July 16, 2008
I blogged Monday about the Forum on the Child Interstate Abortion Notification Act (CIANA) that Judiciary minority members held last Thursday, July 10th, and I posted the statements made by Representatives Franks, Lamar Smith and testimony given by Rep. Ileana Ros-Lehtinen.
I wanted to make sure you saw the testimony of the other witnesses who discussed the effectiveness and constitutionality of CIANA and it's importance to protecting young girls. You can read Professor Teresa Collett's submitted testimony about the legal and constitutional aspects of CIANA here, and submitted testimony by Missy Smith, a post-abortion woman who has since become pro-life and works to prevent trafficking of young girls seeking abortions. Michael New also testified and he posted a blog with his testimony here.
To watch video clips of the Forum, go here.
Thursday, July 10, 2008
Prepared Testimony of
Professor Teresa Stanton Collett*
Good morning Congressman Franks, Members of the Committee, and other distinguished guests. My name is Teresa Stanton Collett and I am a professor of law at the University of St. Thomas School of Law in Minneapolis, Minnesota, where I teach constitutional law and bioethics. My presentation today is not intended to represent the views of my employer, the University of St. Thomas, or any other organization or person.
I am honored to have been invited to participate in this forum on H.R.1063, the "Child Interstate Abortion Notification Act" ("CIANA"). In the past fifteen years, I have assisted legislators across the country in evaluating parental involvement laws during the legislative process. During that time, I also have had the privilege of assisting the attorneys general of three states in defending their parental involvement laws - Florida, New Hampshire, and Oklahoma. My comments represent my professional knowledge and opinion as a law professor who writes on the topic of abortion, and specifically on parental involvement laws.
It seems appropriate to briefly review the legislative history of CIANA. This bill is the culmination of a decade of Congressional effort to insure that young girls are not coerced or deceived into crossing state lines to obtain secret abortions. In 1998, 2001, and 2004, I testified in support of "the Child Custody Protection Act," and in 2005, I testified before the House Committee on the Judiciary regarding the merits of H.R. 748, the "Child Interstate Abortion Notification Act." All of these predecessors to H.R. 1063 were premised on what Justice O'Connor has called "the quite reasonable assumption that [pregnant] minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart."
Sizable bipartisan majorities of both Congressional houses voted to enact this common sense legislation during the last legislative session, only to have those votes nullified by opponents' last-minute procedural maneuvering. House leadership has refused to even allow a hearing on CIANA during this legislative session. This outcome is particularly troubling in light of the public's strong support for parental involvement.
In my brief time during this forum I would like to discuss three points: 1) CIANA addresses a real problem; 2) a federal solution to the problem is necessary; and 3) CIANA is constitutional.
CIANA addresses a real problem.
It is beyond dispute that young girls are being taken to out-of-state clinics in order to procure secret abortions. In 1998, Joyce Farley testified before the House Subcommittee on the Constitution about the complications her daughter, Crystal, suffered as a result of a secret abortion. Crystal became pregnant at the age of twelve when Michael Kilmer, an eighteen year-old neighbor, got her drunk and then raped her. Mr. Kilmer's mother, Rosa Hartford, took the young girl to a New York abortion clinic to avoid Pennsylvania's parental consent law. Crystal's mother, a registered nurse, learned of her daughter's abortion when Crystal began experiencing severe pain and hemorrhaging at home following the abortion. The abortion was incomplete, and additional surgery was required. consent).
In 2005, the House Subcommittee on the Constitution heard the testimony of Marsha Carroll, the mother of a fourteen year-old-girl, who was secretly taken out-of-state by her boyfriend's parents to obtain an abortion. Upon arriving at the abortion clinic, Mrs. Carroll's daughter began to cry and tried to refuse the abortion. The boy's parents told her they would leave her in New Jersey if she resisted. She gave in to their pressure, had the abortion, and now suffers from depression and guilt.
Sadly these stories represent the experiences of a large number of young girls who obtain abortions. Like Crystal, many teens who obtain abortions are pregnant as the result of statutory rape. National studies reveal "[a]lmost two thirds of adolescent mothers have partners older than 20 years of age." In a study of over 46,000 pregnancies by school-age girls in California, researchers found that "71%, or over 33,000, were fathered by adult post-high-school men whose mean age was 22.6 years, an average of 5 years older than the mothers. . . . Even among junior high school mothers aged 15 or younger, most births are fathered by adult men 6-7 years their senior. Men aged 25 or older father more births among California school-age girls than do boys under age 18." Other studies have found that most teenage pregnancies are the result of predatory practices by men who are substantially older.
Similar to the experiences of both Crystal and Marsha Carroll's daughter, abortion is often the result of the man's choice when a young girl gets a secret abortion. A survey of 1500 unmarried minors having abortions revealed that among minors who reported that neither parent knew of the abortion, 89% said that a boyfriend was involved in deciding or arranging the abortion (and 93% of those 15 and under said that a boyfriend was involved). Further, 76% indicated that a boyfriend helped pay the expenses of the abortion. Clearly, a number of young girls who obtained abortions without their parents' knowledge were encouraged to do so by a sexual partner who could be charged with statutory rape.
Failure to Report by Abortion Providers
Abortion providers are reluctant to report information indicating a minor is the victim of statutory rape. The clearest example of this reluctance is the arguments presented in the lawsuit filed by a Kansas abortion provider to prohibit enforcement of that state's reporting requirement related to sexual abuse of minors. Claiming that children under the age of sixteen were sufficiently mature to engage in non-abusive sexual intercourse, Aid for Women, a Kansas City abortion provider, sued to enjoin the state's mandatory reporting law on the basis that it violated minors' constitutional right to informational privacy. The district court, adopting the arguments of the abortion provider, ruled that minors between the ages of twelve and fifteen had a constitutional right to engage in non-coercive sexual activity, including but not limited to "penile-vaginal intercourse, oral sex, anal sex, and touching of another's genitalia by either sex." On appeal from a preliminary injunction in the case, the Court of Appeals for the Tenth Circuit rejected such a constitutional right, but the district continued to assert the unconstitutionality of the reporting law at the conclusion of trial. Unfortunately the appeal to the Tenth Circuit was rendered moot by unrelated legislative changes in the law.
Failure to report the sexual abuse of minor may result in the minor returning to an abusive relationship. For example, news reports indicate that lawsuits are currently pending in Connecticut and Ohio against abortion providers that provided abortions to underage girls who were the victims of sexual abuse. The Connecticut case involves a fourteen-year-old girl who was impregnated three times in six months by her twenty-one year old boyfriend. Each time the girl obtained an abortion the abortion provider failed to report the case to public officials. Ultimately the case was brought to the attention of law enforcement by the teen's mother.
In Ohio, a thirteen-year-old girl was impregnated by her twenty-one-year old soccer coach, John Haller. In order to conceal the illegal relationship, Mr. Haller arranged for the girl to obtain an abortion by first impersonating her father during a telephone call with the clinic, and then pretending to be her brother while accompanying the girl to the clinic to obtain an abortion. The sexual abuse was only discovered after another teacher overheard the girl arguing with Haller about their relationship, and reported the conversation to law enforcement. Subsequently the girl and her parents sued the abortion provider, Planned Parenthood of Southwest Ohio Region, for failure to comply with the Ohio sexual abuse reporting statute. "Planned Parenthood did not deny that it had not filed an abuse report." .
These cases do not appear to be a historical aberration. In 2001 an Arizona Planned Parenthood affiliate was found civilly liable for failing to report the fact that the clinic had performed an abortion on a twelve-year-old girl who had been impregnated by her foster brother. The abortion provider did not report the crime as required by law and the girl returned to the foster home where she was raped and impregnated a second time. In 2003 two Connecticut doctors were investigated for failing to report to public officials that an eleven-year old girl had been impregnated by a seventy-five year old man.
By failing to report, abortion providers reduce the chances that rapes will be discovered, and by failing to preserve fetal tissue, they may make it impossible to effective prosecute those rapes that are discovered.
A federal solution to the problem is necessary
Both Joyce Farley and Marsha Carroll wanted to care for their daughters as the girls experienced their unplanned pregnancies. Both mothers lived in Pennsylvania, a state requiring parental consent prior to the performance of abortions on minors. Yet both mothers were deprived of the opportunity to counsel and protect their daughters by others adults who took the girls to states having no parental involvement requirements related to abortion.
Both girls were subjected to pressure by those who had an interest in hiding or ending the girls' pregnancies. In both cases, abortion providers failed to intervene to insure that the girls freely gave their informed consent to the abortions. Both girls suffered lasting harm from their abortions.
These cases reveal the limitations of states' authority to protect parents' rights to direct the medical care of their minor children outside the individual states' geographic boundaries. While Pennsylvania, like many states, statutorily protects a parent's right to be involved in their daughter's decision to obtain an abortion, these statutory protections were easily evaded by taking the minor to a state that does not require parental consent or notification prior to performance of abortions on minors.
At least one state has attempted to address this problem statutorily. Legislators in Missouri realized that abortion providers in the neighboring state of Illinois deliberately marketed their services to Missouri minors on the basis that no parental involvement is required prior to performance of an abortion on a minor in Illinois. New reports estimated that over 200 Missouri teens crossed the state line annually to obtain abortions in Illinois. To discourage this practice, the legislature passed a law creating civil remedies for parents and their daughters against individuals who would "intentionally cause, aid, or assist a minor" in obtaining an abortion without parental consent or a judicial bypass of Missouri's consent requirement. Abortion providers immediately attacked the law as unconstitutional. The state attorney general vigorously defended the law as a reasonable means to insure that Missouri minors had the benefit of parental involvement when deciding whether to obtain abortions.
The Missouri Supreme Court upheld the constitutionality of the law limiting the activities subject to civil liability, and by excluding out-of-state conduct. "Of course, it is beyond Missouri's authority to regulate conduct that occurs wholly outside of Missouri, and section 188.250 cannot constitutionally be read to apply to such wholly out-of-state conduct. Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect."
The Missouri court was constrained by the United States Supreme Court decision, Bigelow v. Virginia, 421 U.S. 809 (1975). In Bigelow the Court overturned a Virginia law restricting advertising of abortion by out-of-state providers:
Moreover, the placement services advertised in appellant's newspaper were legally provided in New York at that time. The Virginia Legislature could not have regulated the advertiser's activity in New York, and obviously could not have proscribed the activity in that State. Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded Virginia possessed no authority to regulate the services provided in New York-the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.
While there is scholarly debate on the point, the judicial consensus appears to be that states do not have the power to regulate conduct in neighboring states. Yet out-of-state conduct can completely defeat state laws requiring parental involvement in their daughters' decisions regarding abortion. Congressional action is required to protect states' recognition of parents' right to be involved in their daughters' decisions to obtain abortions.
CIANA is constitutional
Opponents of CIANA have persistently claimed that passage of the law would violate the constitutional right to travel and would exceed Congressional authority under the interstate commerce clause. Both claims are baseless.
The "right to travel" is composed of "at least three different components." It protects: (1) "the right of a citizen of one State to enter and to leave another State," (2) "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State," and (3) "for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State."
CIANA imposes no obstacle on a minor entering or leaving any state. CIANA does not prohibit anyone from accompanying minors to obtain an abortion; it simply requires those aiding or assisting minors to obtain an abortion to comply with the parental involvement laws of the minor's state of residence. Nor does the act cause minors to be treated as "an unfriendly alien when temporarily present in the second State." CIANA also does not deal with individuals who elect to travel in order to become permanent residents of another state. In short, the act "does not directly impair the exercise of the right to free interstate movement."
CIANA is a legitimate exercise of Congressional authority under its authority to regulate interstate commerce. "To keep the channels of commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question." The Supreme Court has repeatedly said crossing state lines is interstate commerce regardless of whether any commercial activity is involved. "[T]he transportation of persons across state lines ... has long been recognized as a form of "commerce.'"
As recently as 2005 in Gonzales v. Raich, the United States Supreme Court upheld Congressional authority to regulate conduct related to medical care. There is little reason to believe that the Court would sustain a challenge to the constitutionality of CIANA.
In balancing the minor's right to privacy and her need for parental involvement, the majority of states have determined that parents should know before abortions are preformed on minors. This is a reasonable conclusion and well within the states' police powers. However, the political authority of each state stops at its geographic boundaries. States need the assistance of the federal government to insure that the protection they wish to afford their children is not easily circumvented by strangers taking minors across state lines.
The Child Interstate Parental Notification Act has the unique virtue of building upon two of the few points of agreement in the national debate over abortion: the desirability of parental involvement in a minor's decisions about an unplanned pregnancy, and the need to protect the physical health and safety of the pregnant girl. I urge Chairman Nadler to hold hearings on this important legislation and members of Congress to vote for its passage.
Thank you, Congressman Franks, for allowing me to participate in this forum.
THURSDAY JULY 10, 2008 8:00 AM
RAYBURN HOUSE BUILDING - 2237
WASHINGTON, D.C. 20515
CONGRESSMAN TRENT FRANKS
CONGRESSWOMAN ILIANA ROS-LEIGHTENEN
My name is Missy Smith. I am here today as the Washington DC leader for Operation Outcry, an organization of post-abortive women dedicated to educating the public about the devastating impact of abortion on young girls, women, men and families. I also work with the Gabriel Project, which provides resources to women in crisis pregnancies, and Project Rachael, which offers counseling to post-abortive women. i helped form St. Ann's Helpers for Life, which provides long-term financial and emotional support for women and children. I work with Defend Life, Generation Life, and Chastity Programs International. I am a member of the Silent No More Awareness Campaign.
I have ten years experience as a pro-life activist. My work began in November of 1999 when I learned about the multi million dollar business of trafficking in baby body parts. I am a post abortive woman myself and had no idea babies were being sold on the open market like spare automobile parts. I attended the hearings on the issue on capitol Hill and educated myself on the harm that results from abortion.
For me, this information was an immediate call to action. My work as a pro-life activist began. Although my experience in the pro-life movement is wide and varied, I started in by forming an organization called "Wakeup" - which stands for "Women Against the Killing and Exploitation of Unprotected Persons."
As part of the work of the "wakeup" group, I found myself in front of these abortion mills I had been reading so much about, counseling abortion-minded women about the negative effects of abortion. This is called frontline work, since it is the last moment before a child dies and a young girl is permanently hurt. I stopped selling real estate and focused my attention full time on saving babies' lives and helping women. I became a full time pro-life activist.
Because I had had two abortions, I could speak directly to the trauma that could be expected in having an abortion. This gave me a vantage point that others did not have. I know that young girls, specifically minors, are especially vulnerable to outside pressures.
I am here today to speak directly to what I have seen with my own eyes and experienced in front of numerous abortion clinics in Maryland, Washington DC, and Virginia.
I have seen many young girls - some of whom are barely older than Jr. High School children - being pushed, pulled, screamed at threatened and bullied into abortion facilities. It is easy to see that a large percentage of these young girls are minors, and sometimes, the young girl or the person who is driving her to the abortion will tell us her age, confirming our suspicions. Sometimes, we learn through talking with the young girl that she has been raped, and is only 13 or 14 YEARS OLD. This is sometimes a case of statutory rape, which is recognized as a crime in all 50 states. Oftentimes, the license plates of the cars used to transport these young girls to the clinics are from other states. Some young girls want to go somewhere where they are unlikely to know someone at the clinic. Most worrisome, where the young girl is a victim of incest or statutory rape, one way to conceal evidence of the crime is to kill the evidence of the crime, the unborn child, and protective measures like state parental consent laws stand in the way of this concealment, therefore the assailant must take his victim across state lines. Rapists (who may be the boyfriend, stepfather, or other authority figure in the life of the young girl) will transport her across state lines to avoid parental consent laws or to more effectively hide his crime. Those of us who do this work know that this is a reality. Therefore, I approach the young women with this in mind and try to let them know that they can confide in me, that they are safe with me, and that I will help them.
There are only three reasons a female comes to an abortion facility. One is to be tested or treated for a sexually transmitted disease, to get birth control or to have an abortion. Any young girl who arrives at an abortion clinic should be protected by the persons who work in the clinic. This means, among other things, immediately reporting any evidence of rape, abuse or incest to the authorities. This almost never happens in my experience, making the abortion clinic a place of further abuse rather than a refuge where a young girl can get help. The age of the child is sometimes disregarded, and if pregnant, the age of the father is, to my knowledge and experience, rarely recorded or even asked about.
I have intervened when I learned a young girl was a victim of crime or coercion. Unfortunately, state law enforcement is often not much help. I have called the police multiple times, based on information that I have been told by an adult or a young girl indicating that the young girl transported for an abortion is underage. On some occasions after many aggressive phone calls from me, and officer has told me bluntly that nothing could be done. Too often, the state law is being broken and the state law enforcement officers will not enforce the law. Those like me who would volunteer to boldly intervene on behalf of these young girls can do very little when the law does not back us up. This is one reason why laws like CIANA are needed.
I have seen children being taken into abortion facilities with my own eyes, and I am there when they come out broken and in tears.
Abortion harms young girls. They need from federal lawmakers all the protection they can get. No young girl should find herself being transported to a clinic with no chance of being intercepted or rescued, without protection by the law. The harm resulting is severe and often permanent. I want to read a quote from Julius Fogel, a psychiatrist and obstetrician who personally performed 20,000 abortions. He said:
"Every woman whatever her age, background or sexuality has a trauma at destroying a pregnancy. A level of humanness is touched. This is a part of her own life. When she destroys a pregnancy, she is destroying part of her own life. When she destroys a pregnancy, she is destroying herself. There is no way it can be innocuous. A psychological price is paid. It may be alienation: it may be a pushing away from human warmth, perhaps a hardening of the maternal instinct. Something happens on the deeper levels of a woman's consciousness when she destroys a pregnancy. I know this as a psychiatrist."
I know this as a full time pro-life activist who is a post abortive woman herself. I still miss the children I lost from coerced abortions.
This harm, I believe, is far greater to a young girl. Our young people deserve protection under the law.
In closing I want to commend all of you involved with this Forum for seeing the need to protect vulnerable young girls who need your help.