S. 661/H.R. 1218 Threatens the Well-Being of Young Women
February 25, 2000
The American Civil Liberties Union opposes S. 661/H.R. 1218, the Teen Endangerment Act or what its sponsors call the "Child Custody Protection Act." The bill would make it a federal crime for a person, other than a parent, to transport a minor across state lines for an abortion unless the minor had already fulfilled the requirements of her home state's parental involvement law. S. 661/H.R. 1218 would deny teenagers facing unintended pregnancies the assistance of trusted adults, endanger their health, and violate their constitutional rights.
This legislation will not increase parental involvement in the abortion decisions of young women.
Even in the absence of any legal requirement, most young women who are pregnant and seeking an abortion voluntarily involve a parent in their decision. 1 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. 2 For those young women who choose not to involve their parents, many valid reasons compel them not to do so. 3 For instance, one third of teenagers who do not tell their parents about a pregnancy have already been the victims of family violence -- physical, emotional, and sexual abuse -- and fear it will recur. 4 Long-term studies of abusive and dysfunctional families reveal that the incidence of violence escalates when a wife or teenage daughter becomes pregnant. 5 Forcing a young woman 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 himself had caused. 6
When a young woman determines that she cannot tell a parent she is pregnant, a bill like S. 661/H.R. 1218 will not make her change her mind. The same percentage of minors inform their parents about their intent to have an abortion in states with and without parental involvement laws. 7 This legislation will not create healthy family communication where it does not already exist.
For many young women, the judicial bypass is not a real alternative.
For many teenagers living under parental involvement laws, the prospect of going to court for a "judicial bypass" of the parental involvement requirement is daunting or futile. Some teenagers live in regions where the local judges simply never grant bypass petitions. 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. 8 Other young women 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." 9
This legislation will endanger the health of young women by forcing them to travel alone.
Many teenagers are unable to satisfy a state parental involvement law, either because they cannot tell one parent (or, in some states, both parents) about a pregnancy or because they cannot face or have no fair chance of obtaining a judicial bypass. In addition, some teenagers must travel out of state to obtain an abortion, either because the closest abortion facility is located in a neighboring state or because there is no in-state provider available at their stage of pregnancy.
The overwhelming majority of young women who obtain abortions involve an adult (a parent, other family member, counselor, clergy member, teacher, or adult friend) in their decision 10 and are accompanied by someone to the health-care facility. 11 S. 661/H.R. 1218, however, would discourage young women 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, many young women would be forced by this legislation to travel alone across state lines. Clearly, it is in the best interests of young women for caring, responsible adults to accompany them to an abortion provider and to escort them home after the surgery. By forcing young women instead to travel alone, S. 661/H.R. 1218 would threaten their physical and mental health.
By closing outlets for teenagers facing the crisis of an unwanted pregnancy, S. 661/H.R. 1218 would lead some to dangerous and desperate acts.
This legislation will push those minors desperate to avoid parental involvement 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 parental notice law. 12
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. S. 661/H.R. 1218 would close that outlet, leading increasing numbers of young women to resort to the kinds of alternatives that all too often end with serious physical harm or death.
This legislation would lead to the unjustifiable prosecution of people who, for appropriate reasons, are helping young women to travel to another state to obtain an abortion.
S. 661/H.R. 1218 would impose federal criminal penalties on anyone (except a parent) who "transports" a young woman across state lines to obtain an abortion if she has not first complied with her home state's parental involvement law. The bill provides no exception for cases in which a young woman's health would be harmed if medical care were delayed in order for her to comply with her home state's parental involvement 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 minor across state lines to the nearest abortion provider, even if an emergency abortion were necessary to save the young woman from 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 that her home state required parental involvement for an abortion;
· 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 courthouse would hear or grant a bypass petition.
As these examples illustrate, this legislation would criminalize caring, responsible behavior on the part of adults concerned with a young woman's best interests. S. 661/H.R. 1218 would deter trustworthy adults and professionals from helping a young woman to obtain an out-of-state abortion no matter what the circumstances. It thus would create a barrier to safe, timely medical care and would endanger young women's well-being.
This legislation raises serious constitutional concerns.
In addition to its damaging effects on young women's health and welfare, S. 661/H.R. 1218 violates both the letter and spirit of the Constitution in at least three respects.
First, this legislation conflicts with core constitutional principles of federalism -- principles recently reaffirmed by the Supreme Court in its landmark ruling Saenz v. Roe. 13 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." 14 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. 15 In violation of these essential principles of federalism, S. 661/H.R. 1218 saddles a young woman with 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 law in effect mandating parental involvement for minors seeking abortions, or have parental involvement laws that do not conform to the definition set forth in S. 661/H.R. 1281. In these states, S. 661/H.R. 1281 would impose on visitors criminal penalties that residents do not face under their own state's laws. The federal bill thus discriminates against teenagers within the same state on the basis of their state of origin and deprives teens, and those assisting them, of their right to travel to engage in conduct legal in another state. 16
That S. 661/H.R. 1218 conflicts with the fundamental nature of our federal scheme should concern anyone who respects the integrity of the American constitutional system.
Second, this legislation violates teenagers' due process rights by subjecting them to government-mandated harm. The Constitution prohibits the government from attempting to deter an 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." 17 By depriving young women of the assistance of others when they cross state lines to obtain an abortion, S. 661/H.R. 1218 exposes them to just such heightened peril.
Young women 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 a young woman to drive home, often over long distances, by herself. This legislation bans virtually all assistance, including that of the young woman's grandparents, aunts, uncles, sisters, brothers, cousins, and religious counselors. It undermines the government's asserted interest in protecting minors' 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 judicial bypass was unconstitutional where it "disserv[ed] the state interest in protecting . . . the minor" because it "proved positively harmful to the minor and her family." 18 Because S. 661/H.R. 1218 subjects teenagers to increased danger by banning assisted travel while leaving them free to travel on their own, it is irrational and unconstitutional.
Third, S. 661/H.R. 1218 lacks a constitutionally required health exception and contains an inadequate life exception. The Supreme Court has held that any restriction on abortion, including laws mandating parental involvement, 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." 19 Because this legislation contains no health exception whatsoever and an impermissibly narrow life exception, it is unconstitutional.
* * * *
Because S. 661/H.R. 1218 would both endanger young women's safety and violate their constitutional rights, the ACLU vigorously opposes its passage.
ENDNOTES
1Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors' Abortion Decisions, 24 Family Planning Perspectives 196, 196 (Sept./Oct. 1992).
2Id. at 200.
3Id. at 202-03.
4American Academy of Pediatrics, The Adolescent's Right to Confidential Care When Considering Abortion, 97 Pediatrics 746, 748 (1996).
5Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 82-86 (1993).
6Ensunsa, Adams Charged With Murder, Idaho Statesman, Aug. 23, 1989.
7Robert 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).
8Tamar 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").
9Hodgson, 497 U.S. at 441.
10Henshaw & Kost, supra note 1, at 207.
11Id. (ninety-three percent of minors who did not involve a parent in their abortion decision were nonetheless accompanied by someone to the abortion facility).
12Rochelle Sharpe, Abortion Law: Fatal Effect?, Gannett News Service, Nov. 27, 1989; CBS, 60 Minutes, Feb. 24, 1991.
13526 U.S. 489, 119 S. Ct. 1518 (1999).
14119 S. Ct. at 1525.
15410 U.S. 179, 200 (1973); see also Saenz, 119 S. Ct. at 1526 (Privileges and Immunities Clause "provides important protections for non-residents who enter a State ? to procure medical services ?").
16Shapiro v. Thompson, 394 U.S. 618, 629 (1969).
17431 U.S. 678, 694 (1977) (plurality opinion).
18497 U.S. at 450.
19505 U.S. 833, 880 (1992).