to help.” Rev. Ragsdale said that she did not take the girl across state lines and did not break any state laws, adding, “But if either of those things had been necessary in order to help her, I would have done them.” She argued that instead of debating the Child Custody Protection Act, “we should be talking…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 childcare and welfare; about violence at home and on the streets; not about new ways to punish victims and those who care for them.”
The subcommittee also heard testimony from a Pennsylvania woman whose 13-year-old daughter, Crystal, was taken to New York for an abortion. Ms. Farley explained that her daughter developed complications from the abortion, but the physician that performed the procedure “was not available and refused to supply necessary medical records to a physician that was available to provide Crystal the medical care she needed.” Ms. Farley urged Congress to “put aside your personal opinions on abortion and to 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.” She added, “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.”
Teresa Stanton Collett, a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, said that the Child Custody Protection Act would “significantly advance the legitimate health and safety interests of young girls experiencing an unplanned pregnancy,” and would “safeguard the ability of states to protect their minor citizens through the adoption of effective parental involvement statutes.” She argued that parental notification of a young girl’s decision to have an abortion would improve her medical care because 1) it would allow parents to assist their daughter in the selection of the abortion provider; 2) it would insure that parents have the opportunity to provide additional medical history to abortion providers before the procedure; and 3) it would insure that parents have adequate knowledge to recognize and respond to any post-abortion complication that may develop. Professor Collett also contended that parental notification laws would provide increased protection against exploitation of minor girls by adult men. She cited a survey of 1,500 minors who have had an abortion in which 89 percent of the girls said their boyfriend was involved in the decision to have the abortion, and 76 percent said their boyfriend helped pay for the abortion. Professor Collett stated, “Clearly, a number of young girls who obtained abortions without their parents’ knowledge were encouraged to do so by a sexual partner who could be charged with statutory rape. Secret abortions do nothing to expose these men’s wrongful conduct. In fact, by aborting the pregnancy abusive partners avoid the public evidence of their misconduct and are licensed to continue the abuse. Parental notification laws insure that parents have the opportunity to protect their daughters from those who would victimize their daughters further.”
Georgetown University law professor Peter Rubin said that the Child Custody Protection Act would violate the Constitution because it “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 the District of Columbia to travel to and from any state of the Union for lawful purposes.” Professor Rubin contended that the bill also would violate the Due Process Clause of the Fifth Amendment, which states that government “may not attempt to deter a minor from engaging in a particular activity by making it more dangerous.” Clarifying his argument, he stated, “Here 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, including family members…This bill leaves the scared, pregnant minor on her own.” Professor Rubin noted that the bill would violate the “undue burden” test for abortion regulation adopted by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. He said that the measure also lacks an exception for the health of the pregnant woman, which is required by law under Stenberg v. Carhart.
