A new federal move to limit teen abortions
The House considers new out-of-state restrictions.
The abortion issue has long undergirded some of the biggest political questions of the day - from how federal judges are confirmed to whether a politician can credibly compete for the presidency. Now, with little fanfare, the House of Representatives is set to take up legislation Wednesday that would impose new restrictions on access to abortion itself, specifically, in the case of minors.
The bill, called the Child Interstate Abortion Notification Act, or CIANA, would make it a federal offense to transport a minor across state lines for an abortion in order to evade a parental notification law, unless she has obtained a waiver from a judge. The bill would also require a doctor to notify a minor's parent before performing an abortion, if that girl is a resident of another state. The second part also contains provisions that allow a minor to get around parental notification.
In contrast with the ban on so-called "partial-birth abortions," which is not in effect as it faces continued court action, legal experts say that the new teen abortion restrictions have a much better chance of becoming the law of the land and would have broad impact.
"This will impose real obstacles and pain upon real people," says David Garrow, a legal historian at Emory Law School in Atlanta. "And it's a far better than 50-50 shot it'll be upheld rather than struck down as unconstitutional."
Other versions of this bill have passed the House before, most recently in 2002, but the Senate has never signed off on it. Since last fall's elections, though, the Senate has netted up to three more abortion-rights opponents, and supporters of CIANA are optimistic.
Abortion-rights advocates are caught in a bind: The bill goes to the heart of parental rights, an emotional issue particularly for social conservatives. Historically, the public has strongly supported parental involvement in decisions related to minors' abortions, as long as there is a judicial bypass procedure for girls in abusive families.
Furthermore, abortion-rights supporters are focused on preserving the right of the Senate to filibuster judicial nominees - a procedure they believe is crucial to keeping antiabortion judges out of federal courts, and, ultimately, preserving the existence of the constitutional right to abortion.
With a Supreme Court vacancy expected soon, the future of majority support for the landmark 1973 abortion decision, Roe v. Wade, is a central question.
As for CIANA, "this is tough legislation to argue against on its face," says Helena Silverstein, a political scientist at Lafayette College in Easton, Pa., and author of a forthcoming book on judicial bypasses. "The appeal of parental-involvement mandates is so strong, and this legislation appears to bolster that."
What troubles Ms. Silverstein about the legislation is that it rests on the presumption that the judicial-bypass process works.
"The world is not anywhere close to ideal," she says. "There are instances where minors try to secure the right to a judicial bypass and fail. Some judges are not willing to grant a bypass, some refuse to preside. Sometimes court personnel are not aware there's a process and will turn a young woman away."
In all, 32 states require some form of parental involvement in a minor's abortion, with most defining "minor" as someone under age 18. (In a few states, 17 is the age.) Abortion-clinic operators have noted that since the advent of parental-involvement laws in the late 1980s, minors are often having abortions later in pregnancy than they used to, though statistics are difficult to come by. For some teens, the delays have pushed them beyond 14 weeks of pregnancy, the point at which some states require a hospital abortion and other restrictions.
Opponents of abortion rights argue that the bill appropriately encourages more family involvement when a teen finds herself in a crisis pregnancy. On the issue of health exceptions, a major sticking point on much abortion legislation, abortion foes say the bill adequately addresses life-threatening health emergencies.
And, write officials of the National Right to Life Committee in an April 22 letter to Congress, "in a case in which a minor has a genuine serious physical health problem, that is all the more reason that a parent should be involved. Only the parent is likely to know the child's full medical history, and it is likely to be a parent who must recognize and respond to an infection or other complications of an abortion - complications that a parent might well overlook if he or she does not even know that an abortion has occurred."
At a hearing on Capitol Hill last month, the mother of a 14-year-old girl from Pennsylvania told the story of how her pregnant daughter was taken by her boyfriend's parents into neighboring New Jersey, which has no parental-notification rules, for an abortion, which she did undergo.
The woman testified that she knew her daughter was pregnant and that, in fact, "my daughter [had chosen] to have the baby and raise it. My family fully supported my daughter's decision to keep her baby and offer her our love and support."
Under CIANA, the New Jersey clinic would not have been allowed to perform the abortion without parental consent or a judicial bypass.
Opponents of CIANA argue that the bill fails to pass constitutional muster in many ways. Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project, lists three:
First, the bill contains no exception for circumstances when the health of the minor is endangered. The bill does discuss cases when a minor's life is endangered, but health is not addressed. Abortion foes object to health exceptions, saying they are used to cover emotional distress and could be employed for any abortion.
Second, there is no judicial waiver option in states with no parental-involvement laws.
And third, Ms. Dalven says, the bill violates guarantees of equal protection under the Constitution. Specifically, she says, the bill fails by requiring a pregnant minor to comply with her home-state laws in addition to those of the state where she intends to undergo an abortion.