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Pending: Federal crime to transport underage pregnant teen across state lines?

The Volokh Conspiracy's Orin Kerr wonders whether a bill the House of Representatives passed yesterday is constitutional. Noting that the bill 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, Kerr writes:

"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?"

Of the 15 comments Kerr's recruited so far, the answers are mixed. Garrick Sevilla thinks it could stand the test, writing, "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."

Greedy Clerk, however, disagrees: "Orin, I can say with 99% confidence that the judicial bypass provisions in this law would not come close to being constitutional, 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 ..."

Kerr's open to comments here.

Posted by Product Team on April 28, 2005 at 05:14 PM | Permalink | TrackBack (0)


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