The Federal “Child Custody Protection Act” Doesn’t Protect Children

by Neil McCarthy

Anti-choice extremism got even nastier when the US House of Representatives passed the so-called Child Custody Protection Act. The Act, which was supported by Westchester Rep. Sue Kelly (R-Katonah), would make it a federal crime to take a minor to another state for an abortion in order to avoid the minor’s own state’s parental notification law.

Seldom is the idiocy and bitter hypocrisy of anti-choice extremism so transparent. The Act has nothing to do with child custody or parents’ rights. To the contrary, the Act is one of many efforts to block the safe exercise of a constitutional right. Should this bill become law, a minor who won’t talk to her parents and is afraid of talking to a judge cannot even count on the assistance of adult friends or relatives she can trust. “Child Custody Protection Act?” How about “Assisting Teens to Suicide Act”? At least that name would more accurately describe what is going on here.

The Act is also bad law. Although that never stops congressional right-wingers, most of whom as lawyers should know better, let me try anyway. Under the Constitution, states are required to give full faith and credit to the laws of other states. This entails at least two principles. First, states cannot govern the actions of those outside their borders. For example, New York cannot make it a New York crime to commit a New Jersey burglary. Second, however, states must respect the laws of sister states and facilitate their enforcement. Although New York can’t make it a New York crime to commit a New Jersey burglary, New York is obligated to return the burglar to New Jersey if caught in New York.

The Act makes hash of these principles by criminalizing what is legal conduct in the non-notification state. That state allows minors to consent to their own abortions, and doing so without parental notification is legal in that state. The notification state, however, is reaching over its border to govern and criminalize acts which are perfectly legal where they take place.

Extremists typically think the ends justify the means and rarely consider other consequences of their acts. In this case, however, the right wing should think again lest their own ox be gored. In fact, were I in Congress, and were the so-called Child Custody Protection Act the law, I would propose the following corresponding laws.

  • The Job Protection Act, making it a crime for a business to leave a union state for a right-to-work state, in order to flee unionization of the company’s work force.
  • The Revenue Protection Act, making it a crime for anyone to move from one state to another to avoid taxation in the “high” or “higher” tax state.
  • The Environmental Protection Act, making it a crime to transport recyclable items from a state that requires recycling to one that doesn’t for the purpose of avoiding recycling. (The Bring That Bottle Back Act would do wonders for the Jersey shore.)
  • The Auto Safety Act, making it a crime to travel 70 mph on I-95 in North Carolina (where that’s the legal limit) to make up time lost because of New Jersey’s 60 mph limit. (This Act would have the benefit of lowering traffic fatalities on those spring break trips college kids take to Florida, so I would have called it the Child Custody Protection Act if that name hadn’t been taken.)

Neil McCarthy is an attorney who ran for Congress in northern Westchester in 1992 and 1994.

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