Criminalizing Interstate Abortion Travel: Congress Targets People Who Assist Minors in Trouble

Two weeks ago, the Senate passed a bill making it a crime to take a minor across state lines to help her obtain an abortion without having to notify her parents. Under the bill's provisions, if the minor's state of origin makes parental notification a prerequisite for access to a legal abortion, the crime could be punished by up to a year in jail.

The bill, moreover, will likely become a law relatively soon. The House has already passed its own version, and the President expressed enthusiasm for the enterprise. He said that "I appreciate the Senate's efforts to preserve the integrity of state law and protect our nation's families," and he indicated that once the House and Senate reconcile the differences between their respective versions, he will sign the resulting bill into law.

I have elsewhere criticized consent and notification requirements for presuming that under-age girls should remain pregnant when they prefer not to talk to their parents about abortion. In this column, I will suggest that by criminalizing interstate travel to facilitate an abortion, the bill currently under consideration violates the fundamental right to decide whether or not to take a pregnancy to term.

Parental Notification Law

In an overwhelming majority of states, the law requires that before a minor female may obtain an abortion, she must first notify her parents of her plans. In some of these states, the law also demands parental consent for the procedure. Such measures find support among a large number of voters - many of whom are pro-choice - because voters believe that when a young woman becomes pregnant, she faces a crisis that calls for help and support from the people who love her most.

Because our laws generally limit minors' rights - and subject under-age Americans to parental authority - parental notification laws strike many people as a legitimate protection for parental governance. Just as minors may not vote or drink alcohol, they also may not seek a major, life-altering medical procedure without parental input.

The U.S. Supreme Court approved even parental consent laws in Planned Parenthood v. Danforth, provided that a young woman has the option of appearing before a judge and persuading him either that she is mature enough to make the termination decision without consulting her parents or that terminating the pregnancy would be in her best interests. Such a "judicial bypass" opportunity is essential, the Court has held, for young women whose parents might not be caring nurturers.

Furthermore, in Ayotte v. Planned Parenthood, the Court unanimously struck down a law that required parental notification without an exception for the health of the minor. In an emergency, a young woman may not be compelled to delay necessary medical treatment to comply with notification requirements.

The Interstate Abortion Regulation Bill

The bill that the Senate passed, and that the President has promised to sign, prohibits people from helping a minor avoid parental notification requirements by leaving the state.

Under existing law, a minor may enlist a sympathetic adult to travel with her to a state that permits abortion without parental notification. The bill would therefore close a loophole through which a minor living in a notification state can presently terminate a pregnancy without first appearing before either a parent or a judge.

Because crossing state lines for medical care implicates the federal interest in regulating interstate commerce, Congress may initially appear well-suited to address this gap in state parental notification regimes. But there is a glitch: The substance of the law may run afoul of the constitutional right to abortion.

The Right to Abortion

In Roe v. Wade and Planned Parenthood v. Casey, respectively, the Supreme Court recognized and affirmed that a woman has the right to terminate her pregnancy. The right has never been absolute, however, and its legally-accepted limitations have expanded over time.

The right does not extend beyond fetal viability, for example, and it does not preclude measures intended to "inform" the woman's choice - including waiting periods and informed consent sessions in which the woman might hear about the gestational age of the fetus, along with other facts she would prefer not to know.

The law may not, however, place an "undue burden" on a woman's right to have an abortion. Under Casey, an undue burden happens when "a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The language of "purpose or effect" is significant. It means that even if the real-life impact of a regulation might turn out to be negligible, the Constitution will not abide a law whose objective is simply to frustrate access to abortion.

In the Court's words, "[a] statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it."

Singling Out Abortion: The Statute's Purpose Is Clear

It is seldom easy to determine with any certainty the goal or objective of a legislature in passing a particular bill. Laws often reflect a compromise between different groups, so that no one "purpose" can even be said to animate the legislation. And when a law appears to implicate constitutional rights, legislators might take special pains to invoke pretextual rationales rather than articulate the actual driving force behind the law.

In some cases, however, the purpose of a statute is plain. And the interstate abortion regulation bill passed by the Senate last month is an example of a statute whose purpose is plain.

This bill singles out the intent to facilitate a minor's undisclosed abortion - even when the abortion will be performed in a state that permits undisclosed abortions - for criminal penalties. The purpose is to burden a woman's ability to terminate her pregnancy.

But What About Parental Notification Laws? If They Are Valid, Isn't The Bill?

Readers might wonder how the Senate bill could be said to violate Roe and Casey when the parental notification statutes themselves have survived constitutional challenge. After all, aren't they different versions of the same basic idea?

The answer is "Not exactly."

When the Supreme Court upheld parental notification laws, it said that states have an interest in encouraging parental input when a minor is considering abortion. A minor's right to abortion, then, is not quite so robust as that of an adult woman.

But even if a minor who has not notified her parents lacks an absolute right to a pre-viability abortion, this fact does not entitle the federal government to single out one class of people for criminal penalties, based on their intention to help a pregnant teenager travel to a place that does not limit abortion.

In other words, the Senate bill regulating interstate travel for abortion treats the abortion procedure differently from other legal medical procedures, even dangerous ones, and other legal activities.

A Key Contrast: The Mann Act Versus the Senate Bill

It is useful here to compare the Senate bill with an analogous federal law, called the "Mann Act." The Mann Act says that "[w]hoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title or imprisoned not more than five years, or both." (Emphasis added.)

The Mann Act thus targets crimes. In contrast, the procedures the Senate bill targets are not only legal, but constitutionally-protected, under Roe and Casey.

To examine the Mann Act alongside the Senate bill regulating interstate abortion is therefore to see that Congress is singling out abortion in a manner that reflects hostility ordinarily reserved for criminal conduct.

A Parallel: The First Amendment's "Fighting Words" Doctrine

To understand the constitutional difficulty in singling out the facilitation of abortion for such distinctive criminal treatment, consider a parallel to the First Amendment doctrine known as "fighting words."

Under Supreme Court precedents, "fighting words" are an exception to the First Amendment's protection of freedom of expression. The Court defines them as words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace," and the law may prohibit them without violating the First Amendment.

Notwithstanding the fighting words exception, however, the Supreme Court, in R.A.V. v. City of St. Paul, struck down a law that imposed penalties for erecting symbols on public or private property that would predictably arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. In the particular case at issue, the defendant had been prosecuted for burning a cross on an African-American family's lawn.

In R.A.V., a majority of the Court specifically found that even if all of the expression regulated by the challenged ordinance indeed qualified as constitutionally-unprotected "fighting words," for First Amendment purposes, the ordinance nonetheless could not regulate such words in a manner that discriminated between different messages on the basis of their content or viewpoint - penalizing some, while leaving others alone.

To penalize racially (or otherwise) insensitive fighting words, the Court reasoned, would be no different from penalizing racially insensitive ideas generally. Or, put another way, discriminating against thoughts and speech expressing a particular idea - even when the speech is of a special, sub-protected variety - converts legal regulation into constitutionally-prohibited censorship.

In the same way, minor abortions are a special category of abortion that receives a lesser degree of constitutional protection than adult women's abortion. (Unlike fighting words, of course, minor abortions may not be banned outright). A statute may not, however, deliberately take aim at abortion in a manner that expresses hostility to that procedure, as compared to all other legal procedures and activities for which people travel to distant states. A law that does so, has the purpose of placing a substantial obstacle in the path of women seeking an abortion. And that is precisely what the interstate abortion regulation bill does.

Legislating Against Unapproved Travel By Minors, But Only For Abortion

In support of the bill, Kentucky Senator Mitch McConnell said, "no parent wants anyone to take their children across state lines -- or even across the street -- without their permission." Notably, however, federal law does not intervene in street-crossing or in the many other, more significant legal activities for which minors and adults cross state lines.

In sum, it is to punish those who help young women get abortions that federal law is preparing to step in. And such targeting implicates abortion rights in the same way that the "fighting words" statute in St. Paul implicated the freedom of speech.

The Senate bill violates the Constitution, and Congress should accordingly shelve it. Failing that, the courts should invalidate it.