Child Custody Protection Bill

July 8, 1998

I wholeheartedly support the goal of fostering closer familial relationships and the notion of encouraging parental involvement in a child's decision whether to have an abortion. I believe, however, that States should continue to maintain their historically dominant role in developing and implementing policies that affect family matters, such as marriage, divorce, child custody and policies on parental involvement in minors' abortion decisions. That is the nature of our federal system, in which the States may, within the common bounds of our Constitution, resolve issues consistent with the particular mores or practices of the individual State.

In my view, the "Child Custody Protection Act" does not promote the goal of healthy family relationships and, in addition, significantly undermines important federalism principles. I will, therefore, oppose this bill.

The consequence of this bill would be to federalize the reach of certain States' parental consent or notification laws in ways that undercut policies in place in many other States in this country, including my own State of Vermont. I appreciate that this bill directly creates no new parental consent or notification requirements at the federal level. Instead, the bill would apply federal agency resources to enforce one State's laws in connection with actions taken in other States. Moreover, it would create a federal crime as a mechanism for such federal intervention.

This is extraordinary. It will have the effect of extending the reach of one State's parental involvement policy across its borders into other States, which may well have considered and rejected such a policy. It will have the effect of extending one State's parental notification laws against its residents wherever they travel throughout the nation. That is not even how these statutes were drafted: They do not say that they hinge on residency but provide restrictions on abortions to be performed on minors within the State.

Make no mistake, the effect of this bill will be to impose the parental consent policies of some States on other States. For example, Vermont has no parental consent or notification law, though a neighboring State Massachusetts does. In the early 1980's, press reports indicated that a 2 percent increase in abortions in Vermont were attributable to minors from Massachusetts coming across the border to avoid telling their parents under that State's parental consent law.

If this bill becomes law, Vermont health care providers may be put in the position of enforcing Massachusetts parental consent laws before they perform any abortion procedures on minors from Massachusetts; otherwise they run the risk of criminal or civil liability. In other words, when confronted with a pregnant minor who may be from Massachusetts, Vermonters may not be able to perform procedures that are legal in Vermont and protected by the United States Constitution and, instead, would be forced to import and enforce another State's law.

Since it is not always easy to tell where a minor's "home" State is, I fear that Vermont health care providers may end up bearing the burden, in terms of time, cost and resources, of checking on the residency of every minor who comes to them for abortion services to ensure that there are no Massachusetts' or other outofstate children among them who have not complied with parental consent laws. This is not the policy that Vermont has chosen for the minors in our State, and I do not want to see the laws and policies of Massachusetts or any other State forced on Vermonters.

Just because some in Congress may prefer the policies of one State over those in Vermont, does not mean we should give those policies federal enforcement authority across the nation. A dangerous precedent is being set here.

We should think about how this policy might impact additional settings. For example, Vermont allows the carrying of concealed weapons without a permit, while Massachusetts' law bars that practice. While Vermonters may support this idea, I do not think Massachusetts would appreciate federal intervention that would allow Vermonters to enjoy the privilege of carrying their concealed weapons into Massachusetts. When Vermonters travel to neighboring States and across the nation, we understand that we must conform our behavior to the laws of the States we visit. When residents of each State may carry with them only the laws of their own State, they may be advantaged or disadvantages but one thing is clear: We will have turned our federal system on its ear.

Under the bill, federal law enforcement agencies and federal courts would be obligated to enforce each State's parental consent laws against its residents wherever those residents may travel in the United States, even if the State does not need or want Federal government intervention. Ironically, even if a State does not enforce its own parental consent or notification lawbecause it has been enjoined or found unconstitutional this bill would still make it a federal crime to help a minor cross State lines for an abortion without complying with that unenforced or unenforceable State law.

Practically speaking, if this bill becomes law, federal agents will be put in the position of "State Border Patrols" to ensure that any pregnant minor crossing State lines is not doing so to have an abortion without complying with her home State's parental consent law. The Department of Justice has described in a lengthy letter to the House Judiciary Committee the myriad of practical enforcement problems which this bill would generate that "would involve significant, and largely unnecessary, outlays of federal resources."

In addition, the bill would sweep into its criminal and civil liability reach family members, including grandparents or aunts and uncles, who respond to a cry for help from a young relative by helping her travel across State lines to get an abortion, without telling her parents as required by the laws of her home State. Even the sponsors of this bill have acknowledged the overbroad reach of the criminal liability provision and have taken steps, with a substitute amendment, to exclude parents, but only parents, from the threat of criminal prosecution.

The purported goal of this bill, to foster closer familial relationships, will not be served by threatening to throw into jail any grandmother or aunt or sibling who helps a young relative travel outofState to obtain an abortion without telling her parents, as required by her home State law. The real result of this bill will be to discourage young women from turning to a trusted adult for advice and assistance, and to force them into the hands of strangers or into isolation. In fact, a 1996 report by the American Academy of Pediatrics, cites surveys showing that pregnant minors who do not involve a parent in their decision to have an abortion, often involve other responsible adults, including other relatives. In one survey, 91 percent of the young pregnant women interviewed consulted either a parent or "parent surrogate" who was often a grandmother, aunt or other relative with whom they lived, even if that adult was not the legal guardian.

Threatening an FBI investigation and a criminal prosecution of any loving family member who helps a young pregnant relative in distress to go out of state to obtain an abortion, would be a shortsighted and drastic mistake.

I also fear that the bill may have the unintended consequence of encouraging young women in trouble to abandon their family, friends and homes. If they are willing to travel across State lines to obtain an abortion, will this bill effectively force them to move their domicile across State lines to avoid engendering criminal and civil liability? If becoming a resident of another State will eviscerate the hold of a home State's restrictive parental consent law, moving may be the only choice that passage of this bill may leave to them. And, what of those young woman who intend to move or those who tell others that they intend to move, does that defeat the claims the bill is intended to create to deter abortions?

Finally, constitutional scholars who have examined this bill in its entirety have concluded unequivocally that it is unconstitutional on several separate grounds. These include Harvard University Law School Professor Laurence Tribe, whose views were cited as authority so extensively earlier this week during discussion of the proposed constitutional amendment on victims' rights. I am particularly struck by Professor Tribe's finding that the bill "violates the basic premises upon which our federal system is constructed." Professor Tribe states that, "the Constitution protects the right of each citizen of the United States to travel freely from state to state for the very purpose of taking advantage of the laws in those states that he or she prefers."

No law and certainly not this bill will force a young pregnant woman to involve her parents in her abortion decision if she is determined to keep that fact secret from her parents. Indeed, according to the American Academy of Pediatrics, the percentages of minors who inform parents about their intent to have abortions are essentially the same in States with and without notification laws. Yet, while doing nothing to achieve the goal of protecting parental rights to be involved in the actions of their minor children, the bill would do damage to important federalism and constitutional principles, and isolate young pregnant women, force them to run away from home or drive them into the hands of strangers at a time of crisis.