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106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-204

======================================================================



 
                      CHILD CUSTODY PROTECTION ACT

                                _______


 June 25, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Canady of Florida, from the Committee on the Judiciary, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1218]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1218) to amend title 18, United States Code, to 
prohibit taking minors across State lines in circumvention of 
laws requiring the involvement of parents in abortion 
decisions, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................          18
Committee Consideration....................................          18
Vote of the Committee......................................          18
Committee Oversight Findings...............................          22
Committee on Government Reform Findings....................          22
New Budget Authority and Tax Expenditures..................          22
Congressional Budget Office Cost Estimate..................          22
Constitutional Authority Statement.........................          23
Section-by-Section Analysis................................          24
Changes in Existing Law Made by the Bill, as Reported......          25
Dissenting Views...........................................          27

                          Purpose and Summary

    H.R. 1218, the Child Custody Protection Act, has two 
primary purposes. The first is to protect the health and safety 
of young girls by preventing valid and constitutional state 
parental involvement laws from being circumvented. The second 
is to protect the rights of parents to be involved in the 
medical decisions of their minor daughters.
    To achieve these purposes, H.R. 1218 makes 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 parental notification law. 
Violation of the Act is a Class One misdemeanor, carrying a 
fine of up to $100,000 and incarceration of up to one year.
    H.R. 1218, introduced by Congresswoman Ileana Ros-Lehtinen, 
will strengthen the effectiveness of state laws designed to 
protect children from the health and safety risks associated 
with abortion. In many cases, only a girl's parents know of her 
prior psychological and medical history, including allergies to 
medication and anesthesia. Also, parents are usually the only 
people who can provide authorization for post-abortion medical 
procedures or the release of pertinent data from family 
physicians. When a pregnant girl is taken to have an abortion 
without her parents' knowledge, none of these precautions can 
be taken. Thus, when parents are not involved, the risks to the 
minor girl's health significantly increase. H.R. 1218 is 
designed to effectuate state laws which safeguard minor girls' 
physical and emotional health by ensuring parental involvement 
in their abortion decisions.
    H.R. 1218 does not supercede, override, or in any way alter 
existing state parental involvement laws. Nor does the Act 
impose any parental notice or consent requirement on any state. 
H.R. 1218 addresses the interstate transportation of minors in 
order to circumvent valid, existing state laws, and uses 
Congress' authority to regulate interstate activity to protect 
those laws from evasion.

                Background and Need for the Legislation

    H.R. 1218 is designed to address the problem of people 
transporting minor girls across state lines in defiance of 
parental consent and notification laws. Currently, more than 20 
states require the consent or notification of at least one 
parent (or court authorization) before a minor can obtain an 
abortion.\1\ These parental involvement laws enjoy overwhelming 
public support.\2\ Nevertheless,

these laws are frequently circumvented by those who transport 
minors in interstate commerce to abortion providers in states 
that do not have parental notification or consent laws. H.R. 
1218 would curb the interstate circumvention of these laws, 
thereby protecting the rights of parents and the physical and 
mental health of vulnerable minors.
---------------------------------------------------------------------------
    \1\ In addition, parental involvement laws in 12 other states are 
currently not in effect because of court action regarding those laws.
    \2\ A 1998 New York Times/CBS News poll found that 78 percent of 
Americans support parental consent before abortions are performed on 
girls under the age of 18. Parental notification laws receive even 
greater support. A 1992 national poll by the Wirthlin Group found that 
80 percent of Americans support requiring parental notification before 
an abortion is performed on a girl under age 18. It is not surprising, 
then, that 78% of registered voters in a recent poll by Baselice & 
Associates ``strongly disagreed'' when asked whether ``a person 
[should] be able to take a minor girl across state lines to obtain an 
abortion without her parents' knowledge.'' Another 7% ``somewhat 
disagreed,'' while only 3% ``somewhat agreed'' and 6% ``strongly 
agreed.''
---------------------------------------------------------------------------
Health Risks Associated With Circumvention of Parental Involvement Laws
    With respect to state laws requiring parental or judicial 
involvement in minors' abortion decisions, federal legislation 
is warranted due to the scope of the practice of avoiding such 
laws and the profound physical and psychological risks of an 
abortion to a minor. As the Supreme Court has observed, ``[t]he 
medical, emotional, and psychological consequences of an 
abortion are serious and can be lasting; this is particularly 
so when the patient is immature.'' \3\
---------------------------------------------------------------------------
    \3\ H.L. v. Matheson, 450 U.S. 398, 411 (1981).
---------------------------------------------------------------------------
    The taking of an underage girl out of state for an abortion 
by someone who may have no knowledge of her prior medical or 
psychological history poses many dangers which could be avoided 
through the involvement of her parents. A parent would be able 
to alert the abortionist to any known allergies to anesthesia 
and medication, provide pertinent information from the girl's 
medical or psychological history, and provide authorization for 
the release of pertinent data from family physicians.
    Moreover, in light of the dangers involved with the 
abortion procedure itself, the fact that an adult would take a 
minor out of state for such a procedure without notifying her 
parents is particularly troubling. Hemorrhaging, perforation or 
ripping of the uterus, anesthesia complications, and even death 
are all risks of abortion procedures. Parents have a right to 
know when their child seeks to undergo a procedure entailing 
such risks. Unlike an abortion clinic counselor or another 
adult, who may have only a transitory role in the minor's life, 
it is the parents who play a permanent role and who are best 
able to fully attend to the child's well-being even beyond the 
abortion.
    Once the girl returns home, she may suffer physical 
complications from the abortion. If the parents are aware that 
their daughter has had an abortion, that knowledge could be 
critical to ensuring that the young girl receives treatment in 
a timely fashion with the onset of symptoms. If the parents 
remain ignorant of the abortion, however, they will be unable 
to provide the benefit of their knowledge and expertise to 
their young daughter in a timely manner if complications 
develop.
    This position has the support of Dr. Bruce A. Lucero, an 
abortionist who performed some 45,000 abortions over the course 
of his career. Dr. Lucero, who has supported the Child Custody 
Protection Act, wrote an op-ed for The New York Times about his 
own experience with minor girls seeking abortions. ``In almost 
all cases,'' Dr. Lucero wrote, ``the only reason that a teen-
age girl doesn't want to tell her parents about her pregnancy 
is that she feels ashamed and doesn't want to let her parents 
down.'' \4\ However, according to Dr. Lucero, ``parents are 
usually the ones who can best help their teen-ager consider her 
options. And whatever the girl's decision, parents can provide 
the necessary emotional support and financial assistance.'' \5\ 
Moreover, Dr. Lucero explained that ``patients who receive 
abortions at out-of-state clinics frequently do not return for 
follow-up care, which can lead to dangerous complications. And 
a teenager who has an abortion across state lines without her 
parents' knowledge is even more unlikely to tell them that she 
is having complications.'' \6\
---------------------------------------------------------------------------
    \4\ Bruce A. Lucero, M.D., Parental Guidance Needed, N.Y. Times, 
July 12, 1998, section 4, at 1.
    \5\ Id.
    \6\ Id.
---------------------------------------------------------------------------
    The long-term physical consequences of abortion are well 
known, including, as the Supreme Court has recognized, ``an 
increased risk of complication in subsequent pregnancies.'' \7\ 
The effects of an abortion decision may remain with an 
adolescent for the rest of her life. That is all the more 
reason that her parents' right to be involved should not be 
usurped by another adult surreptitiously taking her out of 
state.
---------------------------------------------------------------------------
    \7\ Matheson, 450 U.S. at 411 n.20.
---------------------------------------------------------------------------
    Young adolescent girls are particularly at risk of certain 
detrimental medical consequences from an abortion. For 
instance, there is a greater risk of cervical injury associated 
with suction-curettage abortions (at 12 weeks' gestation or 
earlier) performed on girls 17 or younger.\8\ Cervical injury 
is of serious concern because it may predispose the young girl 
to adverse outcomes in future pregnancies.\9\ Girls 17 or 
younger also face a two and a half times greater risk of 
acquiring endometritis following an abortion than do women 20-
29 years old.\10\
---------------------------------------------------------------------------
    \8\ See Willard Cates, Jr., M.D., M.P.H., Kenneth F. Schulz, M.B.A. 
& David A. Grimes, M.D., The Risks Associated With Teenage Abortion, 
The New England Journal of Medicine, Sept. 15, 1983, at 621-624.
    \9\ See id. at 624.
    \10\ See Burkman et al., Morbidity Risk Among Young Adolescents 
Undergoing Elective Abortion, Contraception, vol. 30 (1984), at 99-105.
---------------------------------------------------------------------------
Testimony from Parents
    At hearings during the 105th and 106th Congresses, the 
Subcommittee on the Constitution heard testimony from two 
mothers whose daughters were secretly taken for abortions, with 
devastating consequences.
    Eileen Roberts testified that her 13 year-old daughter was 
encouraged by a boyfriend, with the assistance of his adult 
friend, to obtain a secret abortion.\11\ The adult friend drove 
Ms. Roberts' daughter to an abortion clinic 45 miles away from 
her home and paid for their daughter to receive the 
abortion.\12\ After two weeks of observing their daughter's 
depression, Ms. Roberts and her husband learned that the young 
girl had an abortion from a questionnaire they found under her 
pillow, which their daughter had failed to return to the 
abortion clinic.\13\
---------------------------------------------------------------------------
    \11\ See Child Custody Protection Act: Hearings on H.R. 1218 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Cong. (May 27, 1999) (statement of Eileen Roberts).
    \12\ See id. While Ms. Roberts' daughter was not taken to another 
state, her story is illustrative of the harms involved when a child is 
secretly taken away from her parents for an abortion. After this 
experience, Ms. Roberts formed an organization called Mothers Against 
Minor Abortions (MAMA). Ms. Roberts testified: ``I speak today for 
those parents I know around the country, [whose] daughters have been 
taken out of state for their abortions.'' Id.
    \13\ See id.
---------------------------------------------------------------------------
    Ms. Roberts' daughter was then hospitalized as a result of 
the depression, and a physical examination revealed that the 
abortion had been incompletely performed and required surgery 
to repair the damage done by the abortionist.\14\ The hospital 
called Ms. Roberts and told her that they could not do 
reparative surgery without a signed consent form.\15\ The 
following year, Ms. Robert's daughter developed an infection 
and was diagnosed with having pelvic inflammatory disease, 
again requiring a two day hospitalization for antibiotic 
therapy and requiring a signed consent form.\16\ Ms. Roberts 
and her family were responsible for over $27,000 in medical 
costs all of which resulted from this one secret abortion.\17\
---------------------------------------------------------------------------
    \14\ See id.
    \15\ See id.
    \16\ See id.
    \17\ See id.
---------------------------------------------------------------------------
    Joyce Farley, the mother of a minor girl, reported how her 
12 year-old daughter was provided alcohol, raped, and then 
taken out of state by the rapist's mother for an abortion.\18\ 
In the words of Joyce Farley, the abortion was arranged to 
destroy evidence--evidence that her 12 year-old daughter had 
been raped.\19\ On August 31, 1995, her daughter, who had just 
turned 13, underwent a dangerous medical procedure without 
anyone present who knew her past medical history (as shown by 
the false medical history that was given to the 
abortionist).\20\ Following the abortion, the mother of the 
rapist dropped off the child in another town 30 miles from the 
child's home.\21\ The child returned to her home with severe 
pain and bleeding which revealed complications from an 
incomplete abortion.\22\ When Joyce Farley contacted the 
original clinic that performed the abortion, the clinic told 
her that the bleeding was normal and to increase her daughter's 
Naprosyn, a medication given to her for pain, every hour if 
needed.\23\ Fortunately, Ms. Farley, being a nurse, knew this 
advice was wrong and could be harmful, but her daughter would 
not have known this.\24\ Because of her mother's intervention, 
Ms. Farley's daughter ultimately received further medical care 
and a second procedure to complete the abortion.\25\
---------------------------------------------------------------------------
    \18\ See Child Custody Protection Act: Hearings on H.R. 3682 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
105th Cong., (May 21, 1998) (statement of Joyce Farley).
    \19\ See id.
    \20\ See id.
    \21\ See id.
    \22\ See id.
    \23\ See id.
    \24\ See id.
    \25\ See id.
---------------------------------------------------------------------------
The Prevalence of This Interstate Activity
    There is no serious dispute regarding the fact that the 
transportation of minors across state lines in order to obtain 
abortions is both a widespread and frequent practice. Even 
groups opposed to H.R. 1218 acknowledge that large numbers of 
minors are transported across state lines to obtain abortions, 
in many cases by adults other than their parents. In 1995, 
Kathryn Kolbert, then an attorney with the Center for 
Reproductive Law and Policy (a national pro-abortion legal 
defense organization) asserted that thousands of adults are 
helping minors cross state lines to get abortions in states 
whose parental involvement requirements are less stringent or 
non-existent: ``There are thousands of minors who cross state 
lines for an abortion every year and who need the assistance of 
adults to do that.'' \26\ The following is a survey of several 
states and their experience with evasion of parental 
involvement laws.
---------------------------------------------------------------------------
    \26\ Labor of Love is Deemed Criminal, The National Law Journal, 
Nov. 11, 1996, at A8.
---------------------------------------------------------------------------
            Pennsylvania
    Since Pennsylvania's current parental consent law took 
effect in March of 1994, news reports have repeatedly 
maintained that many Pennsylvania teenagers are going out of 
state to New Jersey and New York to obtain abortions. In fact, 
in 1995 the New York Times reported that ``Planned Parenthood 
in Philadelphia has a list of clinics, from New York to 
Baltimore, to which they will refer teen-agers, according to 
the organization's executive director, Joan Coombs.'' \27\ 
Moreover, the Times gave accounts of clinics that had seen an 
increase in patients from Pennsylvania.\28\ One clinic, in 
Cherry Hill, New Jersey, reported seeing a threefold increase 
in Pennsylvania teenagers coming for abortions.\29\ Likewise, a 
clinic in Queens, New York reported that it was not unusual to 
see Pennsylvania teenagers as patients in 1995, though earlier 
it had been rare.\30\
---------------------------------------------------------------------------
    \27\ Teen-Agers Cross State Lines in Abortion Exodus, N.Y. Times, 
Dec. 18, 1995, at B6.
    \28\ See id.
    \29\ See id.
    \30\ See id.
---------------------------------------------------------------------------
    In the period just prior to the Pennsylvania law taking 
effect, efforts were underway to make it easier for teenagers 
to go out of state for abortions. For instance, Newsday 
reported that ``[c]ounselors and activists are meeting to plot 
strategy and printing maps with directions to clinics in New 
York, New Jersey, Delaware and Washington, D.C., where 
teenagers can still get abortions without parental consent. . . 
. `We will definitely be encouraging teenagers to go out of 
state,' said Shawn Towey, director of the Greater Philadelphia 
Woman's Medical Fund, a nonprofit organization that gives money 
to women who can't afford to pay for their abortions.'' \31\
---------------------------------------------------------------------------
    \31\ Charles V. Zehren, New Restrictive Abortion Law, Newsday, Feb. 
22, 1994.
---------------------------------------------------------------------------
    Moreover, some abortion clinics in nearby states, such as 
New Jersey and Maryland, use the lack of parental involvement 
requirements in their own states as a ``selling point'' in 
advertising directed at minors in Pennsylvania. For example, 
the March 1999-February 2000 Yellow Pages for Philadelphia, 
Pennsylvania contain advertisements from three New Jersey 
abortionists declaring ``No Parental Consent Required.'' A 
Rockville, Maryland abortionist ran a similar advertisement in 
the May 1998-April 1999 Yellow Pages for Harrisburg, 
Pennsylvania. Such advertisements have appeared in telephone 
directories for Wilkes-Barre and Dallas, Scranton, Clarks 
Summit, and Carbondale, Bethlehem, Allentown, York, and Erie.
            Missouri
    In 1997, a study in the American Journal of Public Health 
reported that a leading abortion provider in Missouri refers 
minors out of state for abortions if the girls do not want to 
involve their parents.\32\ Reproductive Health Services, which 
performs over half of the abortions performed in Missouri, 
refers minors to the Hope Clinic for Women in Granite City, 
Illinois. Research reveals that based on the available data the 
odds of a minor traveling out of state for an abortion 
increased by over 50 percent when Missouri's parental consent 
law went into effect.\33\ Furthermore, compared to older women, 
underage girls were significantly more likely to travel out of 
state to have their abortions.\34\
---------------------------------------------------------------------------
    \32\ See Charlotte Ellertson, Ph.D., Mandatory Parental Involvement 
in Minors' Abortions: Effects of the Laws in Minnesota, Missouri, and 
Indiana, American Journal of Public Health, Aug., 1997, at 1371.
    \33\ See id.
    \34\ See id.
---------------------------------------------------------------------------
    A 1999 St. Louis Post-Dispatch news report confirms that 
the Hope Clinic in Illinois continues to attract underage girls 
seeking abortions without parental involvement.\35\ A clinic 
counselor estimates that she sees two girls each week seeking 
to avoid their home state's parental involvement law. One 
recent example was a 16 year-old girl from Missouri who had 
called abortion clinics in St. Louis and learned that parental 
consent was required before a minor could obtain an abortion. 
According to the report, the Hope Clinic performed 3,200 
abortions on out-of-state women last year, and the clinic's 
executive director estimates that that number is 45% of the 
total abortions performed at the clinic. The executive director 
also estimates that 13% of the clinic's clients are minors.
---------------------------------------------------------------------------
    \35\ See Illinois May Tighten Rules on Abortions For Teens; 
Parental Consent is Not Required Abortion Bill Targets as Teen Haven 
For Abortion, St. Louis Post-Dispatch, Feb. 25, 1999.
---------------------------------------------------------------------------
            Massachusetts
    Massachusetts has also seen an increase in out-of-state 
abortions performed on its teenage residents since the state's 
parental consent law went into effect in April of 1981, 
according to a published study and anecdotal information.\36\ A 
1986 study published in the American Journal of Public Health 
found that in the four months prior to implementation of the 
parental consent law, an average of 29 Massachusetts minors 
obtained out-of-state abortions each month (in Rhode Island, 
New Hampshire, Connecticut, and New York--data for Maine was 
not available).\37\ After the parental consent law was 
implemented, however, the average jumped to between 90 and 95 
out-of-state abortions per month (using data from the five 
states of Rhode Island, New Hampshire, Connecticut, New York, 
and Maine)--representing one-third of the abortions obtained by 
Massachusetts' minors.\38\
---------------------------------------------------------------------------
    \36\ The Massachusetts law was changed in 1997 to require the 
consent of one parent (or judicial authorization), rather than both 
parents as previously required.
    \37\ See Virginia G. Cartoof & Lorraine V. Klerman, Parental 
Consent for Abortion: Impact of the Massachusetts Law, American Journal 
of Public Health, April 1986, at 397.
    \38\ See id. at 398.
---------------------------------------------------------------------------
    The study noted that due to what the authors described as 
``astute marketing,'' one abortion clinic in New Hampshire was 
able to nearly double the monthly average of abortions 
performed on Massachusetts minors (from 14 in 1981 to 27 in 
1982). The abortionist ``began advertising in the 1982 Yellow 
Pages of metropolitan areas along the northern Massachusetts 
border, stating `consent for minors not required.' '' \39\
---------------------------------------------------------------------------
    \39\ Id. at 399.
---------------------------------------------------------------------------
    In April of 1991, the Planned Parenthood League of 
Massachusetts estimated that approximately 1,200 Massachusetts 
minor girls travel out of state for abortions each year, the 
majority of them to New Hampshire.\40\ Planned Parenthood said 
that surveys of New Hampshire clinics revealed an average of 
100 appointments per month by Massachusetts minors.\41\
---------------------------------------------------------------------------
    \40\ See M.A.J. McKenna, Mass. abortion laws push teens over 
border, Boston Herald, April 7, 1991, at A1.
    \41\ See id.
---------------------------------------------------------------------------
            Mississippi
    A 1995 study of the effect of Mississippi's parental 
consent law revealed that Mississippi has also experienced an 
increase in the number of minors traveling out of state for 
abortion. The study, published in Family Planning Perspectives, 
compared data for the five months before the parental consent 
law took effect in June of 1993, with data for the six months 
after it took effect, and found that ``[a]mong Mississippi 
residents having an abortion in the state, the ratio of minors 
to older women decreased by 13%. . . . However, this decline 
was largely offset by a 32% increase in the ratio of minors to 
older women among Mississippi residents traveling to other 
states for abortion services.'' \42\ Based on the available 
data, the study suggests that the Mississippi parental consent 
law appeared to have ``little or no effect on the abortion rate 
among minors but a large increase in the proportion of minors 
who travel to other states to have abortions, along with a 
decrease in minors coming from other states to Mississippi.'' 
\43\
---------------------------------------------------------------------------
    \42\ Stanley K. Henshaw, The Impact of Requirements for Parental 
Consent on Minors' Abortions in Mississippi, Family Planning 
Perspectives, June, 1995, at 121.
    \43\ Id. at 122.
---------------------------------------------------------------------------
            Virginia
    Grace S. Sparks, executive director of the Virginia League 
of Planned Parenthood, predicted in February of 1997 that if 
Virginia were to pass a parental notification law, teenagers 
would travel out of state for abortions. ``In every state where 
they've passed parental notification, . . . there's been an 
increase in out-of-state abortions,'' she said, adding, ``I 
suspect that that's what will happen in Virginia, that teen-
agers who cannot tell their parents . . . will go out of state 
and have abortions. . . .'' \44\
---------------------------------------------------------------------------
    \44\ Lisa A. Singh, Those Are the People Who Are Being Hurt, Style 
Weekly, Feb. 11, 1997.
---------------------------------------------------------------------------
    Virginia's parental notification law took effect on July 1, 
1997. According to a recent article in The Washington Post, 
initial reports indicate that abortions performed on Virginia 
minors dropped 20 percent during the first five months that the 
law was in effect (from 903 abortions during the same time 
period in 1996 to approximately 700 abortions in 1997).\45\ The 
article suggests, however, that Virginia teenagers are 
traveling to the District of Columbia in order to obtain 
abortions without involving their parents. In fact, the 
National Abortion Federation (NAF), which runs a toll-free 
national abortion hotline, said that calls from Virginia 
teenagers seeking information on how to obtain an abortion out-
of-state were the largest source of teenage callers seeking 
out-of-state abortions, at seven to 10 calls per day. NAF 
hotline operator Amy Schriefer has gone so far as to talk a 
Richmond area teenage girl through the route (involving a 
Greyhound bus and the Metro's Red Line) to obtain an abortion 
in the District of Columbia.
---------------------------------------------------------------------------
    \45\ See Ellen Nakashima, Fewer Teens Receiving Abortions In 
Virginia, The Washington Post, March 3, 1998.
---------------------------------------------------------------------------
Adult Male Predators and Evasion of Parental Involvement Laws
    Importantly, evasion of a state's parental involvement law 
can sometimes be part of an effort to cover up the commission 
of a crime. According to Professor Teresa Collett of the South 
Texas College of Law, who testified before the Subcommittee on 
the Constitution last year, it is becoming increasingly clear 
that most underage pregnancies are the result of a lack of 
sexual restraint by adult men.\46\ In a study of over 46,000 
pregnancies of school-age girls in California, researchers 
found that ``71%, or over 33,000, were fathered by adult post-
high-school men whose mean age was 22.6 years, an average of 5 
years older than the mothers. . . . Even among junior high 
school mothers aged 15 or younger, most births are fathered by 
adult men 6-7 years their senior. Men aged 25 or older father 
more births among California school-age girls than do boys 
under age 18.'' \47\ Other studies have found that most teenage 
pregnancies are the result of predatory practices by men who 
are substantially older.\48\
---------------------------------------------------------------------------
    \46\ See Child Custody Protection Act: Hearings on H.R. 3682 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
105th Cong. (May 21, 1998) (statement of Professor Teresa Stanton 
Collette, Professor of Law, South Texas College of Law) (citing Mike A. 
Males & Kenneth S.Y. Chew, The Ages of Fathers in California Adolescent 
Births, 1993 Am. J. Publ. Health 565 (April 1996); David J. Landry & 
Jacqueline Darroch Forrest, How Old Are U.S. Fathers?, Family Planning 
Perspectives, July/Aug. 1995, at 159).
    \47\ See id. (citing Mike A. Males, Adult Involvement in Teenage 
Childbearing and STD, Lancet, July 1995, at 64).
    \48\ See id.
---------------------------------------------------------------------------
    Another study reports that 58 percent of the time it is the 
girl's boyfriend who accompanies her for an abortion when her 
parents have not been told about the pregnancy.\49\ Obviously, 
many of these males are vulnerable to statutory rape charges, 
and thus have a strong incentive to pressure the girl to agree 
to an abortion without revealing the pregnancy to her parents. 
Currently, such a male often can evade parental consent 
requirements by driving his victim across state lines.
---------------------------------------------------------------------------
    \49\ See Stanley Henshaw & Kathryn Post, Parental Involvement in 
Minors' Abortion Decisions, Family Planning Perspectives, Sept./Oct. 
1992, at 206.
---------------------------------------------------------------------------

                        Constitutional analysis

Constitutional Authority for the Child Custody Protection Act
    H.R. 1218 is a regulation of commerce among the several 
states. Commerce, as that term is used in the Constitution, 
includes travel whether or not that travel is for reasons of 
business.\50\ To transport another person across state lines is 
to engage in commerce among the states. There is thus no need 
to address the scope of Congress' power to regulate activity 
that is not, but that affects, commerce among the States.\51\ 
Under current Supreme Court jurisprudence, Congress can adopt 
rules concerning interstate commerce, such as this one, for 
reasons related primarily to local activity rather than 
commerce itself.\52\
---------------------------------------------------------------------------
    \50\ See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
    \51\ See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 
295 U.S. 495 (1935); Wickard v. Filburn, 317 U.S. 111 (1942); 
Katzenbach v. McClung, 379 U.S. 294 (1964); United States v. Lopez, 514 
U.S. 549 (1995).
    \52\ See United States v. Darby, 312 U.S. 100 (1941).
---------------------------------------------------------------------------
    The interstate transportation of minors for purposes of 
securing an abortion is, therefore, clearly a form of 
interstate commerce which the Constitution expressly empowers 
Congress to regulate.\53\ H.R. 1218 only regulates conduct 
which involves interstate movement, activity which the national 
government alone is expressly authorized by the Constitution to 
address.
---------------------------------------------------------------------------
    \53\ U.S. Const., art. I, Sec. 8, cl. 3.
---------------------------------------------------------------------------
Roe v. Wade and the Child Custody Protection Act
    In Roe v. Wade,\54\ a majority of the Supreme Court found 
that the Fourteenth Amendment's Due Process Clause, which 
provides that no state shall deprive any person of ``life, 
liberty, or property'' without due process of law, includes 
within it a ``substantive'' component which bars a state from 
prohibiting abortions under some circumstances. This 
substantive component of the Due Process Clause, also described 
in that case as including a ``right to privacy,'' has been held 
to forbid virtually all state prohibitions on abortion during 
the first trimester of pregnancy.\55\ In Planned Parenthood v. 
Casey,\56\ the scope of permissible state regulation of 
abortion and the standards to be applied in evaluating the 
constitutionality of state regulations were significantly 
changed. Instead of declaring that the right to seek an 
abortion was a ``fundamental right'' requiring a ``compelling 
state interest'' in order to be regulated, the new holding was 
that state regulation of abortion is permissible so long as 
such regulation does not place an ``undue burden'' on a woman's 
exercise of her constitutional rights with regard to 
abortion.\57\
---------------------------------------------------------------------------
    \54\ 410 U.S. 113 (1973).
    \55\ See Planned Parenthood v. Casey, 505 U.S. 833, 985 (Scalia, 
J., dissenting).
    \56\ 505 U.S. 833 (1992).
    \57\ For the articulation of the ``undue burden'' standard in 
Casey, see id. at 874-880. While the ``undue burden'' standard as 
expressed in Casey appeared only to be the views of the three-person 
plurality, Justice Scalia predicted that ``undue burden'' would 
henceforward be the relevant standard, see id. at 984-995 (Scalia, J., 
dissenting). It now appears that the lower federal courts understand 
that the ``undue burden'' standard is the correct one to be applied in 
abortion cases, see, e.g., Manning v. Hunt, 119 F.3d 254, 260 (4th Cir. 
1997) (``The trend does appear to be a move away from the strict 
scrutiny standard toward the so-called `undue burden' standard of 
review.'').
---------------------------------------------------------------------------
    H.R. 1218 does not raise any questions concerning the 
permissible regulation of abortion that are independent of the 
state laws that it is designed to effectuate. To the extent 
that a state rule is inconsistent with the Supreme Court's 
doctrine, that rule is ineffective and H.R. 1218 would not make 
it effective. Therefore, it is unnecessary to ask whether, for 
example, the ``life exception'' in Subsection (b)(1) of H.R. 
1218 is an adequate exception to a rule regulating abortion or 
whether the inability to circumvent a state law is an ``undue 
burden.'' Because constitutional limits on the States' 
regulatory authority are in effect incorporated into Subsection 
(a) of the Act, Subsection (b)(1) is in addition to any 
exceptions required by the Court's doctrine.
Constitutionality of Parental Involvement Laws
    Following the Court's decision in Roe v. Wade,\58\ many 
states enacted parental consent or notification statutes 
requiring minors to notify or seek the consent of their parents 
before undergoing an abortion. Parental consent laws generally 
require one or both parents to give actual consent to the 
minor's decision to have an abortion. Parental notification 
laws typically require the physician, or in some statutes 
another health care provider, to notify one or both of the 
parents of the minor female at some time prior to the abortion.
---------------------------------------------------------------------------
    \58\ 410 U.S. 113 (1973).
---------------------------------------------------------------------------
    The Supreme Court first considered parental involvement in 
a minor daughter's abortion in Planned Parenthood of Central 
Missouri v. Danforth.\59\ The Missouri statute at issue in that 
case gave a minor girl's parent an absolute veto over her 
decision to have an abortion. The majority, led by Justice 
Blackmun, found that the veto power was unconstitutional.\60\ 
The majority also noted, however, that a state has greater 
authority to regulate abortion procedures for minor girls than 
for adult females.\61\
---------------------------------------------------------------------------
    \59\ 428 U.S. 52 (1976).
    \60\ See id.
    \61\ See id. at 74-75.
---------------------------------------------------------------------------
    In Bellotti v. Baird,\62\ the Court remanded a parental 
consent statute that was unclear as to whether the parents had 
authority to veto the abortion and as to the availability of a 
judicial bypass procedure. The statute returned to the Supreme 
Court in Bellotti v. Baird (Bellotti II).\63\ The statute in 
Bellotti II required a minor to obtain the consent of her 
parents or circumvent this requirement through a judicial 
bypass proceeding that did not take into account whether the 
minor was sufficiently mature to make an informed decision 
regarding the abortion. The Supreme Court invalidated the 
statute without a majority opinion.
---------------------------------------------------------------------------
    \62\ 428 U.S. 132 (1976).
    \63\ 443 U.S. 622 (1979).
---------------------------------------------------------------------------
    Justice Powell's plurality opinion held that a state could 
limit the ability of a minor girl to obtain an abortion by 
requiring notification or consent of a parent if, but only if, 
the state established a procedure where the minor girl could 
bypass the consent or notification requirement.\64\ This has 
become the de facto constitutional standard for parental 
consent and notification laws. In upholding parental 
involvement laws, the plurality found three reasons why the 
constitutional rights of minors were not identical to the 
constitutional rights of adults: ``The peculiar vulnerability 
of children; their inability to make decisions in an informed, 
mature manner; and the importance of the parental role in child 
rearing.'' \65\ Thus, the plurality sought to design guidelines 
for a judicial bypass proceeding that allowed states to address 
these interests.
---------------------------------------------------------------------------
    \64\ See id. at 651.
    \65\ Id. at 634.
---------------------------------------------------------------------------
    In H.L. v. Matheson,\66\ a minor girl challenged the 
constitutional validity of a state statute that required a 
physician to give notice to the parents of a minor girl 
whenever possible before performing an abortion on her. By a 
vote of six to three, the statute was found to be 
constitutional. The Court held that a state could require 
notification of the parents of a minor girl because the 
notification ``furthers a constitutionally permissible end by 
encouraging an unmarried pregnant minor to seek the help and 
advice of her parents in making the very important decision 
whether or not to bear a child.'' \67\
---------------------------------------------------------------------------
    \66\ 450 U.S. 398 (1981).
    \67\ Id. at 409.
---------------------------------------------------------------------------
    In Planned Parenthood Association of Kansas City, Missouri, 
Inc. v. Ashcroft,\68\ the Court upheld a state law which 
required a minor to obtain the consent of one of her parents 
before obtaining an abortion or, in the alternative, to obtain 
the consent of a juvenile court judge. While there was no 
majority opinion, this case marked the first time the Court 
directly upheld a parental consent requirement.
---------------------------------------------------------------------------
    \68\ 462 U.S. 476 (1983).
---------------------------------------------------------------------------
    In Ohio v. Akron Center for Reproductive Health,\69\ the 
Supreme Court upheld a statute that required a physician to 
give notice to one of the minor's parents or, under some 
circumstances, another relative, before performing an abortion 
on the minor. The statute permitted the physician and the minor 
to avoid the requirement by a judicial bypass. Justice Kennedy, 
writing for the majority, held that the bypass proceeding did 
not unconstitutionally impair a minor's rights by the creation 
of unnecessary delay.\70\ The Court established in this case 
that it will not invalidate state procedures so long as they 
seem to be reasonably designed to provide the minor with an 
expedited process.
---------------------------------------------------------------------------
    \69\ 497 U.S. 502 (1990).
    \70\ See id. at 514-515.
---------------------------------------------------------------------------
    In Hodgson v. Minnesota,\71\ the Court invalidated a state 
statute that required notification of both parents prior to a 
minor girl's abortion without the option of a judicial bypass. 
The Court upheld, however, statutory requirements that both 
parents be notified of the abortion and a 48 hour waiting 
period between notification and the performance of the 
abortion, if such requirements were accompanied by a judicial 
bypass procedure that met constitutional standards.
---------------------------------------------------------------------------
    \71\ 497 U.S. 417 (1990).
---------------------------------------------------------------------------
    This line of cases makes clear that a state may require the 
consent or notification of one or both of a minor's parents if 
the state provides for a constitutionally sound judicial bypass 
procedure. The Child Custody Protection Act is designed to 
preserve the application of such state laws, supplemented by a 
penalty section to provide a uniform penalty for those 
individuals circumventing laws by crossing state lines. Because 
the Act derives its substantive content entirely from state 
law, the Act will only be enforceable when a prosecutor can 
show that a constitutionally sound state parental consent or 
notification law exists. Thus, H.R. 1218 does not independently 
implicate any constitutional issues associated with parental 
notification or consent mandates.
Judicial Bypass Procedures
    Some critics of H.R. 1218 argue that it will remove the 
only viable option available to minors who feel that they 
cannot tell their parents that they wish to obtain abortions. 
This argument ignores, however, the available judicial bypass 
procedures which all valid parental involvement statutes 
contain. Opponents of H.R. 1218 also argue that judicial bypass 
procedures are too complicated and intrusive to be an effective 
option for most young girls. Yet, in actuality, judicial bypass 
proceedings are quite simple and bypasses are easily 
obtained.\72\
---------------------------------------------------------------------------
    \72\ A survey of Massachusetts cases filed between 1981 and 1983 
found that every minor that sought judicial authorization to bypass 
parental consent received it. See Robert H. Mnookin, Bellotti v. Baird, 
A Hard Case in In the Interest of Children: Advocacy, Law Reform, and 
Public Policy 149 at 239 (Robert H. Mnookin ed., 1985). A subsequent 
study found that orders were refused to only 1 of 477 girls seeking 
judicial authorization from Massachusetts courts between December 1981 
and June 1985. See Susanne Yates & Anita J. Pliner, Judging Maturity in 
the Courts: the Massachusetts Consent Statute, 78 Am. J. Pub. Health 
646, 647 (1988). The average hearing lasted only 12.12 minutes, and 
``more than 92 percent of the hearings [were] less than or equal to 20 
minutes.'' Id. at 648. Based upon a review of bypass petitions filed in 
Minnesota from August 1, 1981, to March 1, 1986, a federal trial court 
determined that of the 3,573 bypass petitions filed, six were 
withdrawn, nine were denied, and 3,558 were granted. See Hodgson v. 
State of Minnesota, 648 F. Supp. 756 at 765 (D. Minn. 1986). Similar 
ease in obtaining judicial approval as an alternative to parental 
involvement is suggested by a recent report on the newly enacted 
Virginia statute requiring parental notification. Out of 18 requests 
for judicial bypass, ``all but one of the requests were granted 
eventually.'' Ellen Nakashima, Fewer Teens Receiving Abortion in 
Virginia: Notification Law to Get Court Test, Washington Post (March 3, 
1998).
---------------------------------------------------------------------------
    Critics of H.R. 1218 also claim that the measure endangers 
the health of young girls who are forced to travel out of state 
to obtain abortions because the judges in their home states 
either refuse to hear judicial bypass petitions or deny them 
arbitrarily. In support of this argument, the critics cite 
cases like that of Ms. Billie Lominick, who testified before 
the Constitution Subcommittee regarding her experience with 
South Carolina's judicial bypass procedures. According to Ms. 
Lominick, who assisted her grandson's girlfriend in obtaining 
an out-of-state abortion, only two judges in the whole state of 
South Carolina would even hear a judicial bypass petition, and 
one of those judges, according to Ms. Lominick, would only hear 
petitions from girls residing in his county.\73\
---------------------------------------------------------------------------
    \73\ See Child Custody Protection Act: Hearings on H.R. 1218 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Cong. (May 27, 1999) (statement of Billie Lominick).
---------------------------------------------------------------------------
    This argument overlooks the fact that H.R. 1218 merely 
provides assistance in the enforcement of constitutional state 
parental notice and consent laws. If there are only two judges 
in an entire state willing to hear judicial bypass proceedings, 
that state's parental involvement laws are unconstitutional 
under Supreme Court precedent which requires the state to 
provide a minor the opportunity to seek a judicial bypass with 
``sufficient expedition to provide an effective opportunity for 
an abortion to be obtained.'' \74\
---------------------------------------------------------------------------
    \74\ Bellotti v. Baird, 443 U.S. 622, 644 (1979) (plurality 
opinion).
---------------------------------------------------------------------------
    This fact is illustrated by the First Circuit's decision in 
Planned Parenthood League v. Bellotti.\75\ In that case the 
court held that the plaintiffs could successfully challenge the 
state's judicial bypass procedures if they could present 
``proof of `a systemic failure to provide a judicial bypass 
option in the most expeditious, practical manner.' '' \76\ The 
court of appeals remanded the case to the lower court so that 
the plaintiffs' could present evidence that, among other 
things, judges were `` `defacto unavailable' to hear minors' 
abortion petitions,'' \77\ and many judges were avoided ``for 
reasons of hostility.'' \78\ The Sixth Circuit has also 
recognized that a constitutional challenge may be brought for a 
state's systemic failure to provide an expeditious judicial 
bypass.\79\
---------------------------------------------------------------------------
    \75\ 868 F.2d 459 (1st Cir. 1989).
    \76\ Id. at 469 (quoting Hodgson v. Minnesota, 648 F.Supp. 756, 777 
(1986)).
    \77\ Id. at 463.
    \78\ Id. at 461 n.6.
    \79\ See Cleveland Surgi-Center, Inc. v. Jones, 2 F.3d 686, 690 
(6th Cir. 1993).
---------------------------------------------------------------------------
    Not only must states provide access to judges who are 
willing to hear judicial bypass petitions, states must also 
ensure that the judges who do hear bypass petitions render 
their decisions in an expedited fashion. For example, in 
Planned Parenthood of Southern Arizona v. Lawall,\80\ the Court 
of Appeals for the Ninth Circuit struck down an Arizona 
parental consent statute on the grounds that its judicial 
bypass provision lacked specific time limits, and was therefore 
in violation of the Bellotti II expediency requirement. The 
court reached this conclusion even though the Arizona statute 
stated that such proceedings were to be given priority, and 
required that ``the court shall reach the decision [on a bypass 
request] promptly and without delay to serve the best interests 
of a pregnant minor.'' \81\ The court's rationale in adopting a 
strict interpretation of the Supreme Court's timeliness 
requirement was that ``[o]pen-ended bypass provisions engender 
substantial possibilities of delay for minors seeking 
abortions.'' \82\
---------------------------------------------------------------------------
    \80\ 1999 WL 371565 (9th Cir. June 9, 1999).
    \81\ Id. at *4.
    \82\ Id. at *8.
---------------------------------------------------------------------------
    The Fifth Circuit employed essentially identical reasoning 
in striking down a Louisiana judicial bypass procedure having 
indefinite time limits.\83\ The court found that ``not only do 
[the bypass procedures] fail to provide any specific time 
within which a minor's application will be decided, but they 
give no assurances (assurances required by Bellotti II) that 
the proceedings will conclude expeditiously.'' \84\
---------------------------------------------------------------------------
    \83\ See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 
1997).
    \84\ Id. at 1110-11.
---------------------------------------------------------------------------
    As these cases illustrate, judicial bypass procedures must 
be readily accessible and efficient in order to pass 
constitutional muster. H.R. 1218 will only assist in the 
enforcement of parental involvement laws which meet the 
relevant constitutional criteria.
Constitutionality of Lack of Proof of Specific Intent to Circumvent 
        State Law
    Critics of H.R. 1218 also argue that it is unconstitutional 
because it lacks a requirement that the defendant have 
knowledge of and intend to circumvent the relevant state 
parental involvement law. This omission, the critics argue, 
renders the bill unconstitutionally lacking a ``criminal 
intent'' element. This argument is without merit for two 
reasons.
    First, H.R. 1218 clearly contains a criminal intent 
element. An individual cannot be held liable under the bill 
unless they ``knowingly transport[] an individual who has not 
attained the age of 18 years across a State line, with the 
intent that such individual obtain an abortion.'' The 
requirement that the defendant ``knowingly'' transport a minor 
with the intent that the minor obtain an abortion prevents H.R. 
1218 from acting as a strict liability law. As stated in one 
well-known criminal law treatise:

          A statute is not of the strict liability variety 
        simply because it permits conviction of the defendant 
        without proof that he was aware his conduct was 
        criminal. Although a statute might be drafted in such a 
        way that such awareness is required for conviction, . . 
        . in the absence of such a requirement there usually 
        exists a mens rea requirement that defendant intend or 
        know what he is doing in a physical sense (apart from 
        knowledge as to its legality).\85\
---------------------------------------------------------------------------
    \85\ Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal 
Law Sec. 3.8 (1986).
---------------------------------------------------------------------------
    Second, it is well settled that it does not violate due 
process of law to punish individuals who claim to be ignorant 
of the law. As the Supreme Court stated over seventy five years 
ago,

          the state may in the maintenance of a public policy 
        provide that he who shall do [particular acts] shall do 
        them at his peril and will not be heard to plead in 
        defense good faith or ignorance. Many instances of this 
        are to be found in regulatory measures in the exercise 
        of what is called the police power where the emphasis 
        of the statute is evidently upon achievement of some 
        social betterment rather than the punishment of the 
        crimes as in the cases of mala in se.\86\
---------------------------------------------------------------------------
    \86\ United States v. Balint, 258 U.S. 250, 252 (1922) (internal 
quotation marks omitted).
---------------------------------------------------------------------------
This principle has been reaffirmed by the Supreme Court,\87\ 
with only a few exceptions not relevant here.\88\
---------------------------------------------------------------------------
    \87\ See, e.g., United States v. International Minerals & Chem. 
Corp., 402 U.S. 558 (1971).
    \88\ See, e.g., id. at 565 (noting that crimes relating to minor 
things such as ``[p]encils, dental floss, [and] paper clips'' might 
require mens rea element); Lambert v. California, 355 U.S. 225 (1958) 
(holding that where statute makes wholly passive conduct criminal, due 
process requires scienter); Smith v. California, 361 U.S. 147 (1959) 
(holding that strict liability for possession of obscenity would 
unconstitutionally chill First Amendment freedoms).
---------------------------------------------------------------------------
Federalism and the Child Custody Protection Act
    The United States Constitution created a federal government 
with limited and enumerated powers. All other powers are, as 
stated in the Tenth Amendment, ``reserved to the States 
respectively, or to the people.'' \89\ According to Professor 
Stephen Presser of the Northwestern University School of Law, 
\90\
---------------------------------------------------------------------------
    \89\ U.S. Const. amend. X.
    \90\ Professor Presser testified before the Subcommittee on the 
Constitution in support of the Child Custody Protection Act during the 
105th Congress, and submitted a written statement in support of H.R. 
1218 during the 106th Congress.
----------------------------------------------------------------------------
          [t]he Constitution created a federal government with 
        limited and enumerated powers, and much of the genius 
        of the document was the means employed for ensuring 
        that the federal government did not overwhelm the state 
        and local governments. The system of checks and 
        balances, whereby the three branches of the federal 
        government restrained each other, was an important 
        aspect of this plan, but equally important was the 
        basic notion that the federal government was not to 
        intrude on the domestic matters which had traditionally 
        been the prerogative of state and local 
        governments.\91\
---------------------------------------------------------------------------
    \91\ See Child Custody Protection Act: Hearings on H.R. 1218 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Congress, May 27, 1999 (statement of Professor Stephen B. 
Presser, Professor of Law, Northwestern University School of Law).
----------------------------------------------------------------------------
    H.R. 1218 respects this division of authority between the 
federal government and the states in that it does not attempt 
to regulate or impose policy on the individual states. Rather, 
H.R. 1218 is predicated on the validity of state law and 
derives its substantive application from state law. According 
to Professor Presser, ``[b]y imposing penalties on anyone who 
seeks to deny a minor or her family the protections of a 
state's parental consent/judicial bypass provisions with regard 
to abortion, as H.R. 1218 would do, the Congress would simply 
be reinforcing our Federalism scheme, and ensuring that each 
state's policy aims regarding this controversial issue are not 
frustrated.'' \92\ Professor Lino A. Graglia of the University 
of Texas Law School also testified that H.R. 1218 ``furthers 
the principle of federalism'' in that it seeks to ``reinforce 
or make effective'' state policies that are being transgressed 
or evaded.\93\
---------------------------------------------------------------------------
    \92\ Id.
    \93\ See Child Custody Protection Act: Hearings on H.R. 1218 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Congress, May 27, 1999 (statement of Professor Lino A. Graglia, 
Professor of Law, University of Texas Law School).
---------------------------------------------------------------------------
    H.R. 1218 does not supercede, override, or alter existing 
state laws regarding minors' abortions. Rather, H.R. 1218 uses 
Congress' authority to regulate interstate activity to protect 
state laws from evasion. As Professor Presser stated:

          [t]he political processes of each state exists to 
        resolve these difficult questions through the exercise 
        of popular sovereignty, the bedrock of our entire 
        Constitutional system. Not for nothing are the first 
        three words of the Constitution ``We the people,'' and 
        unless the Constitution itself expressly denies the 
        people any discretion over a particular area it is 
        their right, indeed, it is their duty to govern 
        themselves regarding that issue through the legislative 
        process. This is the most important right in the 
        Constitution, the right of self government, for which 
        our system of dual sovereignty exists. This Bill is an 
        important step in reinforcing Federalism and in 
        reinforcing self-government. It deserves to be 
        enacted.\94\
---------------------------------------------------------------------------
    \94\ See Child Custody Protection Act: Hearings on H.R. 1218 Before 
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 
106th Congress, May 27, 1999 (statement of Professor Stephen B. 
Presser, Professor of Law, Northwestern University School of Law).
---------------------------------------------------------------------------
In short, H.R. 1218 does not encroach on state powers, but 
rather reinforces state powers.
    H.R. 1218 is not unlike the Mann Act which, before being 
amended in 1986, made it a crime to transport a woman across 
state lines ``for the purpose of prostitution or debauchery, or 
for any other immoral purpose.'' \95\ That statute was upheld 
as applied to the transportation of a person to Nevada for 
purposes of engaging in prostitution, even though prostitution 
was legal in Nevada.\96\
---------------------------------------------------------------------------
    \95\ 18 U.S.C.A. Sec. 2421 (1970). As amended, the statute 
prohibits the knowing transportation of any individual across state 
lines ``with the intent that such individual engage in prostitution, or 
in any sexual activity for which the person can be charged with a 
criminal offense, or attempts to do so. . . .'' 18 U.S.C. Sec. 2421 
(West Supp. 1999).
    \96\ See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978).
---------------------------------------------------------------------------
    A similar provision prohibited the persuading, inducing, 
enticing, or coercion of a minor girl ``to go from one place to 
another by common carrier . . . with the intent that she be 
induced or coerced to engage in prostitution, debauchery or 
other immoral practice.'' \97\ This provision would presumably 
have prohibited an individual from causing a 15 year old minor 
to travel from a state in which the minimum age for consensual 
sex was 16 to a state in which the minimum was 14, in order to 
have sex with her.
---------------------------------------------------------------------------
    \97\ 18 U.S.C.A. Sec. 2423 (1970).
---------------------------------------------------------------------------
    Opponents of H.R. 1218 respond to this argument by noting 
that a violation of the Mann Act is not keyed to the underlying 
state law. But that distinction is of no significance. The Mann 
Act flatly prohibited the interstate transportation of women 
for ``prostitution'' or for ``any other immoral purpose.'' In 
the exercise of its commerce power, Congress could similarly 
prohibit the interstate transportation of minors for abortions 
without obtaining parental notice or consent, whether or not 
parental notice or consent is required by state law.\98\ 
Instead, H.R. 1218 respects the laws of the various states by 
only prohibiting the interstate transportation of young girls 
in order to avoid the laws of states that have chosen to 
require parental involvement in the abortion decisions of 
minors.
---------------------------------------------------------------------------
    \98\ See Hoke v. United States, 227 U.S. 308, 323 (1913) (noting, 
in upholding the constitutionality of the Mann Act, ``that Congress has 
power over transportation `among the several states;' that the power is 
complete in itself, and that Congress, as an incident to it, may adopt 
not only means necessary but convenient to its exercise, and the means 
may have the quality of police regulations'').
---------------------------------------------------------------------------
    Moreover, it is important to note that the Mann Act 
prohibited the interstate transportation of women for ``immoral 
purposes,'' and the Supreme Court upheld convictions under that 
provision for those who only transported women across state 
lines as ``mistresses'' and ``concubines.'' \99\ In upholding 
the law as a valid exercise of Congress' commerce power, the 
Court stated that
---------------------------------------------------------------------------
    \99\ See Caminetti v. United States, 242 U.S. 470, 483 (1917).
---------------------------------------------------------------------------
          [t]he 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, and the authority of Congress to 
        keep the channels of interstate commerce free from 
        immoral and injurious uses has been frequently 
        sustained, and is no longer open to question.\100\
---------------------------------------------------------------------------
    \100\ Id. at 491.
---------------------------------------------------------------------------
Just as it was appropriate for Congress to use its 
constitutional authority to keep the channels of interstate 
commerce free from ``immoral'' conduct, so it is also 
appropriate for Congress to exercise that authority to keep the 
channels of interstate commerce free from those who transport 
minors across state lines in order to circumvent state parental 
involvement laws.
    The Mann Act is also not the only example of federal laws 
that prohibit interstate activities that might be legal in the 
state to which the activity is directed. Indeed, as long ago as 
1876, Congress ``made it a crime to deposit in the mails any 
letters or circulars concerning lotteries, whether illegal or 
chartered by state legislatures.'' \101\ A statute to this 
effect is still in force.\102\ Congress later prohibited the 
transportation of lottery tickets in interstate commerce, 
whether or not lotteries are legal in the state to which the 
tickets are transported.\103\ That provision was upheld by the 
Supreme Court in Champion v. Ames \104\ and is still in effect.
---------------------------------------------------------------------------
    \101\ United States v. Edge Broadcasting Co., 509 U.S. 418, 421 
(1993).
    \102\ See 18 U.S.C.A. Sec. 1302 (prohibiting the mailing of lottery 
tickets or letters, circulars, and other materials regarding a 
lottery).
    \103\ See 18 U.S.C. Sec. 1301.
    \104\ 188 U.S. 321 (1903).
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.R. 1218, the ``Child Custody Protection Act,'' on 
May 27, 1999. Testimony was received from the following 
witnesses: Ms. Eileen Roberts, Mothers Against Minors' 
Abortions, Inc.; Ms. Billie Lominick of Newbury, South 
Carolina; Professor Lino A. Graglia, A. Dalton Cross Professor 
of Law, University of Texas School of Law; Dr. Jonathon D. 
Klein, M.D., American Academy of Pediatrics; and Professor John 
C. Harrison, Professor of Law, University of Virginia School of 
Law. Additional material was submitted by Professor Stephen B. 
Presser, Raoul Berger Professor of Legal History, Northwestern 
University School of Law; National Right to Life Committee, 
Inc.; Center for Reproductive Law and Policy; National Abortion 
and Reproductive Rights League; and the American Civil 
Liberties Union.

                        Committee Consideration

    On June 8, 1999, the Subcommittee on the Constitution met 
in open session and ordered reported the bill H.R. 1218, 
without amendment, by voice vote, a reporting quorum being 
present. On June 23, 1999, the Committee met in open session 
and ordered reported favorably the bill, H.R. 1218, without 
amendment, by a recorded vote of 16 to 13, a quorum being 
present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Nadler to exempt 
grandparents and adult siblings of the minor from the 
provisions of the bill. The amendment was defeated by a 13-17 
roll call vote.

                          ROLLCALL VOTE NO. 1

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson Lee                     Mr. Bryant
Mr. Delahunt                        Mr. Chabot
Mr. Wexler                          Mr. Barr
Mr. Rothman                         Mr. Jenkins
Ms. Baldwin                         Mr. Hutchinson
Mr. Weiner                          Mr. Pease
                                    Mr. Cannon
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Scarborough

    2. An amendment was offered by Mr. Nadler to permit any 
adult who reasonably believed that compliance with state 
judicial bypass procedures would either ``compromise the 
minor's intent to maintain confidentiality with respect to her 
choice to terminate a pregnancy'' or would ``be futile because 
the judicial bypass procedure of the minor's state of residence 
is unavailable or ineffective,'' to obtain a waiver of the 
requirements of the bill from a federal district court. The 
amendment was defeated by a 14-17 roll call vote.

                          ROLLCALL VOTE NO. 2

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson Lee                     Mr. Bryant
Ms. Waters                          Mr. Chabot
Mr. Meehan                          Mr. Barr
Mr. Wexler                          Mr. Jenkins
Mr. Rothman                         Mr. Hutchinson
Ms. Baldwin                         Mr. Pease
Mr. Weiner                          Mr. Cannon
                                    Mr. Rogan
                                    Ms. Bono
                                    Mr. Scarborough

    3. Four amendments were offered en bloc by Ms. Jackson Lee 
to exempt ministers, rabbis, pastors, priests, other religious 
leaders, aunts, uncles, godparents, and first cousins from the 
provisions of the bill. The en bloc amendment was defeated by a 
14-16 roll call vote.

                          ROLLCALL VOTE NO. 3

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Gallegly
Mr. Watt                            Mr. Canady
Ms. Lofgren                         Mr. Bryant
Ms. Jackson Lee                     Mr. Chabot
Ms. Waters                          Mr. Barr
Mr. Meehan                          Mr. Jenkins
Mr. Wexler                          Mr. Hutchinson
Mr. Rothman                         Mr. Pease
Ms. Baldwin                         Mr. Cannon
Mr. Weiner                          Mr. Rogan
                                    Ms. Bono
                                    Mr. Scarborough

    4. An amendment was offered by Ms. Waters to prevent the 
application of the bill ``with respect to an abortion where the 
pregnancy resulted from incest.'' The amendment was defeated by 
a roll call vote of 12-15.

                          ROLLCALL VOTE NO. 4

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson Lee                     Mr. Goodlatte
Ms. Waters                          Mr. Bryant
Mr. Rothman                         Mr. Jenkins
Ms. Baldwin                         Mr. Hutchinson
Mr. Weiner                          Mr. Cannon
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Bachus

    5. An amendment was offered by Mr. Watt to require proof 
that the defendant acted with the intent to evade the 
requirements of a state parental involvement law in order to be 
prosecuted under the bill. The amendment was defeated by a 
voice vote.
    6. An amendment was offered by Mr. Watt to create an 
exception where the abortion was necessary to prevent serious 
physical illness, injury, or disability. The amendment was 
defeated by a 11-17 roll call vote.

                          ROLLCALL VOTE NO. 5

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Lofgren                         Mr. Gallegly
Ms. Jackson Lee                     Mr. Canady
Ms. Waters                          Mr. Bryant
Mr. Rothman                         Mr. Chabot
Ms. Baldwin                         Mr. Barr
Mr. Weiner                          Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Cannon
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Bachus
                                    Mr. Scarborough

    7. An amendment was offered by Ms. Jackson Lee to require 
the General Accounting Office to conduct a study of ``the 
impact of the number of unsafe and illegal abortions performed 
on minors who would be affected by this law, and report to 
Congress the results of that study within one year.'' The 
amendment was defeated by a 12-17 roll call vote.

                          ROLLCALL VOTE NO. 6

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Jackson Lee                     Mr. Gallegly
Ms. Waters                          Mr. Canady
Mr. Meehan                          Mr. Bryant
Mr. Wexler                          Mr. Chabot
Mr. Rothman                         Mr. Barr
Ms. Baldwin                         Mr. Jenkins
Mr. Weiner                          Mr. Hutchinson
                                    Mr. Cannon
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Bachus
                                    Mr. Scarborough

    8. An amendment was offered by Mr. Scott to exempt medical 
facilities, doctors, and other medical professionals from 
prosecution under the bill. The amendment was defeated by a 12-
16 roll call vote.

                          ROLLCALL VOTE NO. 7

        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mr. Berman                          Mr. McCollum
Mr. Nadler                          Mr. Gekas
Mr. Scott                           Mr. Coble
Mr. Watt                            Mr. Smith (TX)
Ms. Lofgren                         Mr. Gallegly
Ms. Jackson Lee                     Mr. Canady
Ms. Waters                          Mr. Bryant
Mr. Wexler                          Mr. Chabot
Mr. Rothman                         Mr. Jenkins
Ms. Baldwin                         Mr. Hutchinson
Mr. Weiner                          Mr. Cannon
                                    Mr. Graham
                                    Ms. Bono
                                    Mr. Bachus
                                    Mr. Scarborough

    9. An amendment was offered by Mr. Scott to exempt 
accessories after the fact, aiders and abetters, and other 
principals from prosecution under the bill. The amendment was 
defeated by a voice vote.
    10. Final Passage. The motion to report the bill, H.R. 
1218, favorably without amendment to the whole House. The 
motion was agreed to by a roll call vote of 16-13.

                          ROLLCALL VOTE NO. 8

        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Sensenbrenner                   Mr. Berman
Mr. McCollum                        Mr. Nadler
Mr. Gekas                           Mr. Scott
Mr. Coble                           Mr. Watt
Mr. Smith (TX)                      Ms. Lofgren
Mr. Gallegly                        Ms. Jackson Lee
Mr. Canady                          Ms. Waters
Mr. Bryant                          Mr. Meehan
Mr. Chabot                          Mr. Wexler
Mr. Jenkins                         Mr. Rothman
Mr. Hutchinson                      Ms. Baldwin
Mr. Cannon                          Mr. Weiner
Mr. Graham
Ms. Bono
Mr. Bachus
Mr. Scarborough

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1218, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 25, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1218, the Child 
Custody Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,

                                            Dan L. Crippen, Director.  
H.R. 1218--Child Custody Protection Act
    CBO estimates that implementing H.R. 1218 would not result 
in any significant cost to the federal government. Because 
enactment of H.R. 1218 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill. 
However, CBO estimates that any impact on direct spending and 
receipts would not be significant. H.R. 1218 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    H.R. 1218 would make it a federal crime to transport a 
minor across state lines, under certain circumstances, to 
obtain an abortion without parental notification. Violators 
would be subject to imprisonment and fines. As a result, the 
federal government would be able to pursue cases that it 
otherwise would not be able to prosecute. CBO expects that any 
increase in federal costs for law enforcement, court 
proceedings, or prison operations would not be significant, 
however, because of the small number of cases likely to be 
involved. any such additional costs would be subject to the 
availability of appropriated funds.
    Becuase those prosecuted and convicted under H.R. 1218 
could be subject to criminal fines, the federal government 
might collect additional fines if the bill is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and spent in the following year. CBO expects 
that any additional receipts and direct spending would be 
negligible.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Paul N. Van de Water, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article 1, section 8, clause 3 of the 
Constitution.

                      Section-by-Section Analysis

    H.R. 1218 amends title 18 of the United States Code by 
adding sec. 2401 to criminalize the transportation of minors to 
avoid certain laws relating to abortion.
Section 1. Short Title
    This section states that the short title of this bill is 
the ``Child Custody Protection Act.''
Section 2. Transportation of minors in circumvention of certain laws 
        relating to abortion.
    Section 2(a) amends title 18 of the United States Code by 
inserting after chapter 117 the following:
    Chapter 117A--Transportation of minors in circumvention of 
certain laws relating to abortion.
    Subsection (a) of this section makes the knowing 
transportation across a state line of a person under 18 years 
of age with the intent that she obtain an abortion, in 
abridgement of a parent's right of involvement according to 
State law, a violation of this statute and a chargeable 
offense.
    Subsection (a), paragraph (1), imposes a maximum of one 
year imprisonment or a fine, or both.
    Subsection (a), paragraph (2) specifies the criteria for a 
violation of the parental right under this statute as follows: 
an abortion must be performed on a minor in a state other than 
the minor's residence and without the parental consent or 
notification, or the judicial authorization, that would have 
been required had the abortion been performed in the minor's 
state of residence.
    Subsection (b), paragraph (1) specifies that subsection (a) 
does not apply if the abortion is necessary to save the life of 
the minor.
    Subsection (b), paragraph (2) clarifies that neither the 
minor being transported nor her parents may be prosecuted or 
sued for a violation of this bill.
    Subsection (c) provides an affirmative defense to 
prosecution or civil action based on violation of the bill 
where the defendant reasonably believed, based on information 
obtained directly from the girl's parent or other compelling 
facts, that the requirements of the girl's state of residence 
regarding parental involvement or judicial authorization in 
abortions had been satisfied.
    Subsection (d) establishes a civil cause of action for a 
parent who suffers legal harm from a violation of subsection 
(a).
    Subsection (e) sets forth definitions of certain terms in 
this bill.
    Subsection (e)(1)(A) defines ``a law requiring parental 
involvement in a minor's abortion decision'' to be a law 
requiring either ``the notification to, or consent of, a parent 
of that minor'' or ``proceedings in a State court.''
    Subsection (e)(1)(B) stipulates that a law conforming to 
the definition in (e)(1)(A) cannot provide notification to or 
consent of any person or entity other than a ``parent'' as 
defined in the subsequent section.
    Subsection (e)(2) defines ``parent'' to mean a parent or 
guardian, or a legal custodian, or a person standing in loco 
parentis (if that person has ``care and control'' of the minor 
and is a person with whom the minor ``regularly resides'') and 
who is designated by the applicable state parental involvement 
law as the person to whom notification, or from whom consent, 
is required.
    Subsection (e)(3) defines ``minor'' to mean a person not 
older than the maximum age requiring parental notification or 
consent, or proceedings in a State court, under the parental 
involvement law of the state where the minor resides.
    Subsection (e)(4) defines ``State'' to include the District 
of Columbia ``and any commonwealth, possession, or other 
territory of the United States.''
    Section 2(b) is a clerical amendment to insert the new 
chapter in the table of chapters for part I of title 18.


         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 18 UNITED STATES CODE

           *       *       *       *       *       *       *


                             PART I--CRIMES

Chap.                                                               Sec.
1.     General provisions.........................................     1
     * * * * * * *
117A.  Transportation of minors in circumvention of certain laws 
              relating to abortion................................  2431
     * * * * * * *

CHAPTER 117A--TRANSPORTATION OF MINORS IN CIRCUMVENTION OF CERTAIN LAWS 
                          RELATING TO ABORTION

Sec.
2431. Transportation of minors in circumvention of certain laws relating 
          to abortion.

Sec. 2431. Transportation of minors in circumvention of certain laws 
                    relating to abortion

    (a) Offense.--
            (1) Generally.--Except as provided in subsection 
        (b), whoever knowingly transports an individual who has 
        not attained the age of 18 years across a State line, 
        with the intent that such individual obtain an 
        abortion, and thereby in fact abridges the right of a 
        parent under a law requiring parental involvement in a 
        minor's abortion decision, in force in the State where 
        the individual resides, shall be fined under this title 
        or imprisoned not more than one year, or both.
            (2) Definition.--For the purposes of this 
        subsection, an abridgement of the right of a parent 
        occurs if an abortion is performed on the individual, 
        in a State other than the State where the individual 
        resides, without the parental consent or notification, 
        or the judicial authorization, that would have been 
        required by that law had the abortion been performed in 
        the State where the individual resides.
    (b) Exceptions.--(1) The prohibition of subsection (a) does 
not apply if the abortion was necessary to save the life of the 
minor because her life was endangered by a physical disorder, 
physical injury, or physical illness, including a life 
endangering physical condition caused by or arising from the 
pregnancy itself.
    (2) An individual transported in violation of this section, 
and any parent of that individual, may not be prosecuted or 
sued for a violation of this section, a conspiracy to violate 
this section, or an offense under section 2 or 3 based on a 
violation of this section.
    (c) Affirmative Defense.--It is an affirmative defense to a 
prosecution for an offense, or to a civil action, based on a 
violation of this section that the defendant reasonably 
believed, based on information the defendant obtained directly 
from a parent of the individual or other compelling facts, that 
before the individual obtained the abortion, the parental 
consent or notification, or judicial authorization took place 
that would have been required by the law requiring parental 
involvement in a minor's abortion decision, had the abortion 
been performed in the State where the individual resides.
    (d) Civil Action.--Any parent who suffers legal harm from a 
violation of subsection (a) may obtain appropriate relief in a 
civil action.
    (e) Definitions.--For the purposes of this section--
            (1) a law requiring parental involvement in a 
        minor's abortion decision is a law--
                    (A) requiring, before an abortion is 
                performed on a minor, either--
                            (i) the notification to, or consent 
                        of, a parent of that minor; or
                            (ii) proceedings in a State court; 
                        and
                    (B) that does not provide as an alternative 
                to the requirements described in subparagraph 
                (A) notification to or consent of any person or 
                entity who is not described in that 
                subparagraph;
            (2) the term ``parent'' means--
                    (A) a parent or guardian;
                    (B) a legal custodian; or
                    (C) a person standing in loco parentis who 
                has care and control of the minor, and with 
                whom the minor regularly resides;
        who is designated by the law requiring parental 
        involvement in the minor's abortion decision as a 
        person to whom notification, or from whom consent, is 
        required;
            (3) the term ``minor'' means an individual who is 
        not older than the maximum age requiring parental 
        notification or consent, or proceedings in a State 
        court, under the law requiring parental involvement in 
        a minor's abortion decision; and
            (4) the term ``State'' includes the District of 
        Columbia and any commonwealth, possession, or other 
        territory of the United States.
                            Dissenting Views

    We strongly dissent from H.R. 1218. As the bill is written, 
it is opposed by the Administration and will likely be vetoed 
by the President. This legislation will increase health risks 
to young women who choose to have an abortion, is anti-family, 
and is very likely unconstitutional.\1\ Additionally, the 
legislation is opposed by a wide variety of groups that remain 
committed to reducing teenage pregnancy and protecting a 
woman's right to choose, such as Planned Parenthood, the 
National Abortion and Reproductive Rights Action League, and 
the Center for Reproductive Law and Policy.
---------------------------------------------------------------------------
    \1\ During the last Congress, the Administration sent several 
letters to the Committee outlining its strong opposition to H.R. 3682, 
last year's ``Child Custody Protection Act.'' See also Statement of 
Administration Policy, July 14, 1998. H.R. 1218 is substantially the 
same as H.R. 3682.
---------------------------------------------------------------------------
    Contrary to its stated intent, instead of simply permitting 
state-required parental involvement, H.R. 1218 will 
dramatically increase the dangers young women will face in 
their decision to have an abortion. In fact, the bill contains 
no prohibitions whatsoever against women traveling across state 
lines alone to avoid a consent requirement. It will lead more 
women to seek illegal ``back alley'' abortions locally, hardly 
a desirable policy result. To the extent young women continue 
to seek the involvement of close family members when they 
cannot confide in their parents--where, for example, a parent 
has raped a young woman or where there is a history of child 
abuse--this bill will criminalize the actions of those whom the 
young woman is most likely to depend upon for support. 
Consequently, this bill encourages young women to act in 
isolation, putting them at greater risk of physical and 
psychological harm.
    Further, because the bill violates the principles of 
federalism, restricts a young woman's right to travel, and 
compels states to treat non-residents differently than 
residents, it raises very serious constitutional issues. For 
these and the other reasons set forth herein, we dissent from 
H.R. 1218.
I. H.R. 1218 Will Endanger Young Women
    Although abortion is generally very safe, it is still far 
preferable and safer to permit a trusted friend or family 
member to drive a woman home from this surgical procedure.\2\ 
Under this bill, teenagers who are unable to satisfy a state 
parental involvement law--either because they cannot tell one 
parent (or in some states, both parents) about their pregnancy 
or because they have no fair chance of obtaining a judicial 
bypass--will be forced to travel alone across state lines to 
obtain an abortion.
---------------------------------------------------------------------------
    \2\ Many teenagers seeking an abortion must travel out of state to 
obtain the procedure, either because the closest facility is located in 
a neighboring state or because there is no in-state provider available. 
In fact, currently 86% of counties--home to 32% of women of 
childbearing age--lack an abortion provider. See Stanley K. Henshaw, 
``Abortion Services in the United States, 1995 and 1996,'' Family 
Planning Perspectives, Vol. 30, No. 6, 262, 266 (Nov/Dec 1998).
---------------------------------------------------------------------------
    As much as we would prefer the active and supportive 
involvement of parents in their children's major decisions, it 
is not always realistic to expect children to seek parental 
involvement willingly in the sensitive area of abortion. And 
where a child is unwilling or unable to seek parental consent, 
the results can be tragic. The testimony of Bill and Mary Bell 
before the Constitution Subcommittee is telling in this 
regard.\3\ The Bells were the parents of a daughter who died 
receiving an illegal abortion because she did not want her 
parents to know about her pregnancy, notwithstanding Indiana's 
parental notice law. A Planned Parenthood counselor in Indiana 
informed Becky that she would have to notify her parents or 
petition a judge in order to get an abortion. Becky responded 
that she did not want to tell her parents because she did not 
want to hurt them. She also replied that if she could not tell 
her parents, with whom she was very close, she would not feel 
comfortable asking a judge she did not even know. Instead of 
traveling 110 miles away to Kentucky, Becky opted to undergo an 
illegal abortion close to her home. Tragically, Becky developed 
serious complications from her illegal abortion that caused her 
death. It is unlikely that H.R. 1218 could have changed this 
outcome or would have convinced Becky to confide in her parents 
about her pregnancy.
---------------------------------------------------------------------------
    \3\ See Hearing on H.R. 3682 ``The Child Custody Protection Act'' 
before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary, 105th Cong. 2d Sess. (1998) (statement of Bill and Mary 
Bell, submitted for the record). See also Position Paper from The 
National Abortion Federation, ``The True Victims of S. 1645/H.R. 3682 
The Teen Endangerment Act'' (June 1998) (describing the case of 
Keishawn, an eleven year old from Maryland, who was impregnated by her 
step-father, and sought an abortion with the assistance of her aunt, 
Vicky Simpson, who was awaiting an order granting her custody of 
Keishawn. Upon learning of the pregnancy, Keishawn's doctors in 
Maryland recommended that Keishawn have anesthesia during the abortion 
procedure, but none of the hospitals in Maryland would allow the 
abortion to be provided at their facility. As a result, Keishawn's aunt 
sought the attention of a specialist practicing in a neighboring state, 
who agreed to provide the abortion. Under H.R. 1218, Vicki could have 
been federally prosecuted for helping her young niece cope with this 
pregnancy resulting from incest).
---------------------------------------------------------------------------
    Moreover, many young women justifiably fear that they would 
be physically or emotionally abused if forced to disclose their 
pregnancy to their parents. Nearly one-third of minors who 
choose not to consult with their parents have experienced 
violence in their family or feared violence or being forced to 
leave home.\4\ Enacting this legislation and forcing young 
women in these circumstances to notify their parents of their 
pregnancies will only exacerbate the dangerous cycle of 
violence in dysfunctional families. This is the lesson of 
Spring Adams, an Idaho teenager who was shot to death by her 
father after he learned she was planning to terminate a 
pregnancy caused by his acts of incest.\5\ It is clear that 
when a young woman believes that she cannot involve her parents 
in her decision to terminate a pregnancy, the law cannot 
mandate healthy, open family communication.
---------------------------------------------------------------------------
    \4\ See Henshaw at 196.
    \5\ See Maggie Boule, ``An American Tragedy,'' Sunday Oregonian, 
Aug. 27, 1989.
---------------------------------------------------------------------------
    We are well aware of proponents' claims that the bill 
protects minors who cannot obtain parental consent because they 
have the option to appear before judges and bypass any parental 
involvement laws. While bypass may have some theoretical 
benefits, in many cases it is difficult if not impossible for 
troubled young women to obtain. Some teenagers live in regions 
where the local judges consistently refuse to grant bypasses, 
regardless of the facts involved. For example, one study found 
that a number of judges in Massachusetts either refuse to 
handle abortion petitions or focus inappropriately on the 
morality of abortion.\6\ Others may live in small communities 
where the judge may be a friend of the young woman's parents, a 
family member, or even the parent of a friend. Still others may 
live in regions where the relevant courts are not open in the 
evenings or on weekends, when minors could seek a bypass 
without missing school or arousing suspicion.\7\ The 
difficulties in obtaining a judicial bypass were clearly 
illustrated by Ms. Billie Lominick during her testimony before 
the Subcommittee on the Constitution. Ms. Lominick was a 63-
year old grandmother who helped a pregnant minor from a 
physically and sexually abusive household cross state lines to 
obtain an abortion. Ms. Lominick testified that her assistance 
was essential because the minor was unable to find any judge in 
her home state of South Carolina who would hear her judicial 
bypass petition.\8\
---------------------------------------------------------------------------
    \6\ See Patricia Donovan, ``Judging Teenagers: How Minors Fare When 
They Seek Court- Authorized Abortions,'' Family Planning Perspectives, 
vol. 15, no. 6 (Nov./Dec. 1983): 259. See also Hodgson v. Minnesota, 
487 U.S. 417, 475 (1990) (finding that in Minnesota, many judges refuse 
even to hear bypass proceedings); In re T.W., 551 So.2d 1186, 1190 
(Fla. 1989) (describing how a judge in Florida, after denying a bypass 
petition to a teenage girl who was in high school, participated in 
extracurricular activities, worked 20 hours a week, and baby-sat 
regularly for her mother, suggested that he, as a representative of the 
court, had standing to represent the state's interest when the minor 
appealed the denial).
    \7\ The courts in Massachusetts, Minnesota, and Rhode Island are 
not open in the evenings or on weekends. See Patricia Donovan, 
``Judging Teenagers: How Minors Fare When They Seek Court-Authorized 
Abortions,'' Family Planning Perspectives, vol. 15, no. 6 (Nov./Dec. 
1983): 259.
    \8\ See Hearing on H.R. 1218 ``The Child Custody Protection Act'' 
before the Subcomm. on the Constitution of the House Comm. on the 
Judiciary 106th Cong. 1st Sess. (1999) (statement of Billie Lominick).
---------------------------------------------------------------------------
    Moreover, reliance on the judicial bypass system as an 
effective alternative to parental consent understates the 
intimidating effect of seeking a court-sanctioned abortion. 
Many minors fear that the judicial bypass procedure lacks the 
necessary confidentiality. The American Medical Association has 
noted that ``because the need for privacy may be compelling, 
minors may be driven to desperate measures to maintain the 
confidentiality of their pregnancies. . . . The desire to 
maintain secrecy has been one of the leading reasons for 
illegal abortion deaths since . . . 1973.\9\ Many young women, 
faced with the prospect of embarrassment and social stigma 
would resort to drastic measures rather than undergo the 
humiliation of revealing intimate details of their lives to a 
series of strangers in a formal, legal process. Young women's 
concerns about confidentiality are especially acute in rural 
areas. For example, in one case a minor discovered that her 
bypass hearing would be conducted by her former Sunday school 
teacher.\10\
---------------------------------------------------------------------------
    \9\ See Council on Ethical and Judicial Affairs, AMA, ``Mandatory 
Parental Consent to Abortion,'' JAMA, vol. 269, no. 1 (Jan. 6, 1993): 
83
    \10\ See Memphis Planned Parenthood v. Sundquist, No. 3:89-0520, 
slip op. at 13 (M.D. Tenn. Aug. 26, 1997); See also Tamar Lewin, 
``Parental Consent to Abortion: How Enforcement Can Vary,'' N.Y. Times, 
May 29, 1992, p. A1 (describing how a judge in Toledo, Ohio denied 
permission to a 17\1/2\ year old woman, an ``A'' student who planned to 
attend college and who testified she was not financially or emotionally 
prepared for college and motherhood at the same time, stating that the 
girl had ``not had enough hard knocks in her life'').
---------------------------------------------------------------------------
    The argument has been made by proponents of H.R. 1218 that 
in these situations, when judicial bypasses are not functioning 
properly, a young woman could seek--and undoubtedly obtain--
relief in federal court. This argument ignores the facts. In 
Cleveland Surgi-Center v. Jones,\11\ Planned Parenthood and 
other abortion providers in the Akron area brought suit 
alleging that Ohio's judicial bypass procedure produced a 
series of factually incorrect and arbitrary results.\12\ 
Despite the arbitrary nature of the decisions by the juvenile 
courts in Ohio, the federal court stated that it was a court of 
``limited jurisdiction'' that could not review the decisions of 
state courts.\13\ The court dismissed the case ``because both 
[the Court of Appeals] and the District Court are without 
jurisdiction to provide plaintiffs with the relief that they 
seek, namely the review of arbitrary state court decisions.'' 
\14\ Accordingly, it is not the case that judicial bypass 
procedures are meaningful and effective, nor is it the case 
that, when they are not, the federal courts will provide 
relief.
---------------------------------------------------------------------------
    \11\ 2 F.3d 686 (6th Cir. 1993).
    \12\ For example, a nearly-18-year-old minor petitioned for a 
waiver because she did not wish to discuss the matter with her parents. 
The juvenile court found that her reluctance to discuss the issue with 
her parents was, itself, evidence that she was not mature enough to 
make the decision as to whether to have an abortion. This example 
demonstrates that, at least for this judge, any minor who sought a 
bypass rather than discuss the matter with her parent could never 
obtain one--thereby defeating a central purpose of a judicial bypass.
    \13\ See Cleveland Surgi-Center, 2 F.3d at 691.
    \14\ Id.
---------------------------------------------------------------------------
II. H.R. 1218 is Anti-Family
    H.R. 1218 is hostile to the well-being of families. Despite 
proponents' belief that H.R. 1218 would enforce parents' right 
to counsel their daughters, the reality is that it is 
impossible to legislate complex family relationships. Studies 
reveal that more than half of all young women who do not 
involve a parent in a decision to terminate a pregnancy choose 
to involve another trusted adult, who is very often a 
relative.\15\ Although the bill excepts parents from criminal 
and civil liability, even non-parent adults who are raising a 
child will be swept in by the bill's prohibitions. This is 
because the exception is excessively narrow and refers only to 
a parent or guardian; a legal custodian; or a person designated 
by a state's parental involvement law as a person to whom 
notification, or from whom consent, is required.\16\ The 
Majority rejected amendments that would have excepted other 
family members--such as a grandparent, step- parent, an aunt, 
an uncle, a foster parent, or an adult sibling.\17\ The 
Majority also refused to grant an exception where a parent has 
engaged in an incestuous relationship with the minor. The 
absence of such an exception locks victims of incest into 
requiring consent from the incestuous parent.
---------------------------------------------------------------------------
    \15\ See Henshaw. at 207.
    \16\ H.R. 1218, proposed 18 U.S.C. Sec. 2431(e).
    \17\ Of the 39 states with parental involvement laws, only Illinois 
and South Carolina openly allow consent or notice to a grandparent. See 
``Who Decides? A State-By-State Review of Abortion And Reproductive 
Rights,'' National Abortion Rights Action League, pp. 154-5, (1998). 
Ohio allows notice to a grandparent, step-parent or adult sibling under 
certain circumstances.
---------------------------------------------------------------------------
    The bill also illogically allows for civil actions between 
family members by authorizing lawsuits to be brought by parents 
suffering ``legal harm'' against any person assisting a minor 
in obtaining an abortion across state lines. The legislation is 
so broad that even a person who committed rape or incest 
towards his own daughter is permitted to bring a lawsuit 
seeking compensation under H.R. 1218.
    H.R. 1218 does nothing to help build open, trusting 
relationships between family members. The net result will be 
the exact opposite of the drafter's intent--weakening family 
communications and creating suspicion and mistrust among close 
family members.
III. H.R. 1218 is Dangerously Over Broad
    Supporters of this bill claim to be targeting predatory 
individuals who force and coerce a minor into obtaining an 
abortion. However, the net cast by this bill is far broader and 
more problematic.
    The legislation includes a criminal penalty against persons 
who ``knowingly transport an individual who has not attained 
the age of 18 years across a State line, with the intent that 
such individual obtain an abortion.'' \18\ In other words, this 
law makes it a federal crime to assist a pregnant minor to 
obtain a lawful abortion without any intention to avoid state 
parental consent laws. Anyone simply transporting a minor--a 
bus driver, taxi driver, family member or friend--could be 
jailed for up to a year or fined or both. The same applies to 
emergency medical personnel who may be aware they are taking a 
minor across state lines to obtain an abortion but would have 
no choice if a medical emergency were occurring.
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    \18\ H.R. 1218, proposed 18 U.S.C. Sec. 2431.
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    The supporters of this bill inaccurately compare it to the 
Mann Act, which prohibits the transport of ``any individual 
under the age of 18 years in interstate or foreign commerce, or 
in any Territory or Possession of the U.S., with intent that 
such individual engage in prostitution, or in a sexual activity 
for which any person can be charged with a criminal offense. . 
.'' \19\ The Mann Act, like most other criminal laws, contains 
a mens rea component, that requires that criminally liable 
individuals have an intention to break the law. A person 
convicted of possessing stolen property, for example, must know 
or have reason to know that the property they possess is 
stolen. H.R. 1218 has no such intent requirement and, 
therefore, imposes strict criminal liability for anyone in 
violation.\20\ Where the Mann Act purports to guard against 
corruption of minors, a laudable but not constitutionally-
protected purpose, H.R. 1218 imposes significant restrictions 
on a constitutionally-protected right to an abortion. Thus, it 
seems to us that the analogy is at best weak.
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    \19\ 18 U.S.C. Sec. 2421.
    \20\ The affirmative defense available in H.R. 1218 does not 
address this problem.
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    For example, a nurse at a clinic providing directions to a 
minor or her driver could be convicted as an accessory under 
this legislation. A doctor who procures a ride home for a minor 
and the person accompanying her because of car troubles coupled 
with the minor's expressed fear of calling her parents for 
assistance could be convicted as an accessory after the fact. A 
sibling of the minor who merely agrees to transport a minor 
across state lines without any knowledge of any intent to evade 
the resident state's parental consent or notification laws 
could be thrown in jail and convicted of a conspiracy to 
violate this statute.
    The civil liability provisions of this bill create a 
blanket federal cause of action for a parent who suffers 
``legal harm'' as a result of his or her child being 
transported across state lines, and would further chill family 
and doctor/patient relations. Agency law principles would 
enable an ``aggrieved'' parent to sue medical facilities, 
doctors, nurses, taxi drivers, relatives, ministers, and anyone 
else providing assistance to a minor being transported across 
state lines to obtain an abortion. Not only would the civil 
liability provision subject virtually everyone assisting a 
minor to civil lawsuits, it would subject everyone else the 
minor comes in contact with to the rules of discovery. The 
legislation also raises troubling questions concerning the 
impact of civil liability provisions on Federal Rule of Civil 
Procedure 26 protective orders when the entire scheme of this 
new federal cause of action is based on material that is 
invasive.
IV. H.R. 1218 Is Likely Unconstitutional
    By imposing substantial new obstacles and dangers in the 
path of a minor seeking an abortion, H.R. 1218 also raises a 
number of serious constitutional concerns. First, if enacted, 
H.R. 1218 would violate the rights of states to enact and 
enforce their own laws governing conduct within their 
territorial boundaries, as well as the rights of residents of 
different states to travel to and from any state of the Union 
for lawful purposes. As Professors Laurence Tribe of Harvard 
Law School and Peter Rubin of Georgetown University Law Center 
explained, ``[H.R. 1218] amounts to a statutory attempt to 
force this 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 (unless they are 
willing to go alone).'' \21\
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    \21\ Memorandum to the Comm. on the Judiciary from Laurence H. 
Tribe, Ralph S. Tyler Professor of Constitutional Law, Harvard 
University and Peter J. Rubin, Visiting Associate Professor of Law, 
Georgetown University, at 2.
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    One of the fundamental principles of our federal system is 
that a state may not project its laws into other states. 
Crossing the border into another state, which every citizen has 
a right to do, permits the traveler temporarily to shed her 
home state's laws regulating primary conduct in favor of the 
laws of the state that she is visiting. H.R. 1218 undermines 
this principle, and, in essence states that individuals may 
indeed be bound by the laws of their home states even as they 
traverse the nation by traveling to other states with very 
different laws.
    Proponents of H.R. 1218 attempt to respond to this claim by 
stating that the legislation actually strengthens federalism, 
by allowing states to enforce their laws more effectively. 
However, we have seen no effort by the Majority to empower 
states to enforce their own gun, gambling, sales tax, or fraud 
laws against residents who cross state lines to take advantage 
of the laws of other states. Instead we face another 
shortsighted effort to politicize a tragic family dilemma, 
while doing nothing to respond to the underlying problem of 
teen pregnancies or dysfunctional families.
    The Supreme Court has clearly and consistently held that 
states cannot prohibit the lawful out-of-state conduct of their 
citizens, nor may they impose criminal sanctions on this 
behavior, as H.R. 1218 does.\22\ The Court recently reaffirmed 
this principle in its recent landmark right to travel decision, 
Saenz v. Roe.\23\ In its decision, the Court held that, even 
with congressional approval, California's attempt to impose on 
recently-arrived residents the welfare laws of their former 
states of residence was an unconstitutional penalty upon their 
right to interstate travel.\24\ The decision also reaffirmed 
that the constitutional right to travel under the Privileges 
and Immunities Clause of Article IV, Sec. 2, provides a similar 
type of protection to a non-resident who enters a state with 
the intent eventually to return to her home state.\25\
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    \22\ See, e.g., Healy v. Beer Inst., 491 U.S. 324, 336 n.13 (1989) 
(quoting Edgar v. Mite Corp., 457 U.S. 624, 643 (1982) (plurality 
opinion), (quoting Shaffer v. Heitner, 433 U.S. 186, 197 (1977) ``[T]he 
limits on a State's power to enact substantive legislation are similar 
to the limits on the jurisdiction of state courts. In either case, `any 
attempt ``directly'' to assert extraterritorial jurisdiction over 
persons or property would offend sister States and exceed the inherent 
limit of the State's power.' '')).
    \23\ 119 S. Ct. 1518, 1525-1527 (1999) (describing the various 
components of the right to travel and their constitutional 
derivations).
    \24\ See id. at 1526-1527.
    \25\ See id.
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    This principle applies to minors' rights to seek an 
abortion on non-discriminary terms as well as to welfare 
benefits. In Saenz, the Court specifically referred to Doe v. 
Bolton,\26\ which held that, under Article IV of the 
Constitution, a state may not restrict the ability of visiting 
non-residents to obtain abortions on the same terms and 
conditions under which they are made available by law to state 
residents: ``[T]he Privileges and Immunities Clause, Const. 
Art. IV, Sec. 2, protects persons . . . who enter [a state] 
seeking the medical services that are available there.'' \27\ 
It also is clear that such protections will flow to minors 
given that Planned Parenthood v. Danforth \28\ held that 
pregnant minors have a constitutional right to choose whether 
to terminate a pregnancy.
---------------------------------------------------------------------------
    \26\ 410 U.S. 179.
    \27\ Id. at 200.
    \28\ 428 U.S. 52, 74 (1976).
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    Finally, we would note that, in addition to these clear-cut 
constitutional problems, others have observed that the bill may 
well violate other constitutional requirements. For example, 
the ACLU, Professor Tribe and others have opined that the bill 
also contains an inadequate life exception and lacks any health 
exception, in possible abrogation of Roe v. Wade and its 
progeny.\29\ Additionally, the bill may impose an ``undue 
burden'' on the right to choose an abortion.\30\ The Center for 
Reproductive Law & Policy also has written that H.R. 1218 
violates the First Amendment's right to associate as well as 
the Equal Protection Principle of the Fifth Amendment.\31\
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    \29\ The ACLU points to Planned Parenthood v. Casey, 505 U.S. 833, 
880 (1992) (holding that all abortion regulations must contain a valid 
medical emergency exception ``for the essential holding of Roe forbids 
a State from interfering with a woman's choice to undergo an abortion 
procedure if continuing her pregnancy would constitute a threat to her 
health). H.R. 1218 only provides an exception to its penalties when the 
abortion is ``necessary to save the life of a minor because her life 
was endangered by a physical disorder, physical injury, or physical 
illness, including a life-endangering physical condition caused by or 
arising from pregnancy itself.'' See also Letter from Laurence H. Tribe 
to Members of the Senate Judiciary Committee at 1 (June 23, 1998) 
(hereinafter Tribe Letter).
    \30\ See Tribe Letter.
    \31\ See ``Statement of the Center for Reproductive Law & Policy In 
Opposition to the ``Child Custody Protection Act,'' H.R. 1218, June 21, 
1999 (stating that H.R. 1218 violates the First Amendment Right to 
Associate by criminalizing the association between a minor and another 
person for the purpose of effectuating the minor's right to choose 
abortion and arguing that H.R. 1218 violates the Equal Protection 
Principle of the Fifth Amendment by impermissibly classifying among 
minors being transported across state lines as well as among 
individuals transporting them).
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                               Conclusion

    H.R. 1218 does nothing to make abortion less necessary, 
only more dangerous. It will not accomplish its policy purposes 
of encouraging parental involvement and takes the wrong 
approach to the problem of teenage pregnancy. It does nothing 
to increase teen awareness of the dangers of premarital sex. 
The bill preys on the problems of dysfunctional families where 
children cannot confide in their parents or fear physical harm 
when they do. The bill does nothing to stop a teenager from 
actually obtaining an out-of-state abortion, other than making 
the trip more dangerous.
    We are disappointed that the Majority has held steadfast in 
its efforts to isolate children in this way. Because H.R. 1218 
is a burdensome attack on the rights and well-being of young 
women, we dissent from this legislation.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   Tammy Baldwin.
                                   Barney Frank.
                                   Robert C. Scott.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Steven R. Rothman.
                                   Anthony D. Weiner.