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# Legislative Bulletin...........................................September 26, 2006

> **Contents:**
>
> **S. 403** -- Child Custody Protection Act
>
> **H.R. 2679** -- Public Expression of Religion Act

S. 403 --- Child Custody Protection Act --- *as received* (Sen. Ensign,
R-NV)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Tuesday, September 26, 2006, subject to a closed rule
([H.Res.
1039](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2124)).
Note that the rule provides that the House will take up the
Senate-passed S.403, strike the language and replace it with the
[amendment in the nature of a
substitute](http://www.rules.house.gov/109_2nd/specialrules2nd109/S403/1092nd_s403_sensen.pdf)
(primarily the House-passed language, plus a key Senate provision).

This bill is a modified version of the House-passed Child Interstate
Abortion Notification Act (CIANA). In past Congresses, it was introduced
in the House (by Rep. Ros-Lehtinen) as the Child Custody Protection Act,
which passed the House (H.R. 3682) on July 15, 1998,
[276-150](http://clerk.house.gov/evs/1998/roll280.xml), on June 30,
1999, (H.R. 1218) by a vote of
[270-159](http://clerk.house.gov/evs/1999/roll261.xml), and in the 107th
Congress (H.R. 476) on April 17, 2002, by a vote of
[260-161](http://clerk.house.gov/evs/2002/roll097.xml).

In both the 106^th^ and 107^th^ Congresses, Rep. Sheila Jackson-Lee
offered a motion to recommit the bill with instructions. Her motion
would have allowed an adult sibling, a grandparent, or a minister,
rabbi, pastor, priest, or other religious leader of the minor to
transport a pregnant minor for an abortion without parental consent or
notification. The motion to recommit was rejected in 1999, by 164-268
(roll call #260) and in 2002, by a vote of
[173-246](http://clerk.house.gov/evs/2002/roll096.xml).

**[Summary]{.underline}:** S. 403, as amended, makes it a criminal
offense to knowingly transport a minor across a state line to obtain an
abortion in circumvention of her state's parental consent or parental
notification law. S. 403 states:

> "whoever knowingly transports a minor across a State line, with the
> intent that such minor 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 minor resides, shall be fined under this title \[up to
> \$100,000\] or imprisoned not more than one year, or both."

Additional provisions of the bill are as follows:

-   The bill allows exceptions 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. The bill also notes that the pregnant minor
    herself and her parent(s) are exempted from the provisions of this
    act.

-   The bill allows a defendant (charged in violating this Act) to
    present an "affirmative defense" when being prosecuted for the
    offence if: 1) he reasonably believed that the required parental
    consent took place already took place (based on information obtained
    directly for the minor or her parent), or 2) was presented
    documentation showing (to a "reasonable degree of certainty") that a
    court in the minor's state residence waived the parental
    notification requirement.

-   The bill also makes it a requirement in federal law for an
    abortionist who performs or induces an abortion on a minor who lives
    out of state to provide at least 24 hours actual notice to a parent
    of the minor before performing the abortion. If actual notice to
    such parent is not possible after a reasonable effort has been made,
    24 hours constructive notice (such as certified mail or return
    receipt mail) must be given to a parent. Five exceptions to this
    requirement are allowed if:

1)  the state where the abortion takes place already has a law in force
    that requires parental involvement and that law is followed;

2)  the abortionist has documentation that the minor's home state court
    has waived the home state parental involvement law;

3)  the minor declares in a signed written statement that she is the
    victim of sexual abuse, neglect, or physical abuse by a parent, and,
    before an abortion is performed on the minor, the physician notifies
    the authorities specified to receive reports of child abuse or
    neglect by the law of the state in which the minor resides of the
    known or suspected abuse or neglect;

4)  the abortion is 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, or the delay in
    performing the abortion (caused by fulfilling the parental
    notification requirements) would cause major harm to the minor, in
    the judgment of the minor's attending physician. If the abortion was
    performed, the abortionist must notify the parent in writing within
    24 hours of the abortion and regarding the circumstances that
    warranted the exception; and

5)  the minor is physically accompanied by a person who presents
    documentation to the abortionist showing "with a reasonable degree
    of certainty" that he or she is the parent of the minor.

    -   The bill prohibits a parent who has committed incest with a
        minor to transport the minor across a state line to obtain an
        abortion, and provides for violations to be punishable by fine
        or up to one year in prison, or both.

    -   The bill establishes that a parent who suffers harm from
        violation of these provisions may obtain appropriate relief in a
        civil action.

    -   Applies a severability clause to all provisions of this Act, so
        that if one provision of the Act is found unconstitutional, the
        other provisions are still valid.

    -   Stipulates that the provisions of this Act will take effect 45
        days after the bill is signed into law.

**[Additional Background]{.underline}:** Currently, 46 states have
enacted some form of a parental involvement statute, though only 29 are
in effect.

The 29 states with parental consent or notification laws in force:
Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Utah, Virginia, and Wyoming. For a complete state-by-state list
of parental consent/notification laws go to:
<http://www.nrlc.org/Federal/CCPA/ParentalLawsFS.pdf>.

**[Amendments]{.underline}:** None, other than the amendment in the
nature of a substitute, which is summarized above.

**[Committee Action]{.underline}:** S. 403 was introduced in the Senate
on February 16, 2005, and passed the Senate by a vote of
[65-34](http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00216)
on July 25, 2006. The House version, H.R. 748, was introduced on
February 10, 2005, and referred to the Judiciary Committee's
Subcommittee on the Constitution, which held a mark-up on March 17,
2005. The full Committee reported the bill to the House by a vote of
20-13 on April 13, 2005 (House Report
[109-51](http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr051):)).

[**Administration Policy**:]{.underline} A Statement of Administration
Policy was unavailable at the time of publication.

**[Cost to Taxpayers]{.underline}:** CBO estimates that implementing S.
403 would not result in any significant cost to the federal government.
Enacting S. 403 could affect direct spending and revenues; however, CBO
estimates that any such impact would not be significant.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** Yes, the bill creates a new federal crime
for transporting a minor across state lines to subvert her state s
parental involvement laws relating to abortion.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** Yes, CBO reports that this bill
contains both an intergovernmental and a private sector mandate as
defined in the Unfunded Mandates Reform Act by requiring abortionists,
in certain cases, to provide parental notification before performing an
abortion on a pregnant minor from out of state.

**[Constitutional Authority]{.underline}:** The Judiciary Committee, in
Report 109-51, finds Constitutional

Authority under Article I, Section 8, Clause 3 of the Constitution
(power to regulate interstate

Commerce).

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 2679 --- Public Expression of Religion Act --- *as reported*

(Hostettler, R-IN)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Tuesday, September 26, 2006, subject to a closed rule
([H.Res.
1038](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2125)),
not allowing any amendments.

**[Summary]{.underline}:** H.R. 2679 would place limitations on certain
lawsuits against state, local, and federal officials and entities,
specifically regarding the current practice (in Establishment Clause
cases) of requiring the defendant to pay the attorney's fees of the
plaintiff (amending 42 U.S.C 1983). The specific provisions of the bill
are as follows:

-   Prohibits attorneys' fees from being awarded to the prevailing party
    in Establishment Clause cases (1^st^ Amendment, prohibiting an
    establishment of religion or abridging the free exercise thereof)
    against states, local officials, federal officials, or the U.S
    government.

-   Narrows the scope of the bill to apply only to rulings of injunctive
    or declaratory relief in cases involving a violation of the
    Establishment Clause, and states those violations may include cases
    such as:

1)  a veterans' memorial containing religious words or imagery;

2)  a public building containing religious words or imagery;

3)  the presence of religious words or imagery in the official seals of
    a states or its local political subdivisions; and

4)  the chartering of Boy Scout units by states or local political
    subdivisions.

-   Provides that the provisions of this Act will take effect on the
    date of enactment (when the bill is signed into law), and apply to
    all cases currently pending or commenced on or after the date of
    enactment.

**[Additional Background]{.underline}:** In regard to the widespread
abuse and misapplication of the 1^st^ Amendment and current law, the
Judiciary Committee states: "Under current law, attorneys' fees can be
demanded by the winning side in lawsuits against States or localities
and the Federal government\--brought under the Constitution's
Establishment Clause\--demanding that veterans' memorials be torn down
because they happen to have religious symbols on them; that the Ten
Commandments be removed from public buildings; that the Boy Scouts be
forced off public property; and that crosses be eliminated from official
county seals, among other things. Caselaw under the Establishment Clause
is so unpredictable that States and localities know defending themselves
in such lawsuits is fraught with uncertainty.

"The threat of having to pay attorneys' fees in such cases should they
happen to lose sometimes leads States and localities to forego whatever
rights they might have under the Constitution\--and concede to the
demands of those bringing Establishment Clause lawsuits\--often before
such cases even go to trial." According to the Committee, this bill
seeks to remedy these abuses.

**[Committee Action]{.underline}:** H.R. 2679 was introduced on May 26,
2005, and referred to the Judiciary Committee's Subcommittee on the
Constitution. The Committee held hearings, a mark-up, and reported the
bill reported to the House by voice vote on September 7, 2006 (House
Report
[109-657](http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr657):)).

[**Administration Policy**:]{.underline} A Statement of Administration
Policy was unavailable at the time of publication.

**[Cost to Taxpayers]{.underline}:** CBO expects that "enacting H.R.
2679 would have no significant effect on the federal budget," since few
suits are brought against the federal government for the violations
discussed above.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** The Judiciary Committee, in
House Report
[109-657](http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr657):),
cites constitutional authority in Article I, Section 8, Clause 3 (power
of Congress to regulate commerce), and Article III, Section 2, Clause 2
(power of Congress to delegate federal court jurisdiction).

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

> **\###**