MEMORANDUM
TO: Interested Persons
FROM: ACLU Washington National Office
RE: The Teen Endangerment Act (H.R. 748)
The American Civil Liberties Union opposes the Teen Endangerment Act (H.R. 748), called the ""Child Interstate Abortion Notification Act"" by its sponsors. The bill imposes a mandatory parental notification requirement on young women who need abortion services in a state where they do not reside, and it does not contain any exception for when an abortion may be necessary to protect a teen's health, in violation of clear Supreme Court precedent. The bill also contains the provisions of the bill previously known as the ""Child Custody Protection Act,"" which 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. The Senate version of this bill, still termed the ""Child Custody Protection Act"" (S. 8/S. 396/S. 403), currently includes only these latter provisions.[1]
H.R. 748 forces doctors, under the threat of federal criminal prosecution, to comply with a hopelessly complex and onerous legal scheme mandating that an out-of-state teen's parents be notified of a young woman's decision to have an abortion. The bill places similarly burdensome requirements on teens. In some circumstances, a teen seeking an abortion must comply with two states' abortion restrictions; in others, the most vulnerable teens are left without even the option of going to court to obtain permission from a judge rather than inform parents who may be abusive.
Moreover, the bill disables a parent from consenting to abortion services for his or her daughter, even when the young woman's health is in danger. Taken as a whole, the bill denies young women facing unintended pregnancies the assistance of trusted adults, endangers their health, and violates their constitutional rights.
This legislation will not create good family communication where it does not already exist.
Even in the absence of any legal requirement, the parents of most young women who seek abortions are aware of their decision. [2] The younger the teenager, the more likely her parents are to know about her decision: 90 percent of adolescents 14 or younger report that at least one of their parents knew of their decision. [3]
For those young women who choose not to involve their parents, many valid reasons compel them not to do so. [4] One third of young women 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 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 13-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]
H.R. 748's limited exceptions provide no safety net for the most vulnerable teens. For example, the bill's ""exception"" for teen victims of certain forms of abuse only applies if the young woman ""declares in a signed written statement that she is the victim of abuse."" This ""exception"" ignores the painful reality that most abused teens are too ashamed or too afraid to report the abuse. Moreover, because the bill requires the doctor to notify the authorities of the abuse before the abortion is performed, many teens will not report the abuse for fear that their parents will discover the abortion. As Justice O'Connor aptly stated in Hodgson v. Minnesota, an ""exception to notification for minors who are victims of neglect or abuse is, in reality, a means of notifying the parents."" [8] Moreover, ""[t]he combination of the abused minor's reluctance to report sexual or physical abuse . . . with the likelihood that invoking the abuse exception for the purpose of avoiding notice will result in notice, makes the abuse exception less than effectual."" [9]
This legislation thus will not create healthy family communication where it does not already exist and merely serves to endanger young women caught in already dangerous family situations.
This legislation endangers young women's health.
H.R. 748 does not contain any exception whatsoever for when an abortion is necessary to protect a young woman's health. It thus bars a teen from obtaining a medically necessary abortion unless she is able to comply with the bill's tangled requirements. Navigation of the bill's provisions will delay needed medical care and could further endanger a teen's health. Although some teens are permitted under the bill to seek court permission rather than inform their parents, this process can take several days - time that is precious during a health crisis. Other teens are denied even the option of court approval. For these teens, parental notification under the bill can take up to 96 hours or more, a delay that can place a young woman with health problems in serious jeopardy.
For these reasons, the Supreme Court has made clear that any parental restriction on abortion must contain an exception to protect the health of a minor. In Planned Parenthood v. Casey, for example, 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."" [10] The lack of such a health exception renders the bill dangerous and unconstitutional.
The bill second-guesses family decisions.
H.R. 748 undercuts functional families by second-guessing their decisions. The bill requires a 24-hour waiting period and written notification, with no medical emergency exception, even if a parent accompanies his or her daughter to an out of-state abortion provider and consents to the abortion services. In such cases, this requirement acts as a built-in mandatory delay, imposing logistical and financial hardships on functional families who are trying to support their daughters. Even in a health emergency, this bill robs a parent of his or her ability to authorize immediate care. For example, if a parent and daughter were vacationing together in California and the parent brought her daughter to a hospital for emergency abortion services, this bill would require a doctor to wait 24 hours before providing that care.
The bill places unconstitutionally burdensome requirements on some teens and leaves others with no options.
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. Others, such as college students, may be living in a state temporarily, but are legal residents of another state. The Teen Endangerment Act creates a patchwork system of parental notification mandates that would impose extra hurdles on some teens and leave others with no options.
Under the bill's provisions, some teens would have to comply with two states' teen abortion laws. For example, a minor who travels with assistance from Missouri to Kansas for an abortion must comply with both Missouri's law and Kansas's law. A young woman who is unable to involve her parents in her abortion decision, and thus pursues a court waiver, must therefore obtain a judicial bypass in both her home state and the provider's state before she can obtain an abortion.
Paradoxically, the bill denies other young women the option of obtaining a court waiver at all. The bill takes away the option of going to court for those teens who live in a state without an enforceable teen abortion restriction [11] and who seek an abortion in another state that either does not have an enforceable teen abortion law or has a law that does not meet the bill's standards for such a law. [12] In these situations, the minor's home state has no waiver system in place and the bill does not permit use of another state's waiver system. Accordingly, the teen will not be able to obtain an abortion until the doctor provides notice of the abortion to one of her parents. The bill thus makes parental involvement mandatory for these teens with absolutely no option for a court bypass. Courts have made clear that such a scheme is constitutionally impermissible.
The bill imposes hopelessly complex and burdensome requirements on doctors.
Under the threat of civil and criminal penalties, the bill requires doctors to make ""reasonable"" efforts to provide in-person, written notice to an out-of-state teen's parents. It provides no guidance to help a physician know what efforts suffice as ""reasonable"" to track down a parent in another state to provide this in-person written notice. This requirement places extremely burdensome, if not impossible, demands on doctors. Because many communities do not have abortion providers, women often have to travel to a neighboring state to obtain an abortion; thus, doctors could routinely be forced to travel hundreds of miles out of state in order to comply with the bill's in-person notification mandate. This federal in-person notification requirement is more onerous than even the most stringent state laws.
Moreover, because the bill operates differently depending on a teen's state of origin, it requires health care providers to be familiar with the legal regimes of all 50 states and to understand the interaction between these varying legal regimes and the local state laws of the provider. The bill thus imposes an onerous system of Byzantine complexity on doctors.
By mandating parental involvement for teenagers facing an unwanted pregnancy, this bill would lead some to dangerous and desperate acts.
This legislation could force some teens to take desperate and drastic measures. A teenager facing an unwanted pregnancy is already in crisis. Teenagers who are unwilling or unable to tell a parent about an unwanted pregnancy sometimes resort to self-induced abortion or illegal abortion with 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]
This bill would criminalize compassion.
This bill imposes federal criminal penalties on any non-parent who helps a young woman cross certain state lines to obtain an abortion if she has not first complied with her home state's abortion law. If passed, this legislation would criminalize caring, responsible behavior on the part of adults - including a teen's grandmother, sister, or clergy member - concerned with a young woman's well being. It would deter trustworthy adults and professionals from helping a young woman to obtain an out-of-state abortion no matter what the circumstances. 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 and the provider state's abortion statutes. It thus creates a barrier to safe, timely medical care and endangers young women's well-being.
This bill violates constitutional principles of federalism.
This legislation conflicts with core constitutional principles of federalism - principles 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 treats a young woman who travels to a state, or who resides in a state temporarily (such as a college student), differently than a minor living in that state. For example, because New York does not have a law restricting teen abortions, a minor living in New York need not notify her parents in order to obtain an abortion. However, a minor who travels into New York, or who temporarily resides in New York, is saddled with an entirely different legal scheme: she must either obtain a court bypass from her home state or, if no bypass is available, be subject to the bill's mandatory notice requirements. The federal bill thus would discriminate against teenagers within the same state on the basis of their state of origin and would deprive teens of their right to travel to engage in conduct legal in another state. [17]
The Constitution also protects the right of each state to enforce its own laws within its territorial boundaries. Yet, this legislation supplants states' decisions to include reasonable alternatives to parental notice in their abortion statutes, or not to restrict young women's access to abortion at all, by imposing a federal notification requirement on certain (but not all) minors in that state.
This bill conflicts with the fundamental nature of our federal scheme, and should, therefore, concern anyone who respects the integrity of the American constitutional system.
* * * *
Because the Teen Endangerment Act (H.R. 748) would both endanger vulnerable young women and violate their constitutional rights, the ACLU vigorously opposes its passage.
Footnotes
[1] See ACLU Interested Persons Memo, The Teen Endangerment Act (S. 8/S. 396/S. 403), available at www.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] 497 U.S. 417, 460 (1990) (O'Connor, J. concurring) (noting that an abuse report ""requires the welfare agency to immediately 'conduct an assessment;'"" if the ""agency interviews the victim, it must notify the parent of the fact of the interview"" and the parent has the right to access the investigation record).
[9] Id.
[10] 505 U.S. 833, 880 (1992).
[11] The following states do not have enforceable parental involvement laws: AK, CA, CT, FL, HI, ID, IL, MT, NV, NH, NJ, NM, NY, OK, OR, VT, WA, and D.C.
[12] See § 2432 (d)(4).
[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).