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95–944 PDF 2004

S. HRG. 108–619

THE CHILD CUSTODY PROTECTION ACT:

PROTECTING PARENTS’ RIGHTS AND CHILDREN’S

LIVES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JUNE 3, 2004

Serial No. J–108–78

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 96

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 99

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 101

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1

prepared statement .......................................................................................... 140

WITNESSES 

Collett, Teresa Stanton, Professor of Law, University of St. Thomas School 

of Law, Minneapolis, Minnesota ......................................................................... 16

Ensign, Hon. John, a U.S. Senator from the State of Nevada ............................. 3

Farley, Joyce, Dushore, Pennsylvania ................................................................... 6

Harrison, John C., Professor of Law, University of Virginia, Charlottesville, 

Virginia ................................................................................................................. 13

Lane, Crystal, Dushore, Pennsylvania ................................................................... 7

Ragsdale, Reverend Doctor Katherine Hancock, St. David’s Episcopal Church, 

Pepperell, Massachusetts, on behalf of the NARAL Pro-Choice America 

and the Religious Coalition for Reproductive Choice America and the Religious Coalition for Reproductive Choice ............................................................. 8

Rubin, Peter J., Professor of Law, Georgetown University, Washington, D.C. .. 14

QUESTIONS AND ANSWERS 

Responses of Teresa Collett to questions submitted by Senator Sessions .......... 25

SUBMISSIONS FOR THE RECORD 

Advocates for Youth, American Association of University Women, American 

Civil Liberties Union, American Humanist Association, American Medical 

Women’s Association, Center for Reproductive Rights, Central Conference 

of American Rabbis, Disciples for Choice, Legal Momentum (the New NOW 

Legal Defense and Education Fund), NARAL Pro-Choice America, National 

Abortion Federation, National Council of Jewish Women, National Family 

Planning and Reproductive Health Association, National Organization for 

Women, National Partnership for Women & Families, National Women’s 

Law Center, People for the American Way, Physicians for Reproductive 

Choice, Reproductive Health Technologies Project, Sexuality Information 

and Education Council of the United States, Alan Guttmacher Institute, 

Union for Reform Judaism, Unitarian Universalist Association of Congregations, joint letter ................................................................................................... 28

Alan Guttmacher Institute, Susheela Singh, Vice President for Research, 

Washington, D.C., letter and attachments ........................................................ 30

American Academy of Pediatrics and Society for Adolescent Medicine, statement ...................................................................................................................... 32

American Civil Liberties Union, Laura W. Murphy, Director, Washington, 

D.C., Memorandum and attachments ................................................................ 39

Center for Reproductive Rights, New York, New York, statement ..................... 61

Collett, Teresa Stanton, Professor of Law, University of St. Thomas School 

of Law, Minneapolis, Minnesota, prepared statement ...................................... 74

Page

IV

Ensign, Hon. John, a U.S. Senator from the State of Nevada, prepared statement ...................................................................................................................... 88

Farley, Joyce, Dushore, Pennsylvania, prepared statement ................................ 90

Harrison, John C., Professor of Law, University of Virginia, Charlottesville, 

Virginia, prepared statement .............................................................................. 92

Lane, Crystal, Dushore, Pennsylvania, prepared statement ............................... 98

Philip, Diana, Legal Advocate, Austin, Texas, prepared statement .................... 105

Ragsdale, Reverend Doctor Katherine Hancock, St. David’s Episcopal Church, 

Pepperell, Massachusetts, on behalf of the NARAL Pro-Choice America 

and the Religious Coalition for Reproductive Choice America and the Religious Coalition for Reproductive Choice, prepared statement ......................... 116

Roberts, Eileen, Mothers and Advocates for Mothers Alone, (MAMA) Inc., 

Fredericksburg, Virginia, prepared statement .................................................. 121

Rubin, Peter J., Professor of Law, Georgetown University, Washington, D.C. .. 123

Zabin, Laurie Schwab, Ph.D., Johns Hopkins University, Baltimore, MD, 

prepared statement .............................................................................................. 143

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THE CHILD CUSTODY PROTECTION ACT: PROTECTING PARENTS’ RIGHTS AND CHILDREN’S LIVES 

THURSDAY, JUNE 3, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 3:15 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions presiding. 

Present: Senators Sessions and Ensign [ex officio.] 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. We will come to order. I just have to extend 

an apology for the extended time that vote took. We have a little 

courtesy to give a few extra minutes, and they gave too much time 

as far as I am concerned in letting everybody make sure they got 

to cast their vote on a 95 to nothing vote. 

And they have two more, so I cast my second vote, and it looks 

like we will have to go back for another vote. But I thought, with 

your indulgence, I would at least make an opening statement and 

maybe we can get started, and then maybe just one more short 

break before the interruption. 

Today’s hearing will take testimony on the Child Custody Protection Act, offered by our colleague and friend, Senator John Ensign. 

I am pleased to be a cosponsor of the bill. In fact, I was a cosponsor 

of the bill about 6 years ago when Senator Spence Abraham first 

offered it. We will hear both sides of the issue today from excellent 

panels. 

The proposed legislation deals with what I think is a very real 

problem involving interstate transportation of minor children for 

the purposes of abortion, in violation of State-protected custody 

rights of parents, and the well-being of children. It is not about 

abortion. It is about the custody rights of parents. 

This legislation will be a step toward defeating the legal loophole 

that now exists. It is a loophole that cheats parents out of their 

basic right to know about the health concerns of their minor children. This legislation does not expand or contract existing State 

laws or appear in any way to contradict Supreme Court precedent 

involving minor children and abortion. It would simply deal with 

how to give effect to constitutionally valid parental custody rights 

in our mobile society. 

2

The Supreme Court has made it clear in Planned Parenthood v. 

Casey, a decision that expanded abortion rights, that it is proper 

for a State to declare that an abortion should not be performed on 

a minor child unless a parent is consulted. Many States require parental consent before a principal or a teacher can hand out an aspirin, and many States have concluded that to perform an abortion 

on a minor without parental consent or notice is a very dramatic 

interference on parents’ protected interests. 

It is the parents, after all, who will have to monitor their daughter’s post-abortion medical condition. They love the child and they 

want her to have the best care. They have every right to not want 

some older man or some other person, for example, who has no real 

interest in their daughter’s well-being making serious health decisions, or leading her into serious health decisions without their 

knowledge at all. 

In my view, the right of parents to be involved in these major 

decisions is fundamental and ought not be lightly transgressed. 

State parental consent and notification statutes are a legitimate 

step to protect basic parental rights. However, we do not even need 

to discuss the merits of parental consent legislation because the 

issue before us today is not whether States should have such laws. 

The issue before us today is whether or not we should allow the 

circumvention of such constitutional State laws which are designed 

to protect children’s health and parental rights. 

There is direct evidence that third parties are interfering with 

protected parental rights by taking minor children for the purpose 

of an abortion from a State where parents have to be notified, to 

another State that does not have a notification law. This bill would 

preclude these third parties. It is not a radical or extreme proposal. 

Rather, it is just good public policy. 

This is the type of legislation that even some pro-choice advocates agree with. Dr. Bruce Lucero, a former abortionist from Alabama, has performed 45,000 abortions. He supports this legislation. 

In a New York Times op ed he wrote that, ‘‘dangerous complications’’ are more likely to result when parents are not involved in 

these out-of-State abortions. 

We will hear evidence today that demonstrates that this issue 

does not involve a few isolated cases. An attorney for the Center 

for Reproductive Law and Policy, Kathryn Kolbert, has stated, 

‘‘There are thousands of minors who cross state lines for an abortion every year and who need assistance from adults to do that.’’ 

We have seen several examples of abortion clinics which openly 

place advertisements in the yellow pages of phone books, in nearby 

States that have parental consent statutes. These advertisements 

proudly proclaim ‘‘no parental consent.’’ 

Let me just show you a couple of these: ‘‘Abortion: No Waiting 

Period, No Parental Consent,’’ and this was in the Pennsylvania 

phone book yellow pages encouraging people to go across the State 

line to Maryland. Pennsylvania has a parental notification statute. 

Here is another one from the Pennsylvania phone book: ‘‘No 

Waiting Period, No Parental Consent Required.’’ 

‘‘No Parental Consent or Waiting Period,’’ and this was an ad for 

a Buffalo, New York abortion clinic in the Erie, Pennsylvania yellow pages. 

3

This is an ad from a Phillipsburg, New Jersey, clinic, again no 

parental consent. 

You have another one there. This ad is located on the website for 

an Englewood, New Jersey clinic. However, it is located on the 

page for Pennsylvania abortion clinics. 

This is on the Pennsylvania website abortionclinic.com. These 

ads all target Pennsylvania teenagers and entice them to surrounding States. It doesn’t just happen in Pennsylvania. On the 

State pages for 23 States with parental involvement laws, on the 

abortionclinic.com website, there are ads for abortion clinics in 

States without these laws. So we have an open policy of encouraging transportation in interstate commerce to evade State laws. It 

is the policy of these clinics to do so. 

Some will argue the bill is unconstitutional and we will hear testimony on that today, but the Supreme Court has upheld parental 

notification and consent laws and this bill would simply help enforce those. It does nothing more than prohibit the evasion of the 

existing State constitutional statutes. 

I was a Federal prosecutor for nearly 15 years and I remember 

the long-time Federal statute, the Mann Act, that prohibited the 

interstate transportation of women across State lines for the purposes of prostitution. That law has been upheld numerous times 

since the early 1900’s. 

Similarly, as a prosecutor I prosecuted in Federal court those 

who transported in interstate commerce stolen motor vehicles. It 

was not the theft of the vehicle that was the basis for the Federal 

crime. It was the transportation in interstate commerce of a vehicle 

that has been stolen. That was the gravamen of the offense. 

So this bill is narrow in scope. It does not prohibit interstate 

abortions. It does not invalidate any State laws. It does not establish a right to parental involvement for residents of any other State 

that does not already have a parental involvement law. It doesn’t 

even attempt to regulate the activities of the pregnant minor herself. It only reaches the conduct of outside parties who wrongfully 

usurp the rights of parents that are guaranteed by State law. 

I have concluded that this bill is constitutional. We will have opposition to that today, and I think it deserves serious consideration 

and we will look at it carefully. I look forward to the testimony 

today as we continue to study this legislation. If any flaws exist, 

we would like to know what they are and seek to improve the statute. I know Senator Ensign would agree with that. I do, however, 

believe that minor children are being abused through the evasion 

of State law, and that Congress should act to place the responsibility for a child’s care where that responsibility belongs, with the 

parents. 

Senator Ensign, thank you for introducing this legislation and 

pursuing it. Thank you for your leadership, in general, in the Senate, and we would be glad to hear from you at this time. 

STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM 

THE STATE OF NEVADA 

Senator ENSIGN. Well, thank you, Mr. Chairman, and thank you 

for holding this hearing on what I believe is very important legislaVerDate 0ct 09 2002 17:18 Sep 27, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95944.TXT SJUD4 PsN: CMORC
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tion. If I may ask that my full statement be made part of the 

record and then I will just try to summarize. 

Senator SESSIONS. It will. 

Senator ENSIGN. Mr. Chairman, there are few issues in America 

that bring out as much emotion as abortion. There are good people 

on both sides of this issue and there are a lot of reasons that people 

approach it from different angles. When it comes to separating out 

what are reasonable restrictions, there are many issues that we 

should be able to come to agreement on and this legislation is a 

prime example. 

USA Today and CNN, which are certainly not known as conservative organizations, conducted a poll that found that almost threequarters of Americans support the idea of parental consent prior to 

a minor having an abortion. Judicial bypass laws have been written across the country for those cases where there is rape or incest 

involved within a family, because minors may be afraid to go to one 

of the parents because of abuse problems. There are ways to have 

the judicial system involved so that there are responsible people 

ensuring the safety of the minor. But these laws are set up in such 

a way that anyone, just because they say they care, can come and 

take somebody across State lines. 

Make no mistake about it, abortion is a surgical procedure. It 

may be a simple surgical procedure, but it is a surgical procedure. 

I have three children. My children cannot receive simple medication at school without my permission. A simple medication like aspirin given to the wrong person, even just a simple antibiotic, can 

cause some people to have a harmful reaction. That is one of the 

reasons that parental permission is so important because the parents are the most intimately involved people in that child’s life. 

They know their medical history the best and are also the people 

that will do the follow-up care, for whatever the medical condition 

is. 

If a child is taken across State lines for a surgical abortion and 

has complications that night or the next day, now this little girl is 

at home. She was afraid to tell her parents about the abortion in 

the first place and so a friend, or maybe it was the 20-somethingyear-old boyfriend, took the girl somewhere to have an abortion. 

Two-thirds of the pregnancies for under-age girls are fathered by 

guys over 20 years of age. 

It is in that person’s best interest, or at least they think it is in 

their best interest, to talk the little girl into having an abortion 

and to take them across state lines. But where is that person when 

the girl goes home and starts bleeding and has complications, or 

has an infection? This little girl is now afraid to tell her parents 

because not only, one, she was afraid of telling them about the 

pregnancy in the first place, but now they have compounded it by 

having an abortion. Victims may be terrified to tell their parents 

and they may wait too long, suffer in privacy, and end up having 

complications that could cost that little girl her life. 

I have read through some of the testimony today. We are going 

to hear some people that will say that it is the compassionate thing 

to do to take somebody across State lines to get an abortion. However, we need to look at the whole person. That is the reason we 

5

allowed the courts to be involved in these parental notification and 

parental consent laws. 

We need to have the rule of law established and enforced. The 

purpose of the legislation before us today is to make sure that 

State parental notification and parental consent laws are uphold, 

so—that people cannot bypass those by having an adult take a 

minor across State lines. That is the bottom line for this. 

I wish that all States would enact parental consent laws, not just 

parental notification, but actual parental consent laws. The people 

that care the most for the child should be involved in this kind of 

decision and, if there is aftercare needed, be fully informed in order 

to care for their young daughter. 

I want everybody to try to put themselves in a position of a parent. You know, at that age teenagers go through a lot of emotions. 

They go through maybe a troubled time with their mom or their 

dad, but what parent wouldn’t wrap their arms around this little 

girl? They are going to give them advice, and it may mean a decision other than abortion. In a lot of families, if they decide to have 

the abortion, then they will be there for not only the physical care 

afterwards, but also through the trauma associated with abortion 

psychologically and emotionally, as well. 

So, Mr. Chairman, I appreciate your bringing this issue before 

this Committee and having a hearing on it. Nobody wants to talk 

about abortion these days. It is something that everybody wants to 

avoid. Nobody wants to talk about it. They are tired, they are sick 

of it. But there are lives that are being lost out there because these 

girls aren’t being cared for post-abortion. I believe this legislation 

is necessary and I appreciate your willingness to have a hearing on 

it. 

Thank you. 

Senator SESSIONS. Thank you, Senator Ensign, for your leadership and your excellent statement. There is almost a suggestion 

sometimes that parents can’t be trusted to love their children. 

These people that would take them across State lines, are they 

going to provide them a home? Are they going to help educate 

them? Are they going to raise this child with love and affection and 

for the rest of their lives be bonded together? No, they are not. 

To say that a parent who raised a child from her youth up should 

not be engaged in some issue of this importance, I think, is a mistake. I am glad to see that a majority of States have passed laws 

that do provide for notification. We know that any State law that 

does not withstand constitutional muster won’t stand and would 

not be predicate support for the bill you have offered. But we will 

talk about that more later. 

Senator Ensign, I think there are a few minutes left on this second vote, if it goes according to time the way it is supposed to and 

not like— 

Senator ENSIGN. Mr. Chairman, I already voted, so I am in good 

shape. 

Senator SESSIONS. Okay, all right. I did, too, so we are into the 

third vote now. Did you vote on that? 

Senator ENSIGN. Yes. 

Senator SESSIONS. Well, come up. You can preside, and it won’t 

take me but a minute to get this vote done. 

6

Also, for the record I will offer Senator Leahy’s statement, the 

ranking Democratic member of the Judiciary Committee who could 

not be here, but has provided a statement. 

I think it might be appropriate if we do start with the second 

panel. Senator Ensign, you might call them up and introduce them. 

Senator ENSIGN [PRESIDING.] Simply, this is just to make sure 

that Senator Sessions can be here. I am not a lawyer; he is, and 

so having all of the legal people here, I would like to have him here 

during their testimony. So if you all do not mind, we could just reverse the next two panels’ order. 

If we could call up panel number three: Ms. Joyce Farley, Ms. 

Crystal Lane, and Reverend Doctor Katherine Hancock Ragsdale, 

if you would all come up. If any of you have full statements, they 

will all be made part of the record and if you could try to summarize your remarks in around 5 minutes, we would certainly appreciate that. There is a little timer in front of you, and then we can 

engage in some questions and answers afterwards. 

Why don’t we just start with you, Ms. Farley, and we will work 

down the table? Thank you. 

STATEMENT OF JOYCE FARLEY, DUSHORE, PENNSYLVANIA 

Ms. FARLEY. Good afternoon, members of the U.S. Senate Judiciary Committee and all the public here. My name is Joyce Farley 

and I am a resident of the State of Pennsylvania. I have been 

asked by Senator Sessions to come before you today to explain why 

I support the Child Custody Protection Act. 

Just about this time in 1995, my then-12-year-old daughter, 

Crystal, was intoxicated and raped by a 19-year-old male whom she 

had met after entering the local high school as a seventh-grade student. I was aware at this time that this male was trying to befriend my daughter and had requested him not to call the house 

or come to visit. This male had a reputation of seeking out the seventh-grade females to establish relationships for sex, and unfortunately Crystal had become one of his victims. This male is currently in prison for a similar rape conviction. Unfortunately, many 

perpetrators of this type have many more than one victim. 

I was at the time, and still am, a mother working full-time away 

from home. Both parents working full-time or single-parent families are not unusual in our society, and why your support of the 

Child Custody Act is so important. The people of our Nation need 

to know that our children are a blessing and that we will protect 

them from harm. 

On August 31, 1995, I discovered my 13-year-old daughter Crystal was missing from home. An investigation by the police, school 

officials and myself revealed the possibility that Crystal had been 

transported out of State for an abortion. I can’t begin to tell you 

the fear that enveloped me, not knowing where my daughter was, 

who she was with, if she was in harm’s way, and to learn in this 

manner that my young daughter was pregnant. 

By early afternoon, Crystal was home safe with me, but so much 

had taken place in that 1 day. The mother of this 19-year-old male 

had taken Crystal for an abortion into the State of New York. Apparently, this woman decided this was the best solution for the situation caused by her son, with little regard for the welfare of my 

7

daughter. Situations such as this is what the Child Custody Act 

was designed to help prevent. 

I am a loving, responsible parent whose parenting was interfered 

with by an adult unknown to me. My child was taken for a medical 

procedure to a physician and facility that I had no knowledge of. 

When Crystal developed complications from this medical procedure, 

this physician was not available and refused to supply necessary 

medical records to a physician that was available to provide Crystal the medical care she needed. 

I ask you please, in considering the Child Custody Protection 

Act, to put aside your personal opinions on abortion and please just 

consider the safety of the minor children of our Nation whose lives 

are put at risk when taken out of their home State to avoid abortion laws that are designed to protect them from harm. 

Please don’t allow harm to our children in order to protect abortion or any other medical procedure. Please allow loving, caring, responsible parents the freedom to provide the care their adolescent 

daughters need without interference from criminals or people who 

may think they are helping, but actually cause more harm than 

good. 

In many ways, time is a great healer, but as imperfect human 

beings we don’t always know the effect of our actions or how deep 

the physical and emotional scars actually dwell. I urge you again 

to help avoid the scarring of America’s adolescent girls by voting 

in favor of the Child Custody Protection Act. 

Thank you. 

[The prepared statement of Ms. Farley appears as a submission 

for the record.] 

Senator ENSIGN. Thank you, Ms. Farley. 

Ms. Lane. 

STATEMENT OF CRYSTAL LANE, DUSHORE, PENNSYLVANIA 

Ms. LANE. My name is Crystal Lane and I am here today to tell 

you why I think the Child Custody Protection Act should be passed 

and made part of our National laws. I believe in this bill and I 

hope my message will make those present here today believers as 

well. 

When I was 13 years old, I was taken across the Pennsylvania 

State line to New York for an abortion. The woman that took me 

was in her mid-40’s. I was so young and immature in many ways. 

I trusted this woman because she was older and I was so scared, 

I didn’t know what to do. 

I really think I could have lost my life at the abortion clinic. I 

was awake through the entire time and asked them to stop, but no 

one listened to me. I think all the time about how things would 

have been different if my mom was with me or if I had told her 

I was pregnant. I would have been taken care with love rather 

than how I was treated. 

After the abortion, things started to go wrong right away and 

just kept getting worse, until my mom took me to our family doctor 

and on to the hospital. Since the first abortion I had was incomplete, the procedure needed to be repeated. Going through all this 

was the most terrifying time of my life. 

8

I am pleading to everyone here today to please take my story to 

heart and mind when considering the Child Custody Protection 

Act. I believe the passing of this bill will protect the children of our 

Nation from even more horrible things than what happened to me 

when I was only 13 years old. I was, and am, really nervous about 

coming here today, but I realize how important this bill is and the 

good it can bring to the people and the children this Nation. 

Thank you all for taking the time to listen to me today. I hope 

you find it in your hearts to do the right thing. 

[The prepared statement of Ms. Lane appears as a submission 

for the record.] 

Senator ENSIGN. Thank you, Ms. Lane. I know what kind of pain 

and emotions this must bring up for you and I appreciate you being 

here. 

Reverend Ragsdale. 

STATEMENT OF REVEREND DOCTOR KATHERINE HANCOCK 

RAGSDALE, ST. DAVID’S EPISCOPAL CHURCH, PEPPERELL, 

MASSACHUSETTS, ON BEHALF OF NARAL PRO-CHOICE 

AMERICA AND THE RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE 

Rev. RAGSDALE. Thank you. You do have the full version of my 

comments, which are a little long so I will give you an abbreviated 

version, within which I want to tell you one story and then make 

a couple of points. 

I am the parish priest of a small country church in Massachusetts. Some years ago, I went to pick up a 15-year-old girl and 

drive her to Boston for an abortion. I didn’t know that girl yet. I 

knew her school nurse. The nurse had called me a few days earlier 

to see if I knew where she might find bus and cab fare for the girl. 

I was stunned at the idea of a 15-year-old girl being asked to take 

multiple buses into the city all alone. 

The nurse shared my concern, but explained that the girl had no 

one to turn to. She feared for her safety if her father found out and 

there were no other relatives close enough to help. So I went, and 

during our one-hour drive we talked. She told me about her dreams 

for the future, all the things she thought she might like to do and 

be. I talked to her about the kind of hard work and personal responsibility it would take to get there. 

She told me about the guilt she felt for being pregnant, even 

though the pregnancy was a result of date rape. She didn’t call it 

that. She just told me about the boy who pushed her down and 

forced himself on her. But he didn’t pull a gun or break any bones 

or cause any serious injury, other than pregnancy and a wounded 

spirit. So she didn’t know to call it rape. So I talked to her about 

how not everything that happens to us is our own fault or God’s 

will, and about how very much God loves her. 

I took her inside and then I went downstairs to get a couple of 

prescriptions filled for her, and I paid for them after I was informed that otherwise her father would be billed. Then I took her 

back to school and back to the nurse’s office, and then I drove home 

wondering how many bright, funny, thoughtful girls, girls brimming with promise, were not lucky enough to know someone who 

knew someone who could help. 

9

I despaired that any young woman should ever find herself in 

such a position, but frankly it never occurred to me that anyone 

would ever try to criminalize those who were able and willing to 

help. I did not, to my knowledge, break any laws that day, but I 

am here to tell you that if it had been necessary, I would have. And 

if helping young women like her should be made illegal, I will 

nonetheless continue to do it. I don’t have a choice. I took vows, 

and if you tell me that it is a crime to exercise my ministry to care 

for all God’s people—young and old, rich and poor, weak and strong 

alike—then I will have no choice but to do it anyway. And I am 

not alone; there will be a lot of jailed clergy. 

I find it troubling that those of us in this room should find ourselves at odds over this issue. Presumably, we all want the same 

things. We want fewer unplanned pregnancies and we want young 

people who face problems, particularly problems that have to do 

with their health and their future, to receive love and support and 

counsel from responsible adults, preferably their parents. 

If I thought this bill would achieve those goals, I would support 

it, too, but it won’t. It doesn’t resolve the problems with which we 

are faced. It doesn’t even address those problems. This isn’t a bill 

about solutions; it is a bill about punishment. We ought to be looking for new ways to solve our problems, not new ways to punish 

victims and those who care for them. 

Yet, no matter how successful our efforts, there will be minors 

who faced unplanned pregnancies and we will always want them 

to be able to turn to their parents for love and support and guidance. That is, I have to assume, the noble motive behind this bill. 

We are appalled at the thought of any girl having to face and make 

such a decision without the help of her parents, as well we should 

be. 

Nonetheless, many years ago the Episcopal Church passed a resolution opposing any parental consent or notification requirements 

that did not include a provision for non-judicial bypass. In our 

view, any morally-responsible requirement had to allow young 

women to turn for help to some responsible adult other than a parent or judge, to go instead to a grandparent or an aunt or a teacher 

or a neighbor or a counselor or a minister. 

My church encourages the very things this bill would outlaw, and 

I would point out that this resolution was supported by many antichoice bishops and deputies whose concern for the well-being of 

young women outweighed ideological positions. 

Like you, we favor parental involvement. As you know, most 

women do indeed involve their parents. We wish that all could and 

would, but we know that no one can simply legislate healthy communication within families. We know that of those girls who do not 

involve their parents, many fear violence or being thrown out of 

their homes. And statistical and anecdotal evidence demonstrates 

that in far too many American homes, such fears are not unfounded. 

There is no excuse, none, good enough to justify legislation that 

further imperils young people who are already in danger in their 

own homes. And if our compassion for those imperiled young people 

should fail us, there would still be a self-interested reason to fear 

10

and oppose this legislation. It imperils all young women, even those 

in our own happy families. 

Let’s not kid ourselves. Even in the healthiest of families, teens 

sometimes cannot bring themselves to confide in their parents. 

Should they? Sure, but you know as well as I that teenagers will 

from time to time exercise poor judgment. It is a fact of nature and 

there is no law you can pass that will change that, and the penalty 

for poor judgment should not be death. 

I ask you to oppose this bill, oppose it because no matter how 

good the intentions of its authors and its supporters, it is, in essence, punitive and mean-spirited. Oppose it out of compassion for 

those young people who cannot, for reasons of safety, tell a parent, 

but who need and deserve better than to be left alone in their distress. If all else fails, oppose it for purely selfish reasons. Oppose 

it because you don’t want your daughter or granddaughter or niece 

to die just because she couldn’t face her parents and you had outlawed all her other options. 

Thank you. 

[The prepared statement of Rev. Ragsdale appears as a submission for the record.] 

Senator SESSIONS. [presiding] I hope we are not mean-spirited in 

this legislation. Parents love children, too. Sometimes, they come 

home to parents. 

I would just ask you this. The child that you took to obtain an 

abortion—did you provide the upkeep for that child after she got 

back home? 

Rev. RAGSDALE. No. 

Senator SESSIONS. Did you in any way counsel or spend time 

with her? 

Rev. RAGSDALE. Yes. 

Senator SESSIONS. How much? 

Rev. RAGSDALE. Not a lot. 

Senator SESSIONS. Well, that is the only point I am making. Parents do that everyday. That is what they do. 

Rev. RAGSDALE. Unfortunately, the judge was of the opinion that 

her parent didn’t. 

Senator SESSIONS. Well, under all of the Constitutional laws, am 

I not correct that if there is that type of circumstance, a court can 

bypass the parent’s consent? 

Rev. RAGSDALE. I believe you are correct, Senator, but you would 

be in a better position to know that than I. What I would point out 

is that the Episcopal Church, in opposing parental consent requirements that don’t allow for non-judicial bypass, has a serious concern that asking young women who are already under distress to 

navigate the court system imposes a huge burden on them. 

Frankly, I am an old woman who has been around for a—well, 

middle-aged, who has been around for a long time and I would feel 

a little intimidated trying to navigate the court system for any reason, but certainly for dealing with something as personal and intimate as that. We thought it was important that young women have 

support outside of that system. 

I had a guy in my congregation ask me once, would you do this 

for my daughter? I said I wouldn’t have to do this for your daughter. If your daughter came to me, I would be able to say to her, 

11

you can talk to your father; let me go with you and help you do 

that. I know you. But if you were a different person than you are 

and she couldn’t, in safety, talk to you, then, yes, absolutely I 

would help her. That is my responsibility. 

Senator SESSIONS. What if the driver were a 35-year-old man 

who had a habit of having sexual relationships with teenage girls? 

Rev. RAGSDALE. Well, again, Senator, you know the law better 

than I, but I am under the impression that that is already illegal 

and he should probably be prosecuted for that, and also that taking 

her away in an attempt to cover up the evidence of an illegal act 

is probably a separate crime in and of itself, for which he also 

should be prosecuted. 

Senator SESSIONS. Well, that is not necessarily so. It depends on 

the age of consent and the State system. Some are 16, others may 

be lower than that. 

Rev. RAGSDALE. Well, if you could fix that, I would really like to 

have that fixed. 

Senator SESSIONS. Is that situation the kind of circumstance that 

you are dealing with? It seems to me that you have taken the harder cases which the court system has already considered and rendered an opinion on; that if a child has an abusive parent and has 

reason to be concerned about that, they have an option. But, otherwise, we would normally expect parents to do that. 

I don’t think the Episcopal Church takes the view that parental 

notification is bad. It simply said, as I read their position, that they 

believe that there should be a judicial exception. 

Rev. RAGSDALE. No, sir. I actually wrote that position, so I am 

real clear on what it says. 

Senator SESSIONS. What does it say? 

Rev. RAGSDALE. It says it has to allow for non-judicial bypass. 

Senator SESSIONS. A non-judicial bypass? 

Rev. RAGSDALE. A non-judicial bypass, yes, sir. We were very 

clear when we crafted it. As I said, many anti-choice bishops and 

deputies supported me in pushing this through after I had written 

it. Apart from knowing how often the judicial bypass system fails 

young women—and I know you will hear about that in a moment 

and you already are aware of how thoroughly it fails young women 

in many States. Apart from that, we are of the opinion that it is 

an onerous burden and that young women need to be able to turn 

to trusted adults for help. 

Senator SESSIONS. Ms. Farley, thank you for coming. Ms. Lane, 

thank you for coming. Do you have anything you would like to add 

to the comments? 

Ms. FARLEY. Yes, I would. The woman that took Crystal across 

State lines, she wasn’t, you know, the big bad guy. She was the 

mother of the male that raped Crystal and I think the motives 

were pretty obvious there. That woman dropped Crystal back off at 

some other person’s house and left, and we haven’t seen her again, 

except through court. 

I work hard and I have insurance for my children. They are all 

grown now, but I did then. You know, this is a young lady who was 

a young girl. She wasn’t a woman. You say ‘‘woman’’ a lot. She was 

a young girl and she was just scared. I am sure that woman was 

12

scared that her son would go to jail, and he did. Unfortunately, he 

got out and did it again and again. 

But as you say, she wasn’t there, and you weren’t there to see 

the pain Crystal went through all those years and the pain she still 

goes through. But I was there for her. 

Senator SESSIONS. Ms. Farley, how do you feel about the idea 

that somehow parents can’t be trusted to discuss these issues? I am 

sure a child would not want to disappoint their parents. They may 

make a decision not to tell them for that reason. But don’t you 

think in the long run that child is better off if they do come forward and talk to their parents and the parents and the child can 

discuss all the ramifications of the behavior that may have caused 

the pregnancy and all the choices they may be facing? 

Ms. FARLEY. Yes, I do, sir. I mean, family life is difficult; it is 

not perfect. Parents make mistakes, children make mistakes. You 

get together. I would think the church would want to encourage a 

family getting together and solving problems and working together. 

That is life, and when it is interfered with, that is when you have 

the dangerous situations. 

I will tell you Crystal needed care and I had her at the gynecologist down in Williamsport. That abortion clinic would not give 

that physician Crystal’s medical records. Crystal even requested 

the records, and that is very poor medical care. What would have 

happened? Crystal was very sick. Thankfully, I happened to be 

home from work that day and noticed she wasn’t there, and thankfully found out. It is scary. 

Senator SESSIONS. Well, I thank you both so much for coming. 

Reverend Ragsdale, thank you for sharing these issues. This is a 

very human thing. These are very real problems in the lives of 

young people today, and I think it is legitimate for a State to conclude that parents have a right to be involved in minor children’s 

decisions of this kind. I think it is legitimate for this Congress to 

consider whether or not we ought to take legal action that would 

uphold and validate the decision of a State on this question, even 

though another State nearby may not agree. 

Is there anything else that you all would like to share? 

Thank you so much for all your personal stories. 

Our next panel is Professor Harrison, Professor Rubin and Professor Collett. So we have gone from real people to scholars. 

Professor Harrison is professor of law at the University of Virginia. He joined the faculty of UVA in 1993 as an associate professor of law. He graduated from the University of Virginia in 1977 

and from Yale Law School in 1980. He was an associate with Patton, Boggs and Blow in Washington, D.C., and clerked for Hon. 

Robert Bork on the U.S. Court of Appeals for the District of Columbia Circuit. He worked at the Department of Justice from 1983 to 

1993, serving in numerous capacities, including Deputy Assistant 

Attorney General in the Office of Legal Counsel from 1990 to 1993. 

Mr. Harrison, I thank you for a short, succinct statement. I was 

able to read it all. I read most of Mr. Rubin’s, but I didn’t quite 

get to the end of it. 

Professor Rubin is a professor at Georgetown University Law 

Center. He graduated from Harvard Law School, where he served 

as an editor of the Harvard Law Review. After graduating from law 

13

school, Professor Rubin clerked for Judge Collins Seitz on the Third 

Circuit, and Justice David Souter on the U.S. Supreme Court. He 

has spent several years as a practicing lawyer specializing in constitutional litigation. Recently, Professor Rubin served as counsel 

to former Vice President Al Gore before the U.S. Supreme Court in 

the two Florida election cases, Bush v. Palm Beach Canvasing 

Board and Bush v. Gore. Professor Teresa Stanton Collett is a professor at the University 

of St. Thomas School of Law. She graduated with honors from the 

University of Oklahoma School of Law and practiced as a member 

of the Trust and Estate Section of Crowe and Dunleavy in Oklahoma City. She also served on a joint legislative task force to reform Oklahoma’s guardianship laws. The task force’s efforts resulted in greater statutory protections for the elderly and people of 

limited mental capacity in the State. 

She served as a visiting professor at Oklahoma College of Law 

and was then appointed to the faculty at South Texas College of 

Law, in Houston. She served as a visiting faculty member at several other law schools, has published over 40 articles, and is the 

co-author of a law case book on professional responsibility. 

Thank you, all three of you, for being here. Without further ado, 

Professor Harrison, I would be glad to hear your comments on this 

legislation. 

STATEMENT OF JOHN C. HARRISON, PROFESSOR OF LAW, 

UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA 

Mr. HARRISON. Thank you, Senator Sessions. I will try to be as 

brief in person as I was in print. 

Senator SESSIONS. You need not. 

Mr. HARRISON. The Committee has asked me whether I think S. 

851 is constitutional, and I believe it to be. The constitutional question that it presents is fundamentally one of federalism. Although 

the underlying issues involve abortion and the constitutional rights 

that the Supreme Court has found regarding abortion, the issue 

presented here has to do with federalism, and in particular with 

the overlapping and sometimes conflicting jurisdictions of the 

States as part of our Federal Union. 

The first point that I would like to make and that my written 

testimony largely reflects is that it is common for Congress to use 

the commerce power not only for the purpose with which we may 

be mainly familiar—sort of direct regulation or ordinary activities—but in order to adjust conflicting jurisdictional claims within 

the Federal Union, and in particular to adjust conflicting jurisdictional claims among the States. 

The old cases that I talk about in my written testimony having 

to do with the interstate transportation of liquor are examples of 

jurisdictional conflicts created by the coexistence of wet States and 

dry States in a Federal Union in which the dry States were not 

able fully to control access to their territory from liquor. 

Congress’ answer was a regulation of interstate commerce designed to reinforce the lawful jurisdiction of the dry States. And in 

doing that, Congress had to make a choice as to which States fundamentally had the better jurisdictional claim and in that case 

went with the dry States. 

14

What I think is going on here in this legislation is a policy choice 

proposed to be made by Congress having to do with which State 

primarily has the jurisdiction and authority with respect to domestic relations, and choosing the State of residence. 

Other questions that are raised by S. 851 have first to do with 

the issue of whether it is somehow impermissibly extra-territorial 

and somehow authorizes a State to exert its legislation jurisdiction 

outside of its territorial limits. 

Very briefly, the point I would make is that specifically in the 

area of domestic relations—and it happens elsewhere in conflicts of 

law and choice of law, but specifically in the area of domestic relations—it is common for the rule regarding a domestic relationship 

to come not necessarily from the State in which the parties are 

physically present, but from some other State, routinely the State 

of residence; a classic example is the rule with which Congress has 

recently become more familiar, that (within limits, and there are 

limits to it) a marriage celebrated in one State, if valid in that 

State, is valid in another State even if it would not have been valid 

if celebrated in the second State. 

The other question that S. 851 raises has to do with the right 

to travel, with the fact that the Supreme Court has found implicit 

in the Federal Union, an ability by adults largely to choose their 

State of residence and therefore in many ways to choose the legal 

regime that applies to them. I don’t think that S. 851 poses a serious constitutional problem here. 

First, with respect to domestic relations, it is far from clear—and 

this is a difficult and often debated matter—just how far the unilateral act of one party to a domestic relation—for example, the 

unilateral act of one spouse by changing location—can change the 

domestic relations that obtain between the spouses. 

It is not necessary to address that question, which is a difficult 

and complex one, because here we are talking about minors who, 

by hypothesis, do not have even the constitutional right to make 

their own choice regarding abortion, and I think it therefore very 

likely do not have whatever the constitutional right is in the sphere 

of domestic relations to make a choice of place of residence so as 

to control the legal regime that applies to them. So for those reasons, I think that Senate bill 851 is constitutional. 

Thank you, Senator. 

[The prepared statement of Mr. Harrison appears as a submission for the record.] 

Senator SESSIONS. Thank you, Professor Harrison. 

Professor Rubin. 

STATEMENT OF PETER J. RUBIN, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY, WASHINGTON, D.C. 

Mr. RUBIN. Thank you, Senator Sessions. I have been asked by 

the Committee to assess whether S. 851, the Child Custody Protection Act now pending before the Senate, is consistent with the Constitution of the United States. I am honored to have the opportunity to convey my views to the Committee. 

S. 851 would make it a Federal crime to assist a pregnant minor 

to obtain a lawful abortion in a State other than her State of residence and in accord with the less restrictive laws of that State unVerDate 0ct 09 2002 17:18 Sep 27, 2004 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95944.TXT SJUD4 PsN: CMORC
15

less she complies with the more severe restrictions her home State 

imposes for abortions sought by minors within its own territorial 

limits. The statute does not uniformly apply home State laws on 

pregnant minors who obtain out-of-state abortions. It applies only 

where the woman seeks to go from a State with a more restrictive 

regime into a State with a less restrictive one. 

The proposed statute would, if enacted, violate the Constitution 

for three independent reasons. To begin with, it violates basic principles of federalism, principles fundamental to our constitutional 

order. States have the right to enact and enforce their own laws 

governing conduct within their territorial boundaries, and under 

the Privileges and Immunities Clause of Article IV, Section 2, residents of each of the United States have a right to travel to and 

from any State of the Union for purposes that are legal there. 

Neither your home State nor Congress may lock you into the 

legal regime of your home State as you travel across the country. 

Indeed, in the landmark right-to-travel decision Saenz v. Roe, the 

Supreme Court recently reaffirmed this fundamental principle, 

holding that even with explicit Congressional approval, California 

could not carve an exception out from its legal regime to provide 

to those who had recently come into the State only the welfare benefits that they would have been entitled to receive under the laws 

of their former States of residence. And these were welfare laws 

that would operate far less directly and less powerfully than would 

a special criminal law restriction on primary conduct, like the proposal under discussion today. 

Under Article IV, neither Virginia nor Congress could, for example, prohibit residents of Virginia, where casino gambling is illegal, 

from traveling interstate to gamble in a casino in Nevada. Senator 

Ensign, I am sure, knows that indeed the economy of Nevada essentially depends upon this aspect of federalism for its continued 

vitality. And people who like to hunt cannot be prohibited from 

traveling to States where hunting is legal in order to avail themselves of those States’ hunting laws just because such hunting may 

be illegal in their home States. 

The proposed law, though, amounts to a statutory attempt to 

force a most vulnerable class of young women to carry the restrictive laws of their home States strapped to their backs, bearing the 

great weight of those laws like the bars of a prison that follows 

them wherever they go. 

And, of course, if home State legislation or Congressional legislation may saddle the home State citizens with that State’s abortion 

regulation regime, then it may saddle them with their home State’s 

adoption and marriage regimes, as well, and with piece after piece 

of the home State’s legal fabric. There are no constitutional scissors 

that can cut this process short, no principled metric that can supply a stopping point. 

You have heard a terrible, tragic story today that is claimed to 

justify the constitutional departures this bill represents. The States 

and the Congress have power within their respective spheres to 

prohibit and punish sexual predators, those who commit statutory 

rape, those who would coerce a pregnant young woman across 

State lines to obtain an abortion against her will. S. 851, though, 

does none of these things and it rests on a principle that violates 

16

the basic premise upon which our Federal system is constructed. It 

therefore violates the Constitution of the United States. 

Second, because of the cruel and dangerous method S. 851 employs to attempt to deter vulnerable pregnant young women, young 

women who may be too frightened to seek a judicial bypass or too 

terrified of physical abuse to notify a parent or legal guardian who 

may indeed be the cause of the pregnancy, from obtaining lawful 

abortions in States in which they do not reside, the proposed statute also violates the Due Process Clause of the Fifth Amendment. 

Government may not attempt to deter a minor from engaging in 

a particular activity by making it more dangerous. That is the 

teaching of Carey v. Population Services International. The proposed statute does not actually prohibit pregnant adolescents from 

obtaining out-of-state abortions without complying with the parental notification or consent laws of their States of residence. It 

seeks, rather, to deter them from doing so by denying them the assistance of any compassionate or caring adult. 

And it contains no exception where it is a pregnant young woman’s close friend or her aunt or grandmother or a member of the 

clergy who accompanies her across a State line on this frightening 

journey. Indeed, it does not exempt health care providers, including 

doctors, from possible civil or criminal penalties. 

Under the proposed statute, the pregnant young woman is left to 

make this perilous trip on her own and return alone from a medical procedure that may have after-effects, including bleeding or 

disorientation from anesthesia, or to seek an abortion illegally and 

less safely in her own State of residence. Under the Due Process 

Clause of the 14th Amendment, this is not a permissible means of 

achieving even an otherwise legitimate governmental end. 

Finally, the proposed statute violates the undue burden test for 

abortion regulation adopted by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. Under the analytical approach articulated by the Court in that case, the proposed 

statute has the unconstitutional purpose, and would have the unconstitutional effect, of placing a substantial obstacle in the path 

of the pregnant adolescents it affects seeking to exercise their right 

to choose to terminate a pregnancy. 

In addition, the statute as now drafted lacks an exception required under Casey and the Court’s most recent abortion decision. 

Senator SESSIONS. Professor Rubin, if you will wrap up? 

Mr. RUBIN. I am wrapping it up, Senator. 

It lacks an exception for the health of the pregnant woman. 

Thank you. I apologize for my lack of brevity in writing and in 

oral presentation. I look forward to your questions, Senator. 

[The prepared statement of Mr. Rubin appears as a submission 

for the record.] 

Senator SESSIONS. Very fine. 

Professor Collett. 

STATEMENT OF TERESA STANTON COLLETT, PROFESSOR OF 

LAW, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, MINNEAPOLIS, MINNESOTA 

Ms. COLLETT. Mr. Chairman, Senator Ensign, I am delighted to 

have the opportunity to testify today. The testimony I am about to 

17

present does not represent the interests of my institution or any 

other organization. 

There are some fundamental facts that are being ignored by the 

testimony that has been presented by other members of this panel 

and Reverend Ragsdale, and those fundamental facts are these: In 

fact, those States that have enacted parental involvement laws 

number 44. Forty-four out of the 50 States have attempted legislatively to ensure that parents are involved to some degree in the minor’s decision to obtain an abortion. 

Of those 44 States, 8 have been ruled unconstitutional by either 

a State or Federal court because of some sort of infirmity. Of the 

remaining States, ten are ineffective in ensuring parental involvement because they allow some sort of abortion provider bypass or 

some other adult to provide the equivalent of parental consent or 

notification. 

But notwithstanding that, 25 States in this Union have determined that parents should either be notified or give consent prior 

to their minor daughter being provided an abortion. Why is that? 

Because it represents the huge consensus in this country that a 

minor should have parental guidance in the decision on how to deal 

with an unplanned pregnancy. 

And what is really telling is a survey by MTV, that great conservative media outlet. MTV, of their viewers ages 18 through 24, 

reflects that 68 percent agree that parental consent, not even notification—68 percent agree that parental consent should be in place. 

When you do a more general survey, for the past 10 years it has 

held steady that 70 percent or more Americans believe that parental consent or notification should be in effect. This is a broad consensus on an issue that is so divisive as abortion; it is amazing. In 

fact, Senators, this is one of the few places where we have a winwin situation. 

And the United States Supreme Court agrees. They have consistently stated that there are, in fact, reasons that parents should be 

involved in a minor’s decision to obtain an abortion. The restriction 

they have placed on that is that in those few cases where parents 

might not respond reasonably, there must be the opportunity for a 

parental bypass, where it is a parental consent statute. 

Now, how often does judicial bypass occur? Reverend Ragsdale 

and Professor Rubin have suggested that this is an onerous and 

burdensome circumstance, and yet the empirical evidence that we 

have regarding these judicial bypass proceedings suggests quite the 

opposite. 

In fact, a survey done of the Massachusetts proceedings in these 

cases show that those hearings average 12.12 minutes, and, in fact, 

that in those cases almost every bypass petition that was presented 

was granted. In my home State of Minnesota, a similar survey indicated that almost every bypass petition that was presented to the 

courts was granted. 

In the State of Texas, we saw an increase in the number of parents that were notified. At least according to Planned Parenthood’s 

own statistics, prior to the passage of our Parental Notification Act, 

67 percent of all parents were notified. But after our Parental Notification Act, well over 90 percent of all parents now are involved 

in their minor daughter’s attempt to obtain an abortion. 

18

Is this a good and necessary thing? Well, according to a case that 

was just settled down in Texas, a minor who went through a judicial bypass with the assistance of one of these interested bystanders, with the assistance of an attorney that was trained through 

Planned Parenthood, told her lawyer that she was receiving psychiatric assistance and, in fact, was taking psychotropic drugs. 

The lawyer suggested that she not tell the judge, so she didn’t. 

The consequence of the abortion was tremendous psychological disturbance. That is how the parents found out that she had had the 

abortion. So the Department of Health in Texas was sued for failure to check up on whether or not the abortion clinics were adequately complying with the informed consent requirements under 

the State of Texas law. That matter has now been settled and we 

hope to see the State of Texas Department of Health ensuring 

greater compliance with informed consent. 

Parents, according to the United States Supreme Court, are in 

the best position to ensure the medical well-being of their minor 

daughters. And according to Planned Parenthood’s own research, 

well over 80 percent of those parents will agree with their daughter’s decision to obtain an abortion. 

I see I am out of time, Mr. Chairman, so I will stop there. 

[The prepared statement of Ms. Collett appears as a submission 

for the record.] 

Senator SESSIONS. Thank you. Well, three good presentations. 

Professor Rubin, you mentioned traveling in interstate commerce 

to gamble or whatever other example you gave there. I was thinking about how Senator Ensign and his other veterinarian brother, 

Wayne Allard, have a bill to prohibit transportation in interstate 

commerce of fighting cocks for the purpose of cock-fighting in a 

State that allows it from States that don’t allow it. 

How would you opine on that one? 

Mr. RUBIN. I think that is in the same category as what Professor Harrison described about transportation of liquor in interstate commerce. I completely agree that Congress’ primary authority derives from the right to regulate interstate commerce and to 

regulate the movement of goods in interstate commerce. 

Human beings are not goods being transported in interstate commerce. They are not liquor, they are not fighting cocks. They are 

individuals with the right in our Federal system to travel from 

State to State that has been recognized by the Supreme Court and 

to take advantage of the laws in the States into which they travel. 

So Article IV, Section 2, of the Constitution reads, ‘‘The citizens 

of each State shall be entitled to all privileges and immunities of 

citizens in the several States.’’ This has been held to mean that 

they are entitled to obtain—in Doe v. Bolton, in 1973, the Court 

held they are entitled to obtain medical services, including abortion 

services, on the same terms as people in the State of destination. 

So that law is, I think, completely constitutional. 

Senator SESSIONS. What about the Mann Act, the interstate 

transportation for the purpose of prostitution? 

Mr. RUBIN. The Mann Act is different from this statute. I believe 

that this proposed statute, Senator, is actually unique in that it attempts to project the rule of the person’s home State into another 

State. This doesn’t create a Federal uniform rule that says no one 

19

moving in interstate commerce may have an abortion unless they 

comply with some Federal parental consent law. That would be a 

different statute from this. That is a Federal statute which says 

moving in interstate commerce for purposes of prostitution is unlawful. 

Senator ENSIGN. Professor Rubin, would you just let me follow 

that up? 

Mr. RUBIN. Senator, yes, please. 

Senator ENSIGN. In the State of Nevada, in several counties, 

prostitution is legal. Would a law be constitutional that says that 

you cannot, under the Mann Act, have an adult bring a 12-yearold girl to the State of Nevada if it was legal in the State of Nevada. 

Mr. RUBIN. Is it legal for a 12-year-old girl to be a prostitute in 

the— 

Senator ENSIGN. No. I am saying if it was, you could say that in 

any State. That is absolutely allowed. 

Mr. RUBIN. I am not sure— 

Senator ENSIGN. Sure, it is. 

Mr. RUBIN. I think there might be some constitutional difficulty 

with a law that purported to legalize prostitution by a 12-year-old. 

Senator ENSIGN. In a 15-year-old. Whatever it is, I am saying if 

it was legal for a teenager, would the Mann Act be constitutional 

in that case? 

Mr. RUBIN. The Mann Act sets a uniform national standard and 

that is a different case from this case, which purports to have the 

law that applied depend upon the State of residence of the person 

engaged in the act. 

If the Mann Act were rewritten so that it only applied to people 

whose home States didn’t permit the act that they were going to 

do, so that the question would be what is your home State’s law, 

then that would be this. But the Mann Act creates a uniform national rule and could create a uniform national rule such as you 

are describing. 

Senator SESSIONS. Professor Harrison, do you agree that commerce does not include people, and how would you analyze the argument that Professor Rubin has made? And then I will ask Professor Collett to respond, also. 

Mr. HARRISON. For one person to transport another person across 

State lines is, per the Mann Act, interstate commerce. And as you 

said in your opening statement, that has routinely been upheld. 

Many of Congress’ regulation of interstate commerce are specifically tied to interstate movement, including interstate movement 

by the person committing the crime, although that is not how S. 

851 operates. 

So although sometimes the interstate movement of persons is different from the interstate movement of goods for constitutional 

purposes, of course, there is no bright line principle that Congress 

can’t regulate the interstate movement of persons, and in particular can’t regulate one person’s decision to transport somebody 

else interstate. Again, that is the Mann Act. 

As to the question whether the Mann Act is different because it 

adopts a uniform national policy, a uniform national rule, rather 

than tying the rule to the rule of a particular State, to get back 

20

to the interstate liquor cases from the early part of the 20th century, there was, in fact, a controversy on the Court and among 

commentators—and indeed President Taft had a strong view on 

this, but it was not ultimately the view that prevailed—whether 

Congress, in order to legislate in that area, had to do so uniformly. 

And the Court’s answer was that it did not, and that the Wilson 

Act, which tied the legality of the interstate transportation of liquor to the substantive law of the State into which it was being 

transported, was constitutional; that was not an impermissible delegation of Congressional power to the State, which was said to be 

the difficulty. 

So using the law of the State as the trigger for the substantive 

Federal rule, which is what S. 851 does, is also what the Wilson 

Act did, and the Court upheld the Wilson Act. One of the arguments was, no, you can’t do that, you can’t tie it to the State rule; 

it has to be uniform. A majority of the Court rejected that. 

Indeed, the principle of the Wilson Act is now in Section 2 of the 

21st Amendment, the amendment that repealed the 18th Amendment that established nationwide prohibition. Section 2 of the 21st 

Amendment forbids—and it is almost the only section of the Constitution that actually forbids private conduct—the importation 

into a State of liquor in violation of the laws of the State; that is 

to say, it ties the Federal rule to the choice that the State has 

made. 

So not only does the Constitution permit that, in the one area 

in which it actually has its own rule about this, the Constitution 

does that. So that phenomenon is now a familiar one in the law. 

I think the harder question, primarily the harder policy question, 

is whether the State with the primary claim to regulate is the 

State in which the minor is physically located at the time of the 

abortion or the State of residence, although as I indicated, it is routine for the law of domestic relations to tie domestic rights and obligations, including parental rights and obligations, to the State of 

residence rather than the State in which someone is temporarily located. 

Senator SESSIONS. Professor Collett. 

Ms. COLLETT. In fact, Congress has had to intervene where, for 

example, in a divorce situation parents have tried to flee the State 

of residence to avoid child support obligations, tried to flee the 

State of residence to try to avoid custodial orders, and they have 

created uniform Federal laws. So that is not an unusual or unprecedented move and there is no question about the enforceability of 

that. 

Senator SESSIONS. This bill does not prohibit travel. It prohibits 

travel for the purpose, in essence, of evading a parental notification 

law of the State, and it prohibits a third party from causing this 

to occur. It does not even prohibit the minor from voluntarily, on 

their own, going out of State. 

How does that impact it, Mr. Harrison? 

Mr. HARRISON. Again, that makes it much like the Mann Act. 

Senator SESSIONS. Professor Rubin. 

Mr. RUBIN. Well, I guess there are two points. As to the latter 

point that the young woman can still go alone, as I have described, 

I think that this is an independent reason why it is unconstituVerDate 0ct 09 2002 17:18 Sep 27, 2004 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95944.TXT SJUD4 PsN: CMORC
21

tional. To require a young woman in extremis to find cab fare or 

take multiple buses, as Reverend Ragsdale described in her testimony—I think you were out of the room during that part of her 

description— 

Senator SESSIONS. I remember reading that. 

Mr. RUBIN. —independently violates the Due Process Clause. 

Senator SESSIONS. I am not a court, but I am not too into that 

argument. I am not a judge. It is okay for the record, but what 

about this interstate travel and the argument you made originally? 

Mr. RUBIN. If you look at a case like Saenz v. Roe, the court is 

only applying a law to people who have already traveled interstate. 

The fact that they are unable to take advantage of the benefits of 

the law of the destination State is held as a matter of law to have 

a deterrent effect on the right of travel and therefore to infringe 

it. And the same is true here. Whether it is an assistance of a person or the person is still allowed to travel, the avowed purpose of 

this law is to keep young women from doing this. 

And I would also just say you used the word ‘‘evasion.’’ It isn’t 

an evasion of their home State’s laws. It is an avoidance of the 

legal regime of one State by going into another State. That is in 

my written testimony as well. 

Senator SESSIONS. Professor Collett. 

Ms. COLLETT. But the anecdotal story of Reverend Ragsdale is 

not borne out by, in fact, the study that was done by the Alan 

Gutmacher Institute, which is, of course, Planned Parenthood’s research arm. A survey of 1,500 unmarried minors having abortions 

revealed that when neither parent knows of the abortion, it is the 

boyfriend who accompanies them. Eighty-nine percent said it was 

the boyfriend who was involved in making the decision to have the 

abortion, and 93 percent if the minor was 15 or younger. 

Senator SESSIONS. Those are pretty dramatic statistics. You said 

that was Planned Parenthood’s statistics? 

Ms. COLLETT. Yes. It is a study done by Stanley Henshaw, who 

is their demographer, and it is published at 24 Family Planning 

Perspectives 196, in 1992. 

Senator SESSIONS. Well, I think that adds a lot of credibility to 

the concern most people have about parental consent. Intuitively, 

that is the issue that has driven legislatures, at least 40-some-odd, 

to pass some sort of law dealing with this. 

Professor Harrison, if the underlying State law for some reason 

over-reaches and places too great a burden on the right to choose 

provided for in Roe and Casey and other cases, is that a defense 

that a good lawyer can make to this matter? 

Mr. HARRISON. Absolutely. Congress can reinforce only State 

laws that are themselves valid, absolutely. 

Senator SESSIONS. Would you agree with that, Professor Rubin? 

In other words, if there is some State out there that has a law that 

has gone too far and is not valid under Supreme Court interpretation of the Constitution, could they raise that in defense to a 

charge like this? 

Mr. RUBIN. I don’t know the answer to that question under the 

text of your statute. My federalism objection, which I gather is the 

one that interests you most, assumes the validity of the State laws. 

22

They simply can’t be projected into the other State, carried on the 

back of the State resident. 

Senator SESSIONS. Professor Collett, do you think that would be 

a matter that could be asserted? I mean, we would not want to 

draft the statute in such a way that it would prohibit a person raising this defense, assuming they could be able to raise it. 

Ms. COLLETT. I agree with Professor Harrison. The eight State 

statutes that have been declared constitutionally infirm are not 

resurrected by this statute. 

Senator SESSIONS. I don’t claim to be a constitutional scholar, 

but I have prosecuted lots of cases and I have seen lots of statutes 

pass here. 

Professor Rubin, you remember the big case of the gun on the 

schoolyard that the Supreme Court struck down for lack of interstate commerce nexus. What was your view on that? Have you expressed it? You don’t have to if you haven’t expressed it. 

Mr. RUBIN. I haven’t expressed a view on the Lopez case. I say 

in my testimony that I don’t think that an objection to this on 

Lopez grounds is well taken; that is, I think that if there weren’t 

this federalism problem, the nexus to interstate commerce that you 

have built into the bill is adequate under the Court’s commerce 

power as it has been construed under Lopez and following cases. 

Senator SESSIONS. In recent years, Congress has passed laws 

that do not have a nexus, and Lopez, in my view, was one of them. 

All of the old statutes—the Mann Act, interstate transportation of 

stolen property, motor vehicles, kidnapping—are directly tied to 

interstate commerce. This bill is directly tied to interstate commerce. 

Mr. RUBIN. But it does have, Senator—excuse me. 

Senator SESSIONS. So am I curious about your view on that. 

Mr. RUBIN. It does, though, have this, I think, unique structure 

of saying that the law that is applicable to an individual in a State 

is the law of his or her home State, her State of residence; that you 

can’t shake that however far you go. And that is different from, I 

believe, all other Federal statutes. 

It was the structure of—and I mean no comparison in terms of 

gravity—it was the structure of the fugitive slave laws under the 

specific authorization of the fugitive slave clause which said that—

and, in fact, it is interesting because these are all in Article IV. 

Full faith and credit has to be given to judgments of different 

States. That is Professor Collett’s example of a divorce or whatever. 

That is a judgment of a State. 

Section 2: the citizens of each State are entitled to privileges and 

immunities of citizens in the several States. But then down below, 

two exceptions; I guess they are exceptions. If you commit a crime 

in one State, the other State has to extradite you. And no person 

held to service or labor in one State under the laws thereof, escaping into another, in consequence of any law or regulation therein, 

shall be discharged from such service or labor. 

This is the only example I know of in American history where 

the law of a destination State was held invalid and where someone 

was bound by the law of the State that they had departed from. 

It is a highly unusual structure of law and it doesn’t support federalism. Federalism is different States with different laws. It really 

23

cuts against the State’s right, the destination State’s right to have 

its own laws. 

Senator SESSIONS. Well, I am not sure I agree with that because 

the State’s lawful exercise of support of parental rights is undermined. 

Mr. RUBIN. Well, the destination State has made a determination. 

Senator SESSIONS. I know, but that has little or no nexus to the 

child. 

Let me ask this of the three of you. It seems to me the act of 

transporting this minor child across State lines is what is prohibited. That essentially commences at least in the State where the 

prohibition exists. Would that not give it constitutional support? 

Mr. HARRISON. That is true. I don’t think it needs that, Senator, 

and I want to say something about the point of the conflicting jurisdictions of the States because that, I think, is the trickiest question here. 

Senator Ensign isn’t here anymore, but I want to talk about 

something else involving Nevada, which is the Nevada quickie divorce, another problem from the conflict of laws and the constitutional law of the conflict of laws from earlier in the 20th century. 

The point I want to make is that Nevada made possible the socalled quickie divorce by having a short period of residence; that 

is to say by permitting one party to a marriage to obtain residence 

in Nevada quickly and thereby give Nevada the jurisdiction to decree a divorce, although as it turned out not necessarily the jurisdiction to control the property, the other part of the domestic relationship, in other States. 

The point I want to make is that even to get the jurisdiction to 

do that, to operate, as they said in those days, on the marital thing, 

Nevada had to become the State of residence. The rule of conflict 

of laws at the time—and I think it is still the same, it certainly 

was then—was that just passing through a State, just being physically present in a State, did not give that State, the State you 

were physically in, if you were a member of a domestic relationship, the right to control the rights and responsibilities of that domestic relationship, and in particular to grant the divorce. 

In order to obtain the divorce, it was necessary to become resident in the State, even if only for a relatively short period of time. 

So specifically in the context of domestic relations, something that 

might look extra-territorial, where the law of the State of residence 

continues to control the domestic relationship—here, the parentchild relationship—actually is not unusual, and the law of divorce 

is an example. 

Senator SESSIONS. All right, maybe we have covered that. I think 

that is really interesting. Well, I thank all of you for your very insightful comments. This deals with an issue that I think is important. I have no doubt of the public policy validity of it. I feel very 

strongly about that. 

I do not feel like there has been any oppression of a minor child 

to take care that they consult their parent before they undertake 

such a serious action as an abortion. So I feel good about that. I 

do want to make sure that if we have any errors in drafting that 

could impact the Constitution, I would be prepared to consider 

24

those. Frankly, I remain pretty convinced as a former prosecutor 

that if somebody takes somebody out of a State, across a State line, 

they have acted in violation of the State authority and that this 

could be a Federal offense. 

I want to ask you one thing I didn’t quite get, Professor Harrison. On the liquor laws, I don’t quite understand. What did it exactly prohibit? 

Mr. HARRISON. The Wilson Act operates like Section 2 of the 21st 

Amendment now operates to forbid the importation into a State of 

liquor in violation of the laws of the State. So it tied the Federal 

rule to the State rule. It didn’t say no interstate transportation of 

liquor. It said no interstate transportation of liquor to a dry State, 

basically, which is the rule now constitutionalized in Section 2 of 

the 21st Amendment. It was a matter of some controversy then, 

but the court sustained a Federal statute that didn’t impose a uniform national rule, didn’t say no interstate transportation of liquor, 

but rather said whether the liquor can be transported into a State 

depends on the law of the State. The court approved that in the 

Wilson Act cases. 

Senator SESSIONS. Well, very good. 

Senator Ensign’s entire statement will be made a part of the 

record, as will Senator Hatch’s, and the record will be open for 7 

days. I note that my colleagues from the other side of the aisle had 

submitted some names for witnesses, but I am sorry that they 

didn’t come to participate in this. I think it is an important social 

issue in America and I think the Congress of the United States has 

every right to act constitutionally, if it is able, to respond to the 

public interest. 

I thank all of you for your testimony. It has been a worthwhile 

hearing. If there is nothing else, we are adjourned. 

[Whereupon, at 4:36 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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