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House Passes Abortion Bill:
The House passed a bill yesterday that would make it a federal crime for any adult to transport an under-age girl across state lines to have an abortion without the consent of her parents. I haven't followed this bill and haven't read the Supreme Court's relevant cases in this area since law school, so I have a question for any VC readers who are experts in this area: Under existing Supreme Court precedent, is this bill constitutional? What are the key cases and arguments?

  I have enabled comments; descriptive legal analysis only, please.

  UPDATE: The bill text is avilable here.

  ANOTHER UPDATE: Several commenters decided that it would be cool to use the comment section to discuss the normative question of whether the Constitution should be read to include a right to privacy. I have deleted those comments. To be more clear this time, I am interested only in the question of whether the bill is consistent with existing constititutional law. (Sorry to be so uptight about that, but I think most VC readers are more interested in hearing from specialists about existing doctrine.)
marc garber (mail):
Orrin:

I'm no abortion-law expert but I am a former federal prosecutor. It strikes me that this new law describes a violation of the federal kidnapping statute, 18 USC Sec. 1201. If the adult-defendant does not have the consent of the minor child's parents, then a good case can be made that taking the child across state lines violates Sec. 1201. So why is it we need this new law?
4.28.2005 3:20pm
Christopher A. George (mail) (www):
I am not an expert, but.....
per Planned Parenthood v. Casey (1992), before viability, a woman can have an abortion pretty much unfettered. The case also held that if an undue burden on a woman's right to have an abortion exists then the law is invalid. A law placing an undue burden is one where the purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before viability.
Personal opinions about SCOTUS abortion decisions aside, I believe that most federal judges would not have a hard time deciding that a law preventing a 19 year old from taking her 17 year old friend to another state for an abortion equals a substantial obstacle.
C.A.G.
4.28.2005 3:23pm
Guest (mail):
So, who IS an expert ?

This law is probably constitutional, unless you see the "right to privacy" and the "right to travel" as trumping the commerce clause.
4.28.2005 3:32pm
H:
This responds to the first comment above. I'm no federal prosecutor, but suppose that two teenage friends live a mile apart, but each on a different side of a state line. The first teenager drives over to the second one's house, picks her up, without her parents' knowledge, and drives her to his house, where they do their homework together. Is he guilty of violating the federal kidnapping statute? If not, is this different from the abortion scenario?
4.28.2005 3:41pm
Dick King:
Re the undue burden notion, consider the constitutionality of the parental notification requirement itself. Would that requirement be constitutional if enacted in Hawaii, where most minors clearly lack the resources to travel across aany state line to a more lenient state?

I can't imagine an analysis that goes "Well, a parental notification requirement would be an undue burden in Hawaii, but in your state that requirement is not an undue burden because unlike a Hawaiian you can just nip across the state line."

I imagine parental notification laws have been ajudicated and found to be constitutional. That being the case, this proposed law would not itself constitute an undue burden.

-dk
4.28.2005 3:44pm
Justin (mail) (www):
"This law is probably constitutional, unless you see the "right to privacy" and the "right to travel" as trumping the commerce clause."

Sigh....thus the problem with the Commerce Clause.

I'm not sure that, once the government has the power under the commerce clause to regulate interstate abortions, that any individual right here exists that wouldn't kill a state's right (reverse incorporation analysis?) to enforce the consent law in the first place. But its a more open question than it first appears:

The only difference is the consent law directs the doctor's behavior, and the state has th while the federal law affects the behavior of individuals. Doctors can be regulated under the state's ability to regulate medicine, right up to the line of Casey. Now, if one can just hop across state lines, those laws are rendered meaningless, which either is the saving grace of federalism or the need to invoke the Neccesary and Proper and Commerce Clauses.

After all, a state couldn't make this law and apply it to its own jurisdiction under the dormant commerce clause. The first inclination is that if the dormant commerce clause forbids it, then the actual one can be substituted.

So given the federal government has the power under the commerce clause, I'm inclined to say that no individual right (such as the "right to travel") can trump it, because the qualification of requiring an illegal intent is put in the bill.

On the OTHER HAND, I'm not *entirely* sure the Commerce clause works here. The state can pass a law outlawing violence against women, but the federal government can't; and I don't think they could even if someone crossed a state line to beat their wife. Whether abortion is sufficiently "commercial" (you can buy and sell it as a service) will probably be determined by the court's reasoning in Raich. I'm inclined to believe that Raich will destroy most of Lopez and Morrison and thus the law would be found constitutional...my belief is also that it's wrong, but that's for a law review article I'm planning to write to explain why.
4.28.2005 3:47pm
Nick from SD (mail) (www):
Not claiming to be an expert, this is what I know-

Any state action that creates an undue burden on a women's right to abortion is unconstitutional. Planned Parenthood v. Casey (505 US 833). A state requirement of parental consent doesn't pose an undue burden, as long as their is an exception that the women can obtain consent from a judge instead. Hodgson v. Minn (497 US 417).

Now, a recent US Supreme Court Cert. denial from a Ninth Circuit Court case, further broaden "undue burden". This case stated a parental consent requirement did impose an undue burden. The Idaho statute allowed an abortion without proper consent only when the minor had a medical condition that was (1) sudden, (2) unexpected, and (3) abnormal. Because these structures required the patient's condition to be sudden, unexpected, and abnormal, and not just adverse to the women's health. A number of medical conditions existed that were medical emergencies in the usual sense, in that once diagnosed they required an immediate abortion to preserve the mother's life or health. But the statute didn't permit a consent exception in these cases, as they were not sudden, unexpected, and abnormal. Thus, the statute's definition of "medical emergency" rendered the maternal health exception unconstitutionally narrow. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 The court allowed this ruling to stand, and thereby this new federal law could easily be declared unconstitutional.

Because the Federal Law gaurds only those taking over state lines, it will probably pass the Morrison and Lopez standards for interstate commerce.
4.28.2005 4:02pm
Sabastian:
I think this discussion could benefit from a few case references :).

Re: the commerce clause--will have to go back before most VC readers were born:
1. HOKE v. U S, 227 U.S. 308 (1913): upheld the Mann Act/"white slave traffic act," "An Act to Further Regulate Interstate and Foreign Commerce by Prohibiting the Transportation Therein for Immoral Purposes of Women and Girls, and for Other Purposes," as a proper exercise of the interstate commerce power because Congress via IC clause has plenary power over transportation among the several states. . Act prohibited persons from transporting over state lines "any any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.

Quote from case: "The principle established by the cases is the simple one, when rid of confusing and distracting considerations, that Congress has power over transportation 'among the several states;' that the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations."
2. CAMINETTI v. UNITED STATES, 242 U.S. 470(1917): upheld application of Mann Act to man who transported woman to make her "his mistress and concubine." (Lopez probably overrules Caminetti.)

Re: Abortion:
1. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v. ROBERT P. CASEY, ET AL: upholding state's right to require minors to provide proof of parental consent so long as there is a judicial bypass option. But can the federal government impose a parental consent requirement, particularly one without any judicial bypass option? Planned Parenthood of Central Mo. v. Danforth struck down an absolute parental consent requirement within the first 12 weeks.
4.28.2005 4:08pm
Sabastian:
Correction: the parental consent requirement struck down in Danforth was not absolute; it could be waived if a physician certified that the abortion was necessary to save the life of the mother. Full case cite: Planned Parenthood of Central Missouri v. Danforth 428 U.S. 52 (1976)
4.28.2005 4:13pm
Daniel san (mail):
IT seems that Federal action to prevent one State from subverting another State's parental notification statute places no further burden on the pregnant minor. However, a parental notification statute is unconstitutional unless there is a right to Court review. Likewise, it seems that this statute must be subject to Court review. In some areas, it is very difficult (maybe impossible?) to obtain an abortion without travelling across State lines. If the minor does not have the right to appeal to a Court, which can absolve her of the need to tell her parents, it seems that the statute would be unconstitutional, at least as applied in an area where abortion services are not readily available.
4.28.2005 4:14pm
Garrick Sevilla (mail):
Assuming the act is a valid exercise of the Commerce Clause the issue is whether it violates Casey's undue burden test. In Bellotti v. Baird, the Court upheld such consent requirements in an effort to balance parental autonomy and a minor's reproductive autonomy. We could argue all day about how realistic a judicial by-pass procedure is, but it nominally recognizes a minor's interest in reproductive autonomy (albeit a very limited one).

If this Act did not have a health exception, I think it would have failed the undue burden test since you could imagine a situation in which a minor was away from home and needed an abortion for health reasons. The health of the mother is the second of Roe's twin aims, and the rationale for why the partial birth abortion ban was struck down in Stenberg v. Carhart. Regardless, the drafters of the Act did their homework and included such an exception. I find it unlikely that a federal law that merely requires a minor to satisfy the requirements of her home state (which are constitutional) will cross Casey's undue burden threshold.

As far as right to travel goes, I think the issue is whether this right applies to minors at all. My guess is that it doesn't. The Court has been very deferential to parents in matters relating to upbringing of children. See e.g. Wisconsin v. Yoder; see also Parham v. J.R. (parent can institutionalize child if child is screened by a doctor). I think this necessarily implies that the rights of children yield to the fundamental rights of the parent.
4.28.2005 4:23pm
Nick from SD (mail) (www):
If growing your own wheat to feed your own animals is interstate commerce, there is no doubt taking a minor over state lines to pay for an abortion is not going to be interstate commerce. Rehnquits spells out interstateness as: Channels, Instrumentalities, and substantial effects. Driving over statelines qualifies, this is not a commerce clause issue.
4.28.2005 4:45pm
Greedy Clerk (mail):
Orin, I can say with 99% confidence that the judicial bypass provisions in this law would not come close to being constuttional, and the exceptions (or lack thereof) for health of the mother are not constitutional either. Narrower versions of the bill proposed by dems were not brought to the floor I believe. Thus, put aside the other concerns --- it doesn't get past first base.

You would think that the Republicans are passing this law, knowing it will be struck down by the courts, so they will have a campaign issue this time next year (i.e., those damn activist librull judges) --- but we all know they would never do anything like that. This is about savin' der babies.
4.28.2005 4:46pm
arbitraryaardvark (mail):
eric: the right to privacy is implicit in the first amendment rights to speech, Talley v California, and assembly, NAACP v Alabama ex rel Patterson, Bates v Little Rock.
The right to privacy is found in the 5th amendment, prohibition against self-incrimination, due process.
The right to privacy is an unenumerated right protected by the 9th and 10th. Goldberg concurring, Roe v Wade, Barnett, the forgotten ninth amendment. The third amendment protects the privacy of the home - tom bell article.
Travel to the nation's capitol is a privilege and immunity of federal citizenship. Minors tend to be citizens. Courts tend to ignore this. McConnell v FEC.
4.28.2005 4:59pm
MJ (mail):
I think Garrick is right on the money with his analysis. The bill provides a health exception so that can't be the basis to conclude that it is unconstitutional.

Parental notification laws have been upheld across the board, so that can't be the basis to conclude its unconstitutional either.

Traveling across state lines to pay for a service certainly falls into the realm of the Commerce Clause, (interstate travel is not the issue it's interstate travel FOR THE PURPOSE OF HAVING AN ABORTION - not the traveling that is the crime)so that can't be the basis; no one is prohibiting travel, only travel with the intent to do X. (Think of the "travel with the intent to have sex with a minor" provisions of the U.S.C.)

Lastly, simply prohibiting an adult from assisting a minor to evade the judicial by-pass options that have already been uniformly held to not constitue an undue burden, can't be itself an undue burden.

Shouldn't be a close Constitutional call on this if it passes the Senate.
4.28.2005 5:56pm
Adam (mail) (www):
Would that it were that simple.

1. The exception is only for life, not health: "The prohibition of subsection (a) does not apply if the abortion was necessary to save the life of the minor because her life was endangered by physical disorder, physical injury, or physical illness, including a life endangering physical condition caused by or arising from the pregnancy itself."

2. The law requires the foreign state doctor to inform the parents in the host state even if the host state's law does not mandate parental consent, plus comply with the notification requirements in his own state.
4.28.2005 8:53pm
John (mail):
Re: kidnapping

the distinction in the homework case is the parents' actual or presumptive (implied) consent. There would be homework cases, e.g., where the parents had told the fellow student, "don't you take our daughter to your house for homework," where a kidnapping case could exist, if the daughter was below the age where the relevant law would allow her to decide for herself.
4.28.2005 8:57pm
Justin (mail) (www):
The American Prospect has its own little issue yet discussed.


This actually brings up a seperate point about how the constitutional right to travel could be effected de facto, if not de jure, by the legislation. Don't know what to make of it.
4.28.2005 9:49pm
Adam (mail) (www):
Even without that amendment, the knowledge requirement in the act should suffice to protect those folks.
4.28.2005 10:06pm
David T. Hardy (mail) (www):
Re Commerce: at Interior we regularly enforced the Lacey Act Amendments (somewhere in 16 USC) which forbid transporation in commerce of wildlife (or parts thereof) taken in violation of State law. [Sort of a Mann Act for turtle and eagle feathers] We never had a serious Commerce objection. This seems an analog of that, and with the same thrust: prevent use of commerce to evade State law.

With regard necessity of a judicial determination as a safety valve: I suspect that'd be taken care of by most State laws (or at least those that have survived judicial muster), hence no barrier to preventing their being side-stepped via interstate commerce, even if the Federal law has no such escape clause.
4.28.2005 10:25pm
Lucia (mail) (www):
This law is probably constitutional, unless you see the "right to privacy" and the "right to travel" as trumping the commerce clause.


I'm not a lawyer, and at the risk of asking something obvious, don't individual liberties and rights trump the commerce clause? For example, if Congress passed a law barring interstate sales of the newspapers wouldn't "freedom of speech" trump the commerce clause?

I realize this has got to be something covered in hypotheticals in law school, but those of us who aren't lawyers might want to know.

( I recognize there one might argue about the whether or not we have the "right to travel" or the "right of privacy", I'm just asking whether or not recognized rights trump the commerce clause -- at least generally.)
4.28.2005 11:34pm
Dimmy:
Remember, there is a joke whose punch line is "transporting young gulls across a staid lion for immoral porpoises." Surely the Supreme Court would not do anything to diminish the impact of this horrible joke.
4.28.2005 11:35pm
wfw:
I note above analogies to illegal behavior - transportation of wildlife (or parts thereof) taken in violation of state law, or travel with the intent to have sex with a minor (obviously in violation of state law). Is this useful? These seem to be weak analogies. Interstate travel for the performance of a legal medical procedure is not strongly analogous to transportation of illegal animal parts or illegal sex with minors. It's not even particularly analogous to crossing state lines for a shopping trip, with the intention of avoiding state sales taxes.

Other cases come immediately to mind. Would a bus driver be liable for transporting an unaccompanied minor to a town where she could get an abortion?
4.28.2005 11:43pm
nothing (mail) (www):
I would guess that this act would be upheld.

Nonetheless, it seems to raise an interesting possibility. When the Court found various other restricitons on abortion (parental notification and the like) not to be "undue burdens", they made that decision in a world where one possiblity for a young woman was to be transported across state lines by a friend to get an abortion.

So what if the combination of this new law and the old law create an undue burden, but neither individually does? Which law would/could the Court strike down?

Even as I type this it seems ludicrous - in the Casey opinion, the Court very clearly seemed to look at each restriction individually and categorically classify it as an undue burden or not. Combinations of restrictions seemed to have no relevance. So I guess I proffer this post as a what if in which I am interested - are there any analogues in other area of constitutional law that are more plausible/have been addressed?
4.29.2005 12:10am
Iron Teakettle (mail) (www):
It will be constitutional, if it is passed by the House and the Senate and signed into law by the President. If challenged in Court, it will be presumed constitutional, and will be construed so as to render it constitutional to the farthest extent permitted by its language and the facts of the case. It will be ruled unconstitutional only if a challenger can meet his burden of overcoming the law's presumption of constitutionality. The law is a practical thing, not an intellectual exercise, and when you talk about Due Process please remember the process.
4.29.2005 12:29am
A Blogger:
Teakettle,

Gee, thanks. That was very helpful.
4.29.2005 12:53am
Originalist layman:
Adam introduced these terms:
- the "host state", for the minor
- the "foreign state", for the doctor and the abortion location

Perused the bill's text. Neither term is in the original text.

Problem 1: The State(s) for the minor
The bill repeatedly uses the phrase
"the State where the minor resides".
Once it used "the minor's State of residence" (small r).
I could reasonably interpret "the State"
as where I am sleeping on a regular basis;
e.g.
- My dorm room. Perhaps I'm a child protege.
- I'm at boarding school, or on an exchange program
- I'm with Grandparents while folks are deployed to Iraq.
It's a small r, "residence" and where I "reside"
so it can be different than my State of Legal Residence.

I saw one phrase for the State of the doctor and the abortion.
I saw one phrase for the parent's State, used twice.
I saw one phrase for the Court waiving notification.

+++++ +++++ ++++++ ++++ +++++ +++++
Theme: The bill seems to be written with the presumptions that
(a) the minor and a 'parent' are together under the same
roof, and
(b) that roof is the parent's and minor's State of Legal Residence.
If these are not true, thorny problems and interpretations ensue.
+++++ +++++ ++++++ ++++ +++++ +++++

Hypotheticals follow:

- Does the Doctor follow the laws of the minor's
departure state or Legal Residence state?
(How many days must the minor sleep overnight
in a place to 'reside' there?)

Hypotheticals:
- If the minor is at college
'residing' in a State WITH parental notification
and travels to Doctor's State,
do the parent's sue based on the college State laws
or the Parents State laws or either one of their choice?

- Similarly, if the minor is at college
'residing' in a State WITHOUT parental notification,
can the parent's sue based on THEIR State's laws?
(Perhaps the minor didn't have to cross a state line.
I think the parents will lose, but someone's going
to try this.)

I saw one phrase for the State of the Doctor and the Abortion.
"an abortion is performed or induced...in a State
other than the State where the minor resides"
- If the minor is a military dependent
living/'residing' with parents in State M
but with Legal Residence (for tax purposes) in State L
and travels to Doctor's office in State D,
can the parent's sue based on a State L violation?
- Same question but Doctor also in State M.


I saw one phrase for the parent's State.
(c)(2)" the minor's State of residence...
parental notification required by ...that State"
Notice that "State of residence" is used!
The laymen can argue the intent was State of legal residence, especially for the active military who don't
get to choose the State, and thus the laws, where
they are stationed and domiciled/'reside'.

There are multiple uses of "a Parent".
If a minor has divorced parents with Joint custody
and the parents live in different States,
must the Doctor notify both parents?
or the Parent with the most strict State laws?
How does the Doctor reasonably determine the
address and hence "State of [legal?] residence"
of the Parent?

- What if the Minor is a foreign exchange student?
Does the Doctor satisfy the law by attempting to
notify the foreign Parents and waiting 48 hours,
intentionally ignoring the local U.S. 'Parents'?
(or unintentionally, if the Minor misled his staff
when filling out the forms, or the forms just didn't
ask enough questions to discover the Minor's status).

- If the minor is at college 'residing' in State C
and pays taxes to State C (working her way through
college) will the answer to 'State of residence'
differ depending on:
- The minor IS claimed as a dependent on her Parent's federal income tax
- The minor IS NOT claimed as a dependent on her Parent's federal income tax. (Trying to establish
in-state residency instead of paying out-of-state tuition,
or some other who knows why reason.)
- The minor lives in the dorm, appearance of a
'temporary residence' versus an apartment.

I saw one phrase for the State of the Court
that granted the Minor's notification waiver,
but the phrasing and word proximity implies
that the Waiver Court's State is the same as a Parent's State.
Is it an undue burden for a college student
to have to appear in a Court at her Parent's state, rather than her college state?
(She's not old enough to vote, to use voting to
establish her 'residency'. She won enough scholarships
to pay her own way. She is seeking an abortion
in the Oct-Mar window, so she hasn't yet filed
her taxes for the scholarships. (You don't pay taxes
on Tuition and Books, but any excess is taxed.
For example, an ROTC Scholarship paid for Tuition-Books,
but you also received a National Merit or Local Civics Club scholarship. You used the latter for Room and Board.
you can file the Room&Board income in your Parent's State and home address or the College State.
You must file College State's taxes for your Work Study income, I think. In Ohio, you may have City Income tax,
eg Fairborn by Wright State University.
How might Planned Parenthood advise a Minor
if she hasn't filed taxes yet.)

Well, this is what stood out to me, a Layman,
not a Lawyer.
Hope you find the hypotheticals thought-provoking.


+++++ +++++ ++++++ ++++ +++++ +++++
Here are the bill's phrases by paragraph:

(a)(1) "the State where the minor resides"
(a)(2) "an abortion is performed or induced
...in a State other than the State where the minor resides"

(c)(1) "parental consent or notification ...
would have been required ...had the abortion
been performed in the State where the minor resides"

(c)(2)"a court in the minor's State of residence
waived any parental notification"

(c)(2)" the minor's State of residence...
parental notification required by ...that State"

+++++ +++++ ++++++ ++++ +++++ +++++ THE END
4.29.2005 1:45am
Iron Teakettle (mail) (www):
To A Blogger:

It was intended to be. Please take a peek on the top post of my site for a hint of what really is going on here.
4.29.2005 1:51am
MJ (mail):
wfw,

I think that you get lost in your viewpoint rather than looking at what this law prohibits. The conduct the statute prohibits is an act by an adult, in which the adult intentionally crosses state lines with a minor for the purpose of helping a minor evade a state legal requirement. It doesn't matter what the legal requirment is, this statute targets adults who assist minors to evade the requirement.

The prohibited conduct isn't the receipt of the medical procedure (indeed, the abortion never need take place for a violation of the statute to occur); it's the intentional evasion of the state law requirements that exist before a minor is legally permitted to have the medical procedure.
4.29.2005 8:06am
TheGoodReverend (mail) (www):
OK, fresh off the Con Law exam, here's my take:

(1) The threshold issue is whether Congress has the power under the Constitution to regulate this. Presumably the justification is the Commerce Clause (Art I, Sec 8). Historically, as noted, the Court has been deferential to Congress on the Commerce Clause. However, recent cases such as Morisson and Lopez suggest that the Court is unwilling to give Congress carte blanche: regulation is limitted to channels of commerce, instrumentalities of commerce, or things which have substantial effects on commerce. This law has a "jurisdictional hook"--it is framed in terms of transportation across state lines, specifically in reference to interstate commerce. Morisson and Lopez lacked these. This jurisdictional hook probably makes the law constitutional, but the Court's recent jurisprudence is unclear on the issue. If it doesn't make a difference, the issue would be whether transporting a minor pursuing an abortion without parental notification has a substantial effect on (or is a channel or instrumentality of) commerce. Transportation, typically, is commerce. It is unclear that singling out these circumstances constitute commerce. If Congress does not have the power to regulate this under the commerce clause, the law is probably unconstitutional.

(2) Even if Congress does have the power to regulate this under the commerce clause, the law might be unconstitutional as a violation of the substantive due process rights of the mother under the Fifth Amendment. In Griswold, the Court held that the right of privacy is such a right. In Roe, the Court applied the right of privacy to abortion and set up a trimester framework for state regulation of abortion. In Casey, the court rejected that framework in favor of an undue burden standard--the law would only be upheld if it didn't place an undue burden on the mother. One twist with this statute is that it directly addresses only the adult who transports the minor, but this doesn't change the analysis much because it could still have an undue burden on the mother. Another twist is that the substantive abortion regulation is state law--the law of the state in which the minor mother resides--but the offense is federal. This law itself doesn't regulate abortion. If the state of residence of the minor had no regulations on seeking an abortion, this law would have no effect. Presumably the state law is constitutional--that is, it is not unduely burdensome. Does this law create any additional burden on the mother that might put her burden over the threshold? Probably not. This law only affects minor mothers who live State 1, which requires parental notification (we'll presume with a constitutional exception for judicial notification and the health of the mother), who wish to travel to State 2, which does not have such laws. It is unclear that this law imposes any more of a burden than would State 2 passing the same law as State 1--thus limitting the minor mother's travel options--which would clearly be constitutional. If this law creates no burden at all, it probably does not have to have the correct exceptions for judicial notification and the life of the mother. If, however, the Court considers this law to impose some sort of burden, even if it's not undue, the exception only for the "life" of the mother and not her health is probably narrower than what the Constitution requires.

(3) Although it looks on its face like this law presents an issue with the right to travel, travel is not a substantive due process right but merely a fundamental right in the "privileges and immunities" context that only applies to state law.
4.29.2005 8:43am
Snacktime (mail):
I'm not trying to oversimplify here, but this law seems easily constitutional to me. If it is constitutional for a state to require parental notification before a minor gets an abortion (and it obviously is), I don't see how this law puts any further burden on the right of abortion. The minor already had to notify her parents. If a non-parental adult is trying to transport her out of state without consent, she is simply circumventing notification. It seems to me, as far as the right to abortion goes, the only thing the law does is it closes a loophole to parental notification statutes.

As for the commerce clause issue, I don't think there can be any doubt that this is constitutional on that level - we're talking about traveling across state lines to engage in economic activity (buy an abortion).
4.29.2005 10:36am
Snacktime (mail):
Also some posters are misconstruing 18 U.S.C. 1502, the kidnapping statute. That law makes it illegal when anyone "unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person."

As those words clearly imply, if the minor consents, it isn't kidnapping, no matter what the parent thinks. So if parent says, "don't go do homework with Julie!" but the minor runs off with Julie anyway and they drive across state lines, there is no question Julie is not guilty of kidnapping.
4.29.2005 10:48am
adam (mail) (www):
Let's be clear -- there are two aspects to this bill. One criminalizes transportation, the other mandates consent procedures that abortion providers must follow.

On the first, why do I feel like I'm only one who sees the lack of a health exemption dooming this thing? Post-Casey, post-Stenberg v Carhart, can you actually have a bill that only allows a doctor to use her best judgment and override the double-consent obstacle "if the abortion was necessary to save the life of the minor because her life was endangered by a physical disorder, physical injury, or physical illness, including a life endangering physical condition caused by or arising from the pregnancy itself"?

One the second, I question the constitutionality of requiring the foreign state to notify the minor's parents in the home state when neither state has authorized a parental consent/notification law. Link to states with such laws.

And, actually, it gets worse, because the "actual notice" that it requires of doctors "means the giving of written notice directly, in person". If forcing the doctors to travel to obtain consent isn't an undue burden on the minor's right to abortion -- when, hypothetically, neither the doctor's state nor the minor's requires consent (say, CT to NY) *and* the doctor believes that an abortion is necessary for the minor's health -- well, then I need to retake my Con Law, or stop practicing it.
4.29.2005 11:02am
adam (mail) (www):
In paragraph 3, make that, "requiring THE DOCTOR IN the foreign state". Oops.
4.29.2005 11:05am
phil yo pain (mail) (www):
I am somewhat surprised about the whole discussion. To determine whether some law is Constitutional, all we need to do is to determine if the Congress exceeded the power, granted to it by the Constitution, aren't we?

So, here we see a regulation of something that is clearly an Interstate Commerce - since it involves crossing state boundaries for the purpose of obtaining a certain service. Second, let's see if it violates anyone's rigths? No, does not seem so - if we recognize the legal conceptof a "minor". I.e., if we think that people younger then the certain age must have some "legal guardian" who makes serious decisions for them. Especially decisions about having a potentially dangerous operation that may lead to death of infertility.

Discussion of whether we do need to abolish an idea of a "legal guardian" for the minors - is a separate one. It may be very interesting on its own. An opponent of the idea may argue that minors should be emancipated and allowed to buy tobacco, liquer, give their consent to operations, organ donation, go into binding contracts, marry, vote, enlist in the army, being interrogated by a police and so on. Or, they may claim that while a minor needs a consent of his guardian to have his tonsils removed, it should not be necessary for such a routine procedure as an abortion.
4.29.2005 1:04pm
Brain Droppings:
Ironically, a 16-year old who drives their 17-year old friend across state lines to get an abortion could be prosecuted, but the 17-year old who gets the abortion cannot. The statute imposes liability on "whoever knowingly transports a minor across state lines" (a)(1). Furthermore, a minor transported in violation of this section . . . may not be prosecuted or sued . . . (b)(2). There is no defense of infancy, is there?

While I don't think that it affects the constitutionality of the law, I suspect that such cases will not be uncommon.
4.29.2005 1:11pm
adam (mail) (www):
In case I wasn't clear: there is a way to do this sort of thing constitutionally under present Supreme Court jurisprudence. I just don't think this bill makes it there in the details.

Parental consent laws are constitutional. Federal laws criminalizing certain interstate behavior are constitutional. That doesn't mean every such effort to combine the two will work.
4.29.2005 2:00pm
Wince and Nod (mail) (www):
I am not a lawyer, but I have been reading Restoring the Lost Constitution, so maybe I qualify. Here is my attempt to divine original meaning. This bill does not pass Commerce Clause muster, since abortions are not a trading (original meaning of commercial) activity, they are a medical service, and the Commerce Clause only allows Congress to regulate (original meaning is make regular) activity, not prohibit it. But this bill is justified under the Ninth and Fourteenth Amendments, and since it is designed to protect our rights, it is both necessary and proper. The right to raise one's child as one sees fit is clearly covered under the Ninth Amendment, and the Ninth Amendment, as written, applies to both Federal and State governments. The Fourteenth Amendment authorizes Congress to write laws protecting the rights protected by the Ninth Amendment. I would say the Constitution authorizes States have a parental notification and consent law as well, to protect their Ninth Amendment rights.

I will specify that this is not Supreme Court jurisprudence, it is Randy Barnett inspired analysis. The undue burden and health and privacy issues could doom this law, even under such inspired analysis, since the rights to health and privacy must be balanced against parental rights as well as the residual right of the baby. If I understand the commentary I've read, the Court does recognize the rights of the baby, but does not consider them significant enough to protect.

Yours,
Wince
4.29.2005 3:11pm
Wince and Nod (mail) (www):
Mike,

I invite you NOT to compare the administration with the Taliban. It may cause those who question your judgement to dismiss your expertise.

Yours,
Wince
4.29.2005 5:54pm
Michael Dorf:
The person who posted a vaguely amusing comment claiming to be me (and portraying me as a pompous/ridiculous windbag) is not in fact me. (A Columbia reader of this blog alerted me to the impostor.) Just so readers of this blog know, any further posts purporting to come from "Mike Dorf" or any other variant thereof are not actually mine. I fully agree with "Wince" that the comments purporting to be mine should lead one to question my expertise, and happily disown them as belonging to an impostor who, I hope, only aims at humor rather than more serious mischief.
Michael C. Dorf
Columbia Law School
4.29.2005 6:21pm
Wince and Nod (mail) (www):
Micheal C. Dorf,

I am sorry that someone did that to you. I can find it funny when someone humorously pretends to be Satan, for example. (For the record, I do think Satan is real. I don't think he blogs.) I don't find it funny when someone pretends to be a living human being.

That said, if you do have expertise, I would be most happy to experience it, especially since you have now established that you aren't a pompous windbag!

Yours,
Wince
4.29.2005 7:00pm
Lucy Lawmore:
Commerce Clause: Not remotely a problem. I don't think there's a serious argument that can be made that the present Court will even entertain the possibility of striking this down on commerce clause grounds. The four Morrison dissenters would have to climb on board, as their test is simply a measurable impact on interstate commerce. I don't even think Justice Thomas, whose concurring opinion in Lopez represents the most radical reinterpretation of the commerce clause, would find that Congress does not have the power to regulate commercial transactions that require interstate travel.

Of course, we're talking about abortion here, which means the Court gets to fire up the Ad Hoc Nullification Machine, so all bets are off.

Casey: Absolutely no way this will survive Casey's "undue burden" test. Parental notification laws require just that - notification - and the Court has not held that they empower notified parents to prevent their minor children from getting abortions. The outer limits have not be probed, but presumably parents may only rely on moral suasion, threats of not paying for college, and the like to prevent their children from getting abortions. Thus, the court would immediately strike down any state law analogue to this law. States cannot prevent a child from getting an abortion against her parents' wishes, so no state could ever criminalize the means by which the girl got to the abortion clinic. The fact that a trip would cross state lines raises no novel issues.

In fact, I don't even think this would survive rational basis. If a state cannot prevent a minor from travelling 500 miles in California to get an abortion, there is no rational basis for prohibiting that same child from travelling a quarter of a mile across state lines for one.

Greedy Clerk: is that whole "savin' der babies" thing really necessary? Abortion opponents aren't stupid clods, and by lampooning a genuine desire by many to prevent what they believe to be grave injustice, you expose yourself as close-minded. I do not doubt there is political calculation involved here, but arguing that Congress acted solely out of pure Rovian political maneuvering puts you in Tin Foil Hat territory.

Justices Stevens and O'Connor probably won't be on the Court much longer, and their absence could bring about the end of Casey and Roe. Perhaps one or both will be gone by the time that this law makes it to the Court. Irrespective of the unknowable future makeup of the Court, it is a mistake to ascribe purely poltical motives to those who voted for this law.
4.29.2005 7:24pm
Challenge:
"In fact, I don't even think this would survive rational basis. If a state cannot prevent a minor from travelling 500 miles in California to get an abortion, there is no rational basis for prohibiting that same child from travelling a quarter of a mile across state lines for one."

You have made an error here. The purpose is not to prevent an abortion from taking place, the purpose is to allow the parent consent/notification provisions to have force by withdrawing the option of leaving the state (or at least with another an adult's help). If the state laws allowing for consent/notification are constitutional, then certainly a federal law designed to limit evasion of those laws (by participating in interstate commerce) is rational.
4.30.2005 4:41am
Adam (www):
Challenge, what is the rational basis for imposing parental consent/notification upon a minor who resides in a state that has no such laws and is traveling for an abortion to a state which has no such laws?
4.30.2005 12:28pm
John, ATL:
I have a different take on all this, an intemperate thought I suppose: if a minor is pregnant, she may be a victim of statutory rape (depending on her state's age of consent). If so, this statute could be quite useful to attempt to preserve the evidence of the criminal activity...
4.30.2005 3:53pm
Challenge:
"Challenge, what is the rational basis for imposing parental consent/notification upon a minor who resides in a state that has no such laws and is traveling for an abortion to a state which has no such laws?"

The constitutionality of consent/notification is not in question, correct?

Given this fact, it is eminently rational to lend force to these provisions by preventing evasion of those laws by obtaining an abortion in another state, where parental notification is not required.

What may be open to debate is not whether the policy is "rationally related" to a legitimate state interest, but whether there is a FEDERAL legitimate state interest at all. Given the state of commerce clause jurisprudence, I don't see challenges of the underlying federal interest being successful.

It seems a peculiar position to concede the constitutionality of notification laws, which have to meet a much higher standard than rational basis analysis, but then say that a law designed to impede evasion of those laws does not meet the lower, much more deferential rational basis analysis.
4.30.2005 4:45pm
Adam (mail) (www):
Yes, I concede the constitutionality of such laws; what I question is the federal government interposing them upon states who have determined to not require them for their citizens.

Again, a federal law that required foreign state doctors in non-notification states to notify when the minor resides in a notification state is different from what we've got here:

Hypo: A 17-y.o. college freshman from Buffalo (no notification required) gets pregnant at home, and tells her 18-y.o. boyfriend that after he drops her off at Yale after Thanksgiving break, she's going to get an abortion there, where she won't have to deal with questions from her parents and can convalesce in peace. Connecticut, similarly to NYC, requires no parental notification.

This law would still require the CT doctor to drive from New Haven to Buffalo to notify her parents in person, and I just don't see how that meets undue burden under Casey.
4.30.2005 6:10pm
whoami:

"Challenge, what is the rational basis for imposing parental consent/notification upon a minor who resides in a state that has no such laws and is traveling for an abortion to a state which has no such laws?"



I don't think the act applies in this situation.


"Nonetheless, it seems to raise an interesting possibility. When the Court found various other restricitons on abortion (parental notification and the like) not to be "undue burdens", they made that decision in a world where one possiblity for a young woman was to be transported across state lines by a friend to get an abortion.

So what if the combination of this new law and the old law create an undue burden, but neither individually does? Which law would/could the Court strike down?

Even as I type this it seems ludicrous - in the Casey opinion, the Court very clearly seemed to look at each restriction individually and categorically classify it as an undue burden or not. Combinations of restrictions seemed to have no relevance. So I guess I proffer this post as a what if in which I am interested - are there any analogues in other area of constitutional law that are more plausible/have been addressed?"



Ha! Would the government has a rational basis to in effect remove a "loophole" in the state's laws when that "loophole" was relied upon to uphold the state's laws? Anyone have any thoughts?
4.30.2005 6:12pm
Challenge:
"Again, a federal law that required foreign state doctors in non-notification states to notify when the minor resides in a notification state is different from what we've got here."

Good point. I am not sure how the notification thing works, but I presume it gives at least several days for the parents to discuss the decision with their daughter, so certainly an after the fact notfication is unacceptable. But the issue presented by a commenter was that the law was irrational. It is clearly rational. Could the same means be accomplished differently? Probably. I am unsure--as I think anybody is--how the Court will rule on this because of the inexplicable "undue burden" monster O'Connor summoned in Casey. Given the constitutionality of notification laws, I don't see the Court overruling. But as we all know, the Court is not bound by such conventions as rationality. "Undue burden" means what the Court says it means.
4.30.2005 9:25pm
Challenge:
OK, I looked at the actual bill now. It is not quite as Kerr described it.

''(1) GENERALLY.—Except as provided in sub-
section (b), whoever knowingly transports a minor
across a State line, with the intent that such minor
obtain an abortion, and thereby in fact abridges the
right of a parent under a law requiring parental in-
volvement in a minor's abortion decision, in force in
the State where the minor resides, shall be fined
under this title or imprisoned not more than one
year, or both."

This seems to leave open an interesting possibility. What if a state enacts a law which requires abortion providers provide parental notification consistent with the state of the patient's residency? If the parental rights of notification are not "abridged" then I don't see this law having force.

Adam, it is important to note that this law does not apply for residents of states without notifcation laws, thus your hypothetical is inapposite.
4.30.2005 9:37pm
Adam (mail) (www):
But Challenge, that's only one-half the law. True, it doesn't criminalize the transport. However, s.2432 still requires in-person notification by the doctor or face a year in jail:

"(2) PARENTAL NOTIFICATION.—A physician who performs or induces an abortion on a minor who is a resident of a State other than the State in which the abortion is performed must provide at least 24 hours actual notice to a parent of the minor before performing the abortion. If actual 1 notice to such parent is not possible after a reasonable effort has been made, 24 hours constructive notice must be given to a parent."

Also, fwiw, the notification law covers persons "not older than 18", so 18-y.o's are included as well.
4.30.2005 11:37pm
Challenge:
Maybe I am missing something, but where are you getting the "in-person" requirement?
5.1.2005 4:08pm
Adam (www):
From the definitions: "the term 'actual notice' means the giving of written notice directly, in person". P. 10 of the PDF.
5.1.2005 7:51pm
Challenge:
That still doesn't seem to require the doctor provide "in-person" delivery of the message, but only that that written notice be given directly by a person, rather than through mail.

Feel free to correct me if that's not a possibility. It just seems like it is.
5.2.2005 6:27pm
Adam (www):
(Is anyone else still watching this?)

Here's where the phrase "actual notice" is operative: "(2) PARENTAL NOTIFICATION.—A physician who performs or induces an abortion on a minor who is a resident of a State other than the State in which the abortion is performed must provide at least 24 hours actual notice to a parent of the minor before performing the abortion. If actual notice to such parent is not possible after a reasonable effort has been made, 24 hours constructive notice must be given to a parent.."
5.2.2005 9:29pm
Challenge:
Yeah, but the physician can provide "actual notice" without he or she personally giving the "actual notice." I think the requirement is only that someone give the notification "in-person," not the physician himself. That's my take on it.
5.3.2005 2:15am
Sean Sirrine (mail) (www):
I think I have to agree with Adam that there is a serious problem with the text of the bill.


`(2) PARENTAL NOTIFICATION- A physician who performs or induces an abortion on a minor who is a resident of a State other than the State in which the abortion is performed must provide at least 24 hours actual notice to a parent of the minor before performing the abortion. If actual notice to such parent is not possible after a reasonable effort has been made, 24 hours constructive notice must be given to a parent.


This seems okay, (I think parental notification would pass any test), except what happens if the state the minor is from doesn't have parental notice laws? This section of the bill essentially states that a physician must notify parents if the minor is from another state without any relationship to the laws of the state the minor resides in.

So, a minor in a state without notification laws may travel to another state without notification laws, and the physician must contact the parents?
5.3.2005 2:26am
adam (mail) (www):
Challenge, you may be right. The doctor at Yale calls up Planned Parenthood in Buffalo, and asks them, "Hey, could you send someone over to [address], and hand them this fax that says I'm performing an abortion tomorrow on their daughter?"
5.3.2005 12:12pm
Challenge:
Adam,

I was thinking more of in-person delivery. I see no reason why the delivery person must be a physician or related to abortion in any way.

Sean,

Dont' think that applies:

:''(1) GENERALLY.—Except as provided in sub-
section (b), whoever knowingly transports a minor
across a State line, with the intent that such minor
obtain an abortion, and thereby in fact abridges the
right of a parent under a law requiring parental in-
volvement in a minor's abortion decision, in force in
the State where the minor resides, shall be fined
under this title or imprisoned not more than one
year, or both."

If there is no abridgment of a "right of a parent" to obtain "notification," then there is no offense because the "state where the minor resides" has no applicable notification statute.
5.3.2005 5:53pm
Challenge:
Hmmmm. Nevermind. Two separate offenses. It appears that a physician is required to notify one's parents regardless of the laws of the patient's home state, even though it would not be a crime for someone to bring that minor to that sate. This seems to pretty clearly conflict with the first offense's definition, which only makes it an offense if a "right of a parent" to obtain notification is abridged. I don't think it is out of bounds for a court to interpret the offense consistent with the first definition, but even if it is applied as written it does not constitute an "undue burder" aslong as notification laws themselves do not.
5.3.2005 6:10pm
Adam (www):
I wonder whether there is a Printz-type claim here on the attempt by federal law to command state-level actors to enforce federal dictates beyond that which the state has commanded.
5.3.2005 9:31pm
Challenge:
The catch is that there is CLEARLY interstate commerce involved. Unless you want to similarly de-federalize kidnapping, you are left without much of an argument.
5.3.2005 10:13pm
Sean Sirrine (mail) (www):
Challenge,

I have to disagree with you on whether or not the physician clause of this bill creates an undue burden. What if the state from which the minor has been transported does not have a law requiring notification? Because they do not have this law, they would be unlikely to have a system in place that would allow the minor to speedily request a court's waiver. So, if the minor didn't want her parents notified there is no quick remedy and she must eaither allow the physician to notify her parents or wade through the "regular" pace of the courts.

If you're tired of coming back to this page, I'd be happy to discuss this issue further through e-mail.
5.4.2005 7:46pm
adam (mail) (www):
Wow, that's smart. So, a minor in a notification state traveling to another notification state could, conceivable, obtain judicial bypass to remove the doctor's obligation to notify --

-- but a minor in a non-notification state, traveling to a similar state, would have no means by which to petition courts in either state to remove the federally imposed notice obligation?
5.4.2005 7:50pm