The underage, the 'unborn,' and the unconstitutional; an analysis of the Child Custody Protection Act.

• Author: Liebman, Joanna S.

1. INTRODUCTION

   The Child Custody Protection Act (CCPA), 2001 H.R. 476, is currently pending in the House of Representatives. (1) The Act would impose criminal penalties on any non-parent adult who transports a minor across state lines to receive an abortion, if that minor has not satisfied the parental consent or notification laws (2) in her home state. The Bill reads:

   Except as provided in subsection (B), whoever knowingly transports an individual who has not attained the age of 18 years across a state line, with the intent that such individual obtain an abortion, and thereby in fact abridges the right of a parent under a law requiring parental involvement in a minor's abortion decision, in force in the state where the individual resides, shall be fined under this title or imprisoned not more than one year, or both. (3)

   Purportedly, this Bill would deter rapists and child molesters from forcing abortions on their kidnapped victims. (4) However, it would have the very real effect of preventing teenagers from seeking help, even from other family members. In fact, proponents of the Bill rejected an amendment that would have excluded grandparents from criminal sanctions. (5)

   One might take several approaches in assessing the constitutionality of the CCPA; an initial instinct is to challenge the law under the "undue burden" standard articulated by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. (6) Reliance on Casey would be misplaced, however, since the Court in that case specifically found that parental notification or consent laws themselves do not place an undue burden on a minor. (7) If laws requiring a minor to secure parental consent do not constitute an undue burden, it is extremely unlikely that the Court would find the minor's inability to be taken out of state in circumvention of those laws to compose one either. (8)

   So, a different approach [than Casey] is needed, and I will argue that the CCPA would violate the Constitution in at least two clear and distinct ways. First, the Bill as written impermissibly burdens citizens' fundamental right to interstate travel, in violation of the Privileges and Immunities Clause of Article IV of the United States Constitution. Second, the law tramples on well-established notions of federalism and states' autonomy as applied to abortion. In our federal system, states have the right to develop their own abortion regulations within the bounds of Supreme Court abortion jurisprudence. Thus, a challenge to the CCPA need not risk the minefields of United States abortion law under the Constitution; instead, well grounded principles of the right to travel and the ideals of the division of power between the federal government and the states demonstrate the invalidity of the law.

   This note will analyze the validity of the CCPA according to the law governing the right to travel and the requirements of federalism under the Constitution. Ultimately it will conclude that the CCPA is invalid on both counts. Part II of this note will address the state of the law around minors and abortion and will provide a brief background of the proposed legislation. Part III will apply the right to travel law to the Act. This inquiry boils down to the question of whether the Supreme Court's right to travel cases apply to federal laws. As I argue they do, the Bill immediately falls flat on this ground alone. Part IV will analyze how the Bill fares under the constitutional requirements of federalism. This requires answering two questions. First, could Congress pass a federal and uniform parental consent or notification law? If not, then the only way Congress could regulate minors' abortion to this extent is to legislate indirectly through the states. Thus the second question: does Congress have the author ity, under current notions of federalism, to pass laws to help states enforce their laws outside of their own state boundaries? Even if the right to travel cases do not apply to Congress, and the federal government is given more constitutional leeway to regulate citizens than are the states, the answer to this last question will be sufficient to effectuate the downfall of the law.

2. THE CONTEXT OF THE CCPA

   The Bill was first introduced by Senator Edmund Spencer Abraham, a Republican from Michigan, on February 12, 1998. It was urged by members of that party that the law "will protect the most sacred bond that exists, that between every parent and their children [sic] .... We must also act to stop those who decide to play parent to our children .... [T]hese strangers smuggle children across State lines in order to circumvent a State's parental law on abortions." (10)

   It is unclear from an empirical perspective why the Bill's sponsors" have chosen this moment in the history of abortion regulation to push for its passage. Since 1980, abortion rates among teenagers have declined steadily. (12) Fewer minors are becoming pregnant, and fewer pregnant teenagers are choosing to have abortions. (13) Not only is the incidence of abortion by minors decreasing, but sixty-one percent of minors who do have abortions do so with at least one parent's knowledge, (14) and most parents support their daughter's decision to have an abortion. (15)

   Even though the rate of teen abortion is declining many women and girls seeking the procedure must cross state lines. (16) Only fourteen percent of counties in the United States contain abortion providers. (17) This is the harsh reality that the CCPA exploits, and though people routinely cross state borders to avail themselves of another state's more favorable divorce laws or tax codes, (18) conservative members of Congress seek to prohibit minors from taking advantage of more lenient abortion regulations in neighboring states.

   The CCPA regulates specifically only the travel of the person accompanying the pregnant minor. (19) It does not prohibit any conduct other than the travel, and the minor is subject to no penalties of her own under the law. It is possible that the law would be constitutional if its restrictions applied to the activities of minors only. (20) This suggests that limiting the Bill's restrictions to those who accompany minors was in large part motivated by political considerations. Proponents of the law sought to broaden its appeal by stating that its purpose is to prohibit rapists and child molesters from having access to abortions for their minor victims in other states. (21) It is obviously easier to secure support for a law with this purported agenda than for one which simply seeks to limit the reproductive rights of teenage girls.

3. THE FUNDAMENTAL RIGHT TO TRAVEL

   1. As Applied to the States

      The principle of a right to travel predates the Constitution. (22) Article IV of the Articles of Confederation provided: "... [T]he free inhabitants of each of these States... shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state." (23) shall have free ingress and regress to and from any other state. The right to travel freely among the states has clearly been of importance to our system of federalism since our country's creation, as the Supreme Court has regularly recognized. (24)

      A significant body of law exists on the ability of states to curb their citizens' right to travel. The Supreme Court has often found such power to be restricted by the Privileges and Immunities Clause in Article IV of the Constitution. (25) The current leading case outlining the limits on the ability of the states to restrict the right to travel is Saenz v. Roe. (26) While the Supreme Court dealt, in that case, with a statute denying welfare benefits to newly arrived residents in California, the opinion discussed at length the three different guarantees afforded to citizens by the right to travel doctrine emerging out of the Privileges and Immunities Clause. (27) The prong applicable to our question is the second one articulated in the opinion, in which a state citizen "travels in other States, intending to return home at the end of his journey." (28) The Court noted that the Privileges and Immunities Clause of Article IV explicitly provides "important protections for noncitizens who enter a State ... to pro cure medical services," (29) and that any law that burdens the right to travel must be subject to strict scrutiny. (30)

      In light of the ruling in two earlier cases that construe the right to travel in the abortion context become relevant and should be reexamined. In Doe v. Bolton, the Court struck down a Georgia law that prohibited all clinic abortions except those for bona fide residents of the (31) state. The case is mentioned in Justice Stevens's Saenz opinion as an illustration of an instance in which the right to travel trumps state self-interest and in which in-state privileges must be granted to out-of-staters seeking medical attention. (32) With broad language, Justice Blackmun remarked that the Privileges and Immunities Clause of Article IV protects those who enter a state seeking medical care there, stating that a contrary holding would "mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve." (33) Justice Blackmun makes no mention of the interests or laws of the woman's home state, but as the law existed in the pre-Roe (34) world, it can be inferred that many women seeking to take advantage of laws in prochoice states were fleeing their more restrictive home jurisdictions. Thus, under Doe v. Bolton, State B could not prohibit such visits from residents of State A.

      This is exactly the scenario that the CCPA attempts to undermine. The minor leaves her home state to seek an abortion in a new one. Under Doe v. Bolton, the receiving state cannot deny the minor the same access to an abortion it would extend to its own citizens. While the opinion says nothing of extending its holding to...