FROM: ACLU Washington National Office

RE: The Teen Endangerment Act (S. 8/S. 396/S. 403)

The American Civil Liberties Union opposes the Teen Endangerment Act (S. 8/S. 396/S. 403), called the “Child Custody Protection Act” by its sponsors. The bill would make it a federal crime for a person, other than a parent -- including a grandmother, aunt, sibling, or clergy member -- to help a teen cross certain state lines for an abortion unless the teen had already fulfilled the requirements of her home state’s law restricting teens’ abortions. It would deny teenagers facing unintended pregnancies the assistance of trusted adults, endanger their health, and violate their constitutional rights.

(The current version of the House bill, H.R. 748, contains these same provisions, but also imposes a mandatory parental notification requirement on teenagers who need abortion services in a state where they do not reside. It also forces doctors, under the threat of federal criminal prosecution, to comply with an onerous legal scheme mandating that an out-of-state teen’s parents be notified of her decision to have an abortion.[1])

• This legislation will not create good family communication where it does not already exist.

Even in the absence of any legal requirement, mostteens who are pregnant and seeking an abortion involve a parent in their decision.[2] The younger the teenager, the more likely her parents are to know about her decision: ninety percent of adolescents fourteen or younger report that at least one of their parents knew of their decision.[3] For thoseteens who do not tell their parents, many valid reasons compel them not to do so.[4] For instance, one third ofteenagers do not involve a parent because they fear family violence (in many cases because it has already occurred), or are afraid of being forced to leave home.[5] Long-term studies of abusive and dysfunctional families reveal that the incidence of violence escalates when a wife or teenage daughter becomes pregnant.[6] Forcing ateen to notify her abusive parent of a pregnancy can have dangerous, and even fatal, consequences for her and for other family members. In Idaho, a thirteen-year-old sixth-grade student named Spring Adams was shot to death by her father after he learned she planned to end a pregnancy he had caused.[7]

When ateenager determines that she cannot tell a parent she is pregnant, a bill like this will not make her change her mind. The same percentage of teens informs their parents about their intent to have an abortion in states with and without laws restricting teens’ access to abortion.[8] This legislation will not create healthy family communication where it does not already exist.

• For many young women, a court waiver is not a real alternative.

For many teenagers living under laws restricting their access to abortion, the prospect of going to court for a waiver of this requirement is daunting or futile. Some teenagers live in regions where the local judges simply never grant waivers. For example, the director of an Indianapolis women’s clinic told the New York Times in 1992 that she was not aware of any teenager who had been granted a judicial bypass in that city in the prior six years.[9] Otherteens have reason to fear being recognized in local courthouses. Still others simply cannot face revealing intimate details of their lives to a series of strangers in a formal, legal process. As the Supreme Court has noted, “The court experience produce[s] fear, tension, anxiety, and shame among minors.”[10]

• This legislation will isolatethe most vulnerable teens.

Many teenagers who live in states that restrict teens’ access to abortion cannot satisfy their home state’s law, either because they cannot tell a parent about a pregnancy or because the courts are unprepared or unwilling to consider a teen’s request for a waiver. In addition, some teenagers must travel out of state to obtain an abortion because the closest abortion facility is located in a neighboring state.

The overwhelming majority of teenagers who obtain abortions involve an adult (a parent, other family member, counselor, clergy member, teacher, or adult friend) in their decision[11] and are accompanied by someone to the health-care facility.[12] This legislation, however, would discourageteenagers who are already isolated and frightened from turning to someone they trust. Knowing that anyone who helps them obtain an out-of-state abortion would risk arrest and imprisonment, manyteens would be forced by this legislation to travel alone across state lines. Clearly, it is in the best interests ofteens for caring, responsible adults to accompany them to an abortion provider and to escort them home after the surgery.

• By closing outlets for teenagers facing an unwanted pregnancy, this bill would lead some to dangerous and desperate acts.

This legislation could push those teens who cannot tell a parent about a pregnancy to drastic acts that risk their health and well-being. A teenager facing an unwanted pregnancy is already in crisis. If she is unable or unwilling to consult her parents, her desperation is deepened by her isolation. Teenagers in these circumstances sometimes resort to self-induced abortion or illegal abortion as a way out. These efforts all too often have tragic results. For example, Becky Bell, an Indiana teenager, died from an illegal abortion because she couldn’t bear to tell her parents about her pregnancy and thus could not comply with Indiana’s teen abortion law.[13]

Out-of-state travel, in the company of a trusted companion, for a legal abortion, has provided many such teenagers a difficult but necessary outlet in a crisis. This bill would close that outlet, leading increasing numbers ofpregnant teenagersto resort to the kinds of alternatives that all too often end with serious physical harm or death.

This bill would impose federal criminal penalties on anyone (except a parent) who helps a teen across certain state lines to obtain an abortion if she has not first complied with her home state’s teen abortion law. The bill provides no exception for cases in which a teenager's health would be harmed if medical care were delayed in order for her to comply with her home state’s abortion statute. The following are some examples of potential prosecutions under the bill:

• Emergency medical personnel -- both driver and technician -- could be prosecuted for transporting a teen across some state lines to the nearest abortion provider, even if an emergency abortion were necessary to save theteenfrom serious physical harm;

• A grandmother who takes care of her granddaughter every day could be prosecuted for taking her granddaughter to another state for an abortion, even if she did not know about this federal law or was unaware of her home state’s teen abortion law;

• An adult older sister could not help her teenage sister to obtain an out-of-state abortion even if both sisters were regularly subject to physical abuse by their parents and even if no local court would ever grant a petition for a court waiver.

As these examples illustrate, this legislation would criminalize caring, responsible behavior on the part of adults concerned with a teenager's well-being. It would deter trustworthy adults and professionals from helping ateen to obtain an out-of-state abortion no matter what the circumstances. It thus would create a barrier to safe, timely medical care putting teenagers at risk.

• This legislation raises serious constitutional concerns.

In addition to its damaging effects onteenagers' health and welfare, this bill violates both the letter and spirit of the Constitution in at least three respects.

o It violates constitutional principles of federalism.

First, this legislation conflicts with core constitutional principles of federalism -- principles recently reaffirmed by the Supreme Court in its landmark ruling Saenz v. Roe.[14] The Constitution protects the right of every individual to travel freely from state to state and, when visiting another state, not to be treated as a foreigner. As the Supreme Court held in Saenz, “[A] citizen of one state who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the ‘Privileges and Immunities of Citizens in the several States’ that he visits.”[15] The Supreme Court has previously applied this principle in the context of restrictive abortion laws. In Doe v. Bolton, the Court held that, because the Privileges and Immunities Clause “protect[s] persons who enter [other states] seeking the medical services that are available there,” a state must make abortions available to visitors on the same legal terms under which it makes them available to residents.[16] In violation of these essential principles of federalism, this bill saddlesa teenagerwith the laws of her home state no matter where she travels in the nation.

The Constitution also protects the right of each state to enforce its own laws within its territorial boundaries. Yet, this legislation supplants the laws of the majority of states because they have either no teen abortion law in effect, or have teen abortion laws that do not conform to the definition set forth in the bill. In these states, this bill would impose criminal penalties on visitors that residents do not face under their own state’s laws. The federal bill thus would discriminate against teenagers within the same state on the basis of their state of origin and deprive teens, and those assisting them, of their right to travel to engage in conduct legal in another state.[17]

That this bill conflicts with the fundamental nature of our federal scheme should concern anyone who respects the integrity of the American constitutional system.

o It subjects teens to government-mandated harm.

Second, this legislation violates teenagers’ due process rights by subjecting them to government-mandated harm. The Constitution prohibits the government from attempting to deter a constitutionally protected activity by increasing the danger of engaging in that activity. Thus, in Carey v. Population Services International, the Supreme Court held that a state may not restrict minors’ access to contraceptives in order to deter minors’ sexual activity “by increasing the hazards attendant on it.”[18] By deprivingteenagers of the assistance of others when they cross certain state lines to obtain an abortion, this legislation exposes them to just such heightened peril.

Teens who must leave their home state to obtain an abortion face far greater dangers if they travel alone than if they make the trip in the company of someone they trust. Some abortions involve surgical procedures that may not permit ateen to drive home, often over long distances, by herself. This legislation bans virtually all assistance, including that of theteenager's grandparents, aunts, uncles, sisters, brothers, cousins, and religious counselors. It undermines the government’s asserted interest in protecting teens’ well-being to criminalize this crucial assistance. The Supreme Court has held that a statute that undermines the government’s asserted justification for it is constitutionally deficient. Thus, in Hodgson, the Court held that a two-parent notice requirement without a court waiver was unconstitutional where it “disserv[ed] the state interest in protecting . . . the minor” because it “proved positively harmful to the minor and her family.”[19] Because this bill subjects teenagers to increased danger by banning assisted travel while leaving them free to travel on their own, it is irrational and unconstitutional.

o It lacks a health exception and contains an inadequate life exception.

Third, this bill lacks a constitutionally required health exception and contains an inadequate life exception. The Supreme Court has held that any restriction on abortion, including laws restricting teenagers’ access to abortion, must contain an exception to protect both the health and life of the woman. In Planned Parenthood v. Casey, the Supreme Court held that all abortion regulations must contain a valid medical emergency exception, “for the essential holding of Roe forbids a state from interfering with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.”[20] The Supreme Court recently reaffirmed this holding in Stenberg v. Carhart, in which it held that “at a minimum” an abortion restriction must contain an exception to protect a woman’s health.[21] Because this legislation contains no health exception whatsoever and an impermissibly narrow life exception, it is unconstitutional.

* * * *

Because the Teen Endangerment Act (S. 8/S. 396/S. 403) would both isolate vulnerableteenagers and violate their constitutional rights, the ACLU vigorously opposes its passage.

Endnotes

[1] See ACLU Interested Persons Memo, The Teen Endangerment Act (H.R. 748), available at wwww.aclu.org.
[2] Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors’ Abortion Decisions, 24 Family Planning Perspectives 196, 196 (Sept./Oct. 1992).
[3] Id. at 200.
[4] Id. at 202-03.
[5] Id. at 207.
[6] Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 82-86 (1993).
[7] Ensunsa, Adams Charged With Murder, Idaho Statesman, Aug. 23, 1989.
[8] Robert W. Blum, Michael D. Resnick & Trisha Stark, Factors Associated with the Use of Court Bypass by Minors to Obtain Abortions, 22 Family Planning Perspectives 158, 160 (July/Aug. 1990).
[9] Tamar Lewin, Parental Consent to Abortion: How Enforcement Can Vary, N.Y. Times, May 28, 1992, at A1; see also Hodgson v. Minnesota, 497 U.S. 417, 440 (1990) (noting that, in Minnesota, “a number of counties are served by judges who are unwilling to hear bypass petitions”).
[10] Hodgson, 497 U.S. at 441.
[11] Henshaw & Kost, supra note 1, at 207.
[12] Id. (ninety-three percent of minors who did not involve a parent in their abortion decision were nonetheless accompanied by someone to the abortion facility).
[13] Rochelle Sharpe, Abortion Law: Fatal Effect?, Gannett News Service, Nov. 27, 1989; CBS, 60 Minutes, Feb. 24, 1991.
[14] 526 U.S. 489 (1999)
[15] 526 U.S. at 501.
[16] 410 U.S. 179, 200 (1973); see also Saenz, 526 U.S. at 502 (Privileges and Immunities Clause “provides important protections for non-residents who enter a State … to procure medical services ….”).
[17] Shapiro v. Thompson, 394 U.S. 618, 629 (1969).
[18] 431 U.S. 678, 694 (1977) (plurality opinion).
[19] 497 U.S. at 450.
[20] 505 U.S. 833, 880 (1992).
[21] 120 S. Ct. 2597, 2609 (2000).