Legislation called the Child Custody Protection Act (CCPA) was recently introduced in the United States Congress. The bill seeks to prevent an adult, other than a parent or legal guardian, from transporting a minor across state lines to obtain an abortion. The bill is currently pending in Congress. This means the bill is being considered, but no vote has yet taken place. Whether a vote will take place is not certain.

What are Parental Notification Laws?

Many states have what are known as parental notification laws. These laws require a minor female who seeks an abortion to first notify one or both parents. If one or both parents refuse to consent to the prevent the minor obtaining the abortion, these states allow for a “judicial bypass” procedure. Under this procedure, a minor whose parents do not consent to the abortion may receive court approval to obtain the abortion.

What Does The Judicial Bypass Consist Of?

A minor seeking a judicial bypass must make the request to a judge. The judge considers several factors. These include:

  1. Whether the minor is mature (well-informed) enough to make the abortion decision, without parental knowlege.
  2. Whether the desired abortion is in the best interests of the minor.

Judges are given wide discretion in deciding whether to grant the request. Under state laws, judges must act on the request within a narrow time frame. A minor may appeal a decision denying the request to a higher court in the state. 

Can Minors Cross State Lines to a State with No Parental Notification Law?

Generally, minors who seek an abortion may cross state lines to obtain the abortion. A minor female with an accompanying adult may generally cross state lines from a state with a parental notification law, to a state with no parental notification law. Once the minor crosses state lines, she and the adult are no longer subject to her home state’s parental notification law. Instead, she is subject to the abortion laws of the state to which she has traveled. Since those laws do not require parental notification, the minor may obtain an abortion without such notification.

What are the Elements of a CCPA Violation?

The elements of a CCPA violation are as follows:

  • An adult other than a parent or legal guardian must transport the minor across state lines;
  • The adult must intend that the minor obtain an abortion in the state that is traveled to;
  • The minor must undergo the abortion in that other state; and 
  • The abortion must be performed without the parental involvement or bypass required by the home state.

If all of these elements are present, the adult may be punished by means of a fine, a jail term of a year or less, or both.

Are There Instances When the CCPA Will Not Apply.

The abortion performed in the non-home state may be necessary to save the life of the minor. In such cases, the adult who transported the minor will not be penalized. “Necessary to save the life of the minor” means the life of the minor was endangered by:

  • A physical disorder;
  • A physical injury; or
  • A physical illness.

Are there Defenses to Being Prosecuted?

Yes. An adult who transported the minor may have a defense to prosecution if the adult shows they:

  • Reasonably believed;
  • Based on information obtained from a parent of the minor;
  • That the minor had already given parental notification or received a judicial bypass, in the home state.

In addition, under the CCPA, neither a parent nor the minor is subject to prosecution. Only the adult who takes the minor across state lines is subject to prosecution. 

What is the Status of the CCPA?

The CCPA was first introduced in the US Congress in both the 1990s and the first decade of the 2000s. In each instance, the CCPA passed at least one house of Congress. However, the CCPA failed to become law, either because the President did not sign it, or both houses did not pass it. The CCPA was again introduced in the Senate in 2017. However, the bill was never submitted to the full Senate for a vote. 

The CCPA was again introduced in the Senate in 2019. Again, the bill has not been submitted to the Senate for a full vote. Instead, the bill has been referred to a Senate Committee. For a bill to pass the Senate, the bill must first be approved by the committee to which it is referred. The CCPA has not yet been approved by that committee.

Do I Need a Lawyer for Help with a Judicial Bypass?

If you seek a judicial bypass, you should consider contacting a family law attorney if possible. An experienced family law attorney can explain the judicial bypass procedure, and can represent you during court proceedings.