Hearing of House Subcommittee on the Constitution: Child Interstate Abortion Notification Act
HEARING OF HOUSE SUBCOMMITTEE ON THE CONSTITUTION: CHILD INTERSTATE ABORTION NOTIFICATION ACT
March 3, 2005
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Mr. Nadler. Thank you, Mr. Chairman.
When we last considered this legislation, I did not believe that the authors could possibly come up with a bill that would be more dangerous, more destructive of the well-being and the rights of young women than last year's bill. I am humbled to admit that I suffered from a paucity of imagination that clearly does not afflict some on the other side of the aisle.
I am really stunned by this latest crazy quilt of restrictions which has obviously but one purpose, to impede the practice of medicine, to ensure that young women will have as few options as possible, and to teach those States, like mine, New York, that do not believe the best way to promote adolescent health and deal with the very real problems these young women often experience is with draconian laws that prevent doctors and caring, responsible adults from helping these young women who may have nowhere else to turn.
Often, that adult is a grandparent, a brother or a sister, or a member of the Clergy. In some cases, the young women may not be able to go to their parents. We all want young women to seek guidance and help from their parents, but sometimes, that may be impossible. Sometimes, indeed, the parents may pose a threat to the life and health of the young woman.
That is what happened to Spring Adams, a 13-year-old from Idaho. She was shot to death by her father after he found out that she planned to terminate her pregnancy, a pregnancy that was caused by his acts of incest. A law that would require her to tell him does not seem to make much sense.
I know that some of my colleagues might not see a problem forcing a doctor to ring Mr. Adams' doorbell to tell him they are planning to perform an abortion on his daughter. There has been longstanding and vigorous opposition to laws, including the Freedom of Access to Clinic Entrances Act, which aim to protect doctors and their patients from possibly violent fanatics.
This bill also uses an overly-narrow definition of medical emergency, one that seems to have been lifted from one of Attorney General Gonzales's infamous torture memos. Quote, ``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 a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself,'' close quote.
This clearly falls far short of the Supreme Court's requirement that any restriction on the right to choose must have an explicit exception to protect the life and an explicit exception to protect the health of the woman. There are many things that threaten the health of a woman that fall far short of endangering her life. The only health threat recognized here is a life-endangering health threat. A health threat that doesn't endanger her life but may be a severe one is not recognized in this exception, and yet, clearly, that is necessary to salvage the constitutionality of this bill under the Supreme Court decisions, if anybody cares about the constitutionality of this bill.
There are many things, as I said before, far short of death that threatens a young woman. She deserves prompt and professional medical care and the Constitution still protects her right to receive that care.
Congress should not be tempted to play doctor. It is always bad medicine for women.
We want to encourage families to work together to face difficult situations and we want to provide young women facing these life-altering decisions with all the help that we can. In an ideal world, loving, supportive, and understanding families would join together to face these challenges. That is what happens in the majority of cases, with or without a law.
But we do not live in a perfect world. Some parents are violent. Some parents are rapists. Some young people can turn to their Clergy, to a grandparent, a sibling, or some other trusted adult who do not feel safe in turning to a parent. We should not turn these people into criminals simply because they are trying to help a young woman in a dire situation.
This bill is the wrong way to deal with a very real problem.
There is also one other major concern with this bill. This bill attempts to say, at least in the provision that was in last year's bill that makes it illegal to, quote, ``transport a minor across State lines for the purpose of getting an abortion,'' unquote, if she doesn't need parental consent or notification in the State where she will get it but she did in the State she is leaving, this tries to use the power of the Federal Government to put the law of the State which she is leaving on her back and make her carry it with her to a different State.
I know of no other law which, in effect, uses the power of the government to enforce the law of one State in the boundaries of another State which has not chosen to have that law. The only other law I can think of that does that is a law that was enacted sometime ago called the ``Fugitive Slave Act'', and that was repealed by subsequent history.
I want to join the Chairman in welcoming our witnesses and I look forward to hearing their testimony. Thank you. I yield back.
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Mr. Nadler. Thank you. Let me ask Professor Myers, in the situation, the very unfortunate situation described by Mrs. Carroll, forgetting CIANA, I counted about five different crimes there--harassment, stalking, interstate kidnapping, conspiracy, assault. Don't you think in that situation that there were a number of crimes committed and that the real problem, or that a real problem--maybe not the only one--is not the absence of this bill but the absence of prosecution and enforcement of existing law?
Mr. Myers. I think you are right that it sounds like there were many other violations. I think one of the problems with the remedies you suggest, prosecution, is they are after the fact, so that doesn't help her daughter----
Mr. Nadler. Well----
Mr. Myers.--and it doesn't help Mrs. Carroll----
Mr. Nadler. Enforcement of this bill would also be after the fact. It is always after the fact. Enforcement of any law has to be after the fact.
Mr. Myers. I think you could--I would hope we could assume that the physicians, as Dr. Seigel said, would try to comply with the law, and if they made an effort to provide notice in this situation, it would have helped to protect Mrs. Carroll's daughter. It seems like in that situation, if we are trying to protect the choice of young women, that that would be one way to further it----
Mr. Nadler. But you would agree that----
Mr. Myers.--requiring notice.
Mr. Nadler.--the police told Mrs. Carroll that there was nothing they could do in the situation. They are probably wrong. They should have, or the D.A. or somebody should have initiated enforcement of criminal law at that point.
Mr. Myers. I think it sounds like that there were violations ongoing, that there were other things that could have been done. In this situation, if----
Mr. Nadler. Thank you very much.
Mr. Myers.--they had required notice----
Mr. Nadler. I only have 5 minutes, so thank you very much.
Dr. Seigel, you have already expressed in your opinion that the doctors did the wrong thing. Talk about, for a moment, and then I have another question for you, the real world situation, not in this extreme situation, but of young women who cannot confide in their parents, or feel they cannot confide in their parents, who are not being, in effect, kidnapped by somebody else, who seek the help of a brother or sister or grandmother or member of the clergy or someone to help them. Do we see those situations now? Are those real situations? Are they more common or less common than this sort of thing?
Dr. Seigel. Well, the truth is that they are uncommon. They are uncommon. The vast majority of adolescents do speak to their parents, not just about abortion. When a girl comes in--we are just speaking about young women today. When a girl comes in and I speak to her and it is related to pregnancy and there is an issue about whether she is going to terminate, have an abortion, my responsibility as a health care provider is to encourage her telling her parent, and if she feels unsafe, it is my responsibility to find out why she is unsafe. Is she being sexually abused at home? Is she worried about physical abuse at home? Is she worried about emotional abuse at home?
I will tell you a very quick story, since you know New York. We have a large immigrant population, and one of my first patients, an arrival from Honduras, had been in New York for about a year. She came in under the guise of coming in just for a school physical. In the course of my history taking, I realized that she hadn't had a period in two or 3 months. A pregnancy test was positive and I gave her her options and she told me that she wanted to have an abortion but she could not tell her parents because she said they were devout Catholics and good girls just don't do this in our country.
I gave her some scenarios that I could tell her mother with her in the room or she could tell her mother with me in the room, but that I would protect her from physical harm. She was concerned that her father would beat her up. And, in fact, she did allow me to tell her mother with her in the room, and as soon as I told the mother that her daughter was pregnant, she got up to hit her, and luckily my reflexes were faster 15 years ago and I was able to stop that from happening.
This is real world stuff, and the things that these girls are worried about occurs every day. Again, it is a minority. The vast majority of my patients do say, yes, this is important, after I explain to them this is a surgical procedure and if there is a problem after, somebody needs to know. Somebody needs to drive you to the hospital. Somebody needs to bring you home. But sometimes it is not the parent that is the perfect person to let in on this difficult situation.
Mr. Nadler. Thank you. Let me ask the last question. The health exception in this bill, which says you don't have to--the health exception is only for life-threatening conditions. Is that, from your knowledge of the state of the law now, the Stenberg decision and others, is that anywhere close? Or let me ask Professor Myers. Unfortunately, we don't have--on our side, we were only permitted one-quarter of the witnesses. We don't have a lawyer here, a sympathetic lawyer, but let me ask Professor Myers--not sympathetic to my point of view.
How can you justify when the Stenberg case of the Supreme Court clearly said you have to have both a life and health exception to allow this sort of, these requirements in a bill in order to render it constitutional, this is clearly only with life-threatening. How can this possibly be constitutional?
Mr. Chabot. The gentleman's time has expired, but you can answer the question.
Mr. Myers. It seems to me from looking at the Supreme Court cases is that when the Court insists on a life and health exception, a broader health exception, as you suggest, they are in situations where the law actually prevents somebody from getting an abortion. In these situations, what we are talking about are notice provisions that the Court has been much more sympathetic to and has upheld in virtually every case because the Court takes the view that a notice, unlike a veto or some other law that tries to actually ban abortions in certain circumstances, doesn't really present a burden on the woman. At least, that is how the courts evaluate it. So I would say that the broader health exception isn't necessary under the Supreme Court cases.
Mr. Chabot. The gentleman's time has expired.
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Mr. Chabot. The gentleman's time has expired, and I think that gentleman asked that same probing question in the last hearing and I think it was basically that the principal objective of the taxicab driver is to receive a fare, not to transport somebody for the purpose of getting an abortion, and so, therefore, probably wouldn't----
Mr. Nadler. Mr. Chairman, if I may comment, with all due respect to Professor Myers, the moment that taxicab driver knows the purpose of the trip, if he is crossing the State line, he is doing it with knowledge and intent. He would clearly be vulnerable under this Act.
Mr. Chabot. I would encourage taxicab drivers not to do that. [Laughter.]
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Mr. Nadler. Mr. Chairman?
Mr. Chabot. Yes, the gentleman from New York?
Mr. Nadler. I just want to point out briefly, especially for Congressman King's benefit, who wasn't here earlier, that in questioning earlier, it was conceded essentially by everybody that the conduct of the people involved with Mrs. Carroll's daughter was not only unconscionable, but violated four or five different criminal laws in existing law.
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