Academic journal article Brigham Young University Law Review

Abortion across State Lines

Academic journal article Brigham Young University Law Review

Abortion across State Lines

Article excerpt

In the span of about a year in the mid-1990s, news media featured two stories about adolescent girls and abortion. In examining the somewhat sensationalized accounts of the two stories, one realizes that each could have been presented very differently. The first, from Nebraska, tells of a community strongly opposed to abortion that gathered together to prevent an unmarried pregnant teenager from having an abortion.1 According to the New York Times, the father's family conspired with a doctor, the local sheriffs office and local police, the County Attorney, and the local Juvenile Court judge to deprive the girl and her family of their freedom to choose abortion by kidnapping the girl pursuant to a court order.2 One could as easily cast the conspirators as heroes fighting to protect the rights of both the unborn child and its father by intervening to save the life of an unborn child in the twenty-third week of gestation - now an infant girl described in a quotation in the New York Times as a "darling litlte baby" being raised by the parents of the unnamed teenage girl.3

Pennsylvania provides a contrasting story, with the interveners on the side of "choice" rather than "life." In northeastern Pennsylvania, Rosa Marie Hartford was convicted of interfering with the custody of a thirteen-year-old girl by taking her to New York for an abortion without the knowledge or consent of the girl's mother, who did not even know that the girl was pregnant.4 While Hartford claimed that she did so in an effort to help the girl, the Sullivan County District Attorney argued that Hartford had done so to help her nineteenyear-old son avoid a statutory rape conviction.5 Despite Hartford's efforts, the son faced a jail sentence of up to thirty months.6 Many people (including, apparently, the seven men and five women on the jury who convicted her - and a majority in the U.S. House of Representatives7) saw Hartford's actions as the selfish exploitation of a vulnerable child and a high-handed disregard of the right of the child's parent(s) to determine the medical procedures and cultural values that should play a role in the daughter's life. Kathryn Kolbert, of the Center for Reproductive Law and Policy, and Hartford's defense attorney, saw Hartford as a heroine who facilitated a young woman's lawful choice in the face of an uncaring or even hostile world.8

The Hartford case introduced a new element in the debate over the legality of abortion: Hartford had to take the girl to another state for the abortion. Pennsylvania has a rather strict parental notice and consent law,9 the constitutionality of which has been upheld by the Supreme Court of the United States,10 but three states that border Pennsylvania do not have comparable requirements.11 Thus, even when a state like Pennsylvania has strict parental notice and consent laws, they may be evaded easily in a nearby state where public authorities are sympathetic to abortion rights. In another case, for example, parents in Pennsylvania sued a school district after a school's guidance counselor arranged for high school girls to travel to New Jersey for abortions without informing their parents.12 The New Jersey Supreme Court had declared the state's parental notice law unconstitutional.13 West Virginia, another state bordering Pennsylvania, has a strong parental notice and consent statute,14 yet diere might even have been similar evasions of Pennsylvania law there as well. The lack of published reports of such incidents might merely mean that those involved have not been caught.

The Pennsylvania stories present what on its face is a fairly narrow, technical legal question: can a state like Pennsylvania apply its laws to abortions involving the state's citizens that take place outside the state? This question is likely to become more prominent in the future if the Supreme Court loosens the federal constitutional standards for abortion laws.15 While most readers will immediately think in terms of a possible criminal prosecution, as in the Hartford case, the question also implicates questions of civil litigation. …

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