Child custody protection act passed

2004
CHILD CUSTODY PROTECTION ACT

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://www.house.gov/judiciary

COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida

MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa

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JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution

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STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ADAM B. SCHIFF, California

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

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OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution

The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution

Ms. Joyce Farley, Victim, Dushore, Pennsylvania
Oral Testimony
Prepared Statement

Mr. Mark D. Rosen, Associate Professor (with tenure), Chicago-Kent College of Law
Oral Testimony
Prepared Statement

Ms. Lois M. Powell, Minister, United Church of Christ, on behalf of the Religious Coalition for Reproductive Choice
Oral Testimony
Prepared Statement

Ms. Teresa Stanton Collett, Professor of Law, University of St. Thomas School of Law
Oral Testimony
Prepared Statement

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Material Submitted for the Hearing Record

Statement by Professor John C. Harrison submitted by Chairman Chabot

Advertisements submitted by Chairman Chabot

Prepared Statement of the Honorable Ileana Ros-Lehtinen, a Representative in Congress From the State of Florida

Statement submitted by the American Academy of Pediatrics

A letter and testimonies submitted by the Honorable Nadler

CHILD CUSTODY PROTECTION ACT

TUESDAY, JULY 20, 2004

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

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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.

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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.

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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:]

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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.

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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.

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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.

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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?

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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. 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.

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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.

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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.

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

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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.

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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.

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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.

[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.''

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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.

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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.

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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.

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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

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Congress has the power to enact H.R. 1755 under its Commerce Clause powers. (see footnote 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 . . .'' (see footnote 2) The power to regulate the transport of passengers is derived from Congress' powers over the ''channels of interstate commerce,'' (see footnote 3) and recent Supreme Court case law continues to hold that ''Congress may regulate the use of the channels of interstate commerce.'' (see footnote 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,'' (see footnote 5) that is to say, activities that themselves are not commerce but that ''substantially affect interstate commerce.'' (see footnote 6)

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. (see footnote 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.'' (see footnote 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,'' (see footnote 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. (see footnote 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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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. (see footnote 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.

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. (see footnote 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. (see footnote 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. (see footnote 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. (see footnote 15)

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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.'' (see footnote 16) H.R. 1755 is not inconsistent with this dictum (see footnote 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.'' (see footnote 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.'' (see footnote 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. (see footnote 20)

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.

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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. (see footnote 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. (see footnote 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. (see footnote 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. (see footnote 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. (see footnote 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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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. (see footnote 26) If the ''end be legitimate'' then ''all means which are appropriate, which are plainly adapted to that end'' are constitutional. (see footnote 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, (see footnote 28) and it seems plausible that measures of the sort found in H.R. 1755 are ''useful'' (see footnote 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.

III. CRITICAL EXAMINATION OF POSSIBLE CONSTITUTIONAL OBJECTIONS TO H.R. 1755

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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. (see footnote 30) Today, state laws regularly apply to persons, transactions, and occurrences that occur outside the state's borders. (see footnote 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. (see footnote 32)

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 §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 §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 §1.03(1)(f).

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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. (see footnote 33) The federal act provided that State B was required to give effect to State A's protective order. (see footnote 34) Similarly, while states on their own may not enact protectionist legislation that disallows goods from other states to cross their borders, (see footnote 35) the Commerce Clause allows Congress to grant states such powers to discriminate against goods from other states. (see footnote 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.

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.

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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. (see footnote 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.

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. (see footnote 38)

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.'' (see footnote 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.'' (see footnote 40) The minor's right to travel to another state is wholly unimpeded by H.R. 1755.

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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. (see footnote 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. (see footnote 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,'' (see footnote 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. (see footnote 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.'' (see footnote 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,'' (see footnote 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.

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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. (see footnote 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.

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.'' (see footnote 48) H.R. 1755 provides an exception, however, only ''if the abortion was necessary to save the life of the minor.'' (see footnote 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 (see footnote 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.

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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.

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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.

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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?

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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.

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[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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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