WRITTEN TESTIMONY OF
RICHARD F. COLLIER, JR.
IN SUPPORT OF
SENATE CONCURRENT RESOLUTION NO. 86
December 14, 2000
By way of background, I am a citizen, taxpayer and voter of New Jersey. My wife and I are the parents of three children. I have been a New Jersey attorney since 1975. I am Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and am engaged in the private practice of law in Somerset, New Jersey. I am also the President of the Legal Center for the Defense of Life, Inc., a non-profit corporation whose volunteer attorneys provide pro bono legal advice and representation in matters involving abortion and euthanasia.
Over the past 15 years, I have had extensive experience and involvement in constitutional litigation and legislation involving abortion issues. Most recently, I represented the New Jersey Legislature in Planned Parenthood v. Farmer, 220 F.3d 127 (3d Cir. 2000) and assisted in drafting two of the amicus curiae briefs that were filed in Stenberg v. Carhart, 120 S. Ct. 2597 (2000). I also assisted in drafting a proposed amendment to the New Jersey Constitution in order to authorize parental notification legislation of the type which was recently invalidated by the New Jersey Supreme Court in Planned Parenthood v. Farmer, 2000 WL 1146351 (N.J. Aug. 15, 2000). This proposed amendment is now the subject matter of Senate Concurrent Resolution No. 86.
Due to time constraints and prior commitments, I may be unable to appear personally to testify before you today in support of SCR-86. However, I respectfully submit the following written testimony in support of SCR-86 and request that it be made part of the official record of your hearing.
Given my field of expertise, I will focus my remarks on the legal and constitutional issues that have been raised repeatedly in the media by various opponents of the proposed amendment. At the outset, however, it is important to step back and look at the big picture, lest the terms of the public debate be dictated by the tiny minority who object to parental notification rather than the overwhelming majority who support it.
Parental notification enjoys overwhelming bipartisan support in New Jersey and in a large majority of the states around the country. This support cuts across all lines relating to abortion; whatever they may believe about the legality or morality of abortion, most citizens and legislators strongly favor parental rights and fiercely resist and resent attacks on parental rights. Given the undeniable physical and mental risks and other potential consequences of abortion, the immaturity and emotional confusion of the pregnant teenagers, the financial and ideological self-interest of the strangers urging these teenagers to undergo abortions, and the lifetime during which parents must deal with the effects of their daughter’s abortion, the wisdom, necessity and popularity of parental notification before abortion are "no-brainers." As last week’s Quinnipiac poll documented, 73% of New Jersey voters favor parental notification — even after four months of non-stop, overblown propaganda by abortion advocates and editorial pages opposing parental notification.
When the New Jersey Legislature passed a parental notification statute in 1999, it joined the ranks of a large majority of other states whose laws provide for notice to parents before an abortion. In other words, New Jersey simply joined the mainstream of public policy. Contrary to the frenzied rhetoric of the extremist fringe of abortion advocates, the requirement of parental notification has neither the purpose nor the effect of banning or restricting abortion. The indisputable fact of the matter is that parental notification has been upheld as constitutional by the United States Supreme Court — which is notoriously aggressive in its protection of the so-called abortion rights — and has been implemented as the law in a large majority of the states.
Thus, the 4-2 decision of the New Jersey Supreme Court in Planned Parenthood v. Farmer on August 15, 2000 was clearly aberrational and removed New Jersey far from the mainstream of constitutional law. The four Justices who foisted this aberration on New Jersey purported to balance the fundamental right of parents to the care, custody and control of their children against the Justices’ own extreme view of abortion policy, which is grounded solely in judicial preference and not in the history or text of the New Jersey Constitution. The outcome of such balancing was a foregone conclusion — the Court always comes down on the side of imposing its own policy preferences.
However, in a democratic society, it is fundamental that public policy is ultimately determined by the people and not the courts or any other branch of the government. The people of New Jersey are overwhelmingly in favor of parental notification and are outraged that four unelected Justices would dare to drive a wedge between parents and their children, especially in a life-and-death situation where parental involvement is indispensable. The people of New Jersey are convinced that the New Jersey Supreme Court is dead wrong and they are determined to restore the original constitutional balance that respected traditional family values. The people of New Jersey are going about this restoration in accordance with the highest traditions of our democracy — they are asking for a public vote on a constitutional amendment which will overturn the unsound decision of the four activist Justices and establish that parental notification is the public policy of this State.
This is the context in which the following objections must be viewed. All of these objections are attempts to sabotage or sidetrack the democratic process. Above all, the objectors are desperately trying to avoid a public vote on parental notification, because they know what the outcome will be. Therefore, they are reduced to attacking democracy itself, suggesting that the people have no right to correct the mistakes of their black-robed masters. But the objectors conveniently ignore the New Jersey Constitution, which explicitly recognizes this right and stipulates how to exercise it. Accordingly, the objections to SCR-86 should be rejected and the proposed amendment should be placed on the ballot for a public vote, which is the ultimate and only reliable test of its conformity with the governing principles and policies of our State.
Objection: Although the United States Supreme Court has upheld the power of states to restrict abortions for minors, it has held that such laws must allow minors to be able to bypass the law in certain cases by obtaining permission from a state court. The proposed amendment contains no such judicial bypass provision.
Response: The premise that the Supreme Court interprets the Federal Constitution as requiring a judicial bypass procedure is false. As the United States Court of Appeals for the Fourth Circuit recently stated in the course of upholding Virginia’s parental notification statute, "the Supreme Court has never held that a parental notification law must include a judicial bypass procedure in order to withstand constitutional challenge." Planned Parenthood v. Camblos, 155 F.3d 352, 355 (4th Cir. 1998), cert. denied, 525 U.S. 1140 (1999). Thus, the need for a judicial bypass procedure is a myth. Because a judicial bypass procedure is not required by the Federal Constitution, the absence of such a procedure from the proposed amendment is not a valid objection.
But even if a judicial bypass were required by the Federal Constitution, it would have no effect on the proposed amendment. The amendment itself is not self-executing; it does not mandate parental notification, but rather it merely authorizes the Legislature to mandate such notification. Therefore, the amendment does not need a judicial bypass procedure; only statutes passed pursuant to the amendment would be subject to such a requirement (if it exists). The wisdom of a judicial bypass procedure can be debated in the future, when a particular statute is proposed. In the meantime, we should not confuse the issue with phony constitutional requirements and the suggestion that the proposed amendment is self-executing as far as notice is concerned.
Objection: The New Jersey Constitution is supposed to be the basic guiding principle of how our state government is structured. It is an abuse of power to amend the Constitution simply because the Legislature disagrees with the Supreme Court.
Response: It is true that the New Jersey Constitution is the basic guiding principle of how our state government is structured. But it is also true that the very same Constitution expressly recognizes the power of the people to change the structure of the government by amending the Constitution. As Article 1, Paragraph 2(a) of the State Constitution recognizes:
All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.
Article 9 expressly authorizes amendments to the State Constitution, and sets forth the procedure for adopting amendments. The first step in the procedure is introduction and passage of the proposed amendment by the Legislature, and the final step is approval by the people, at which time the amendment becomes part of the Constitution. Although the Legislature initiates the process, the final result is not an action of the Legislature, but rather an exercise by the people of their right to alter or reform the government by means of constitutional amendment. If the amendment becomes part of the Constitution, it will not be "simply because the Legislature disagrees with the Supreme Court," but rather because the people also disagree with the Supreme Court.
It is ludicrous to call this an "abuse of power." Far from being abusive, it is simply an exercise of an inherent power in exactly the way it is supposed to be exercised. Many citizens believe that the decision of the New Jersey Supreme Court was a gross abuse of power. The people have the power to rectify this abuse and to bring New Jersey back into the mainstream of constitutional law. It is an abuse to say that the people lack this power. Without this power, how will the people protect themselves from the abuses of an imperial judiciary that claims supreme power for itself? Even the New Jersey Supreme Court has recognized that constitutional rights and powers are conferred by the people and the people can revoke or modify them at any time. See Dickinson v. Fund for Support of Free Pub. Sch., 95 N.J. 65, 86-87 (1983).
It is also nonsense to suggest that the Constitution cannot be amended to overcome a court decision. Putting aside the obvious fact that the Constitution itself says that it can be amended, there is ample historical precedent for amendments to reverse judicial decisions. The Eleventh Amendment of the Federal Constitution was the direct result of the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which has "the distinction of being the first Supreme Court case to be overruled by a constitutional amendment." L. Tribe, American Constitutional Law 174 (2d ed.1988). The Sixteenth Amendment nullified the decision in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895). And, of course, the best example is the Thirteenth and Fourteenth Amendments overruling the decision in Dred Scott v. Sandford, 60 U.S. 393 (1856). The same is true under the New Jersey Constitution. For example, the second sentence of Article I, Paragraph 12 was added by amendment in November 1992. This recent amendment was designed to reverse the ruling in State v. Gerald, 113 N.J. 40 (1988), which limited the circumstances under which the death penalty can be imposed.
Thus, there is a long and venerable history of adopting amendments that reverse court decisions. Indeed, a Trenton Times article dated September 14, 2000 observed that the current proposed amendment "continued a New Jersey trend to amend the constitution to get around court rulings." Far from being improper, this is exactly the way our system of government is supposed to work. As recognized in a recent editorial of the New Jersey Law Journal:
Reasonable people can question the soundness of the 4-2 decision of the New Jersey Supreme Court that applied the New Jersey Constitution and found that a law requiring parental notification where a teen-ager seeks an abortion was unconstitutional. The remedy for an "erroneous" interpretation is an amendment to the constitution.
161 N.J.L.J. 1122 (Sept. 11, 2000). An attorney’s recent letter to the editor of the New Jersey Lawyer also recognized that a constitutional amendment is the proper method of dealing with judicial abuses of power:
If Sen. Cardinale has a quarrel with any decision of the Supreme Court, he has the perfect remedy available — he sits in the Legislature and can propose corrective legislation, even constitutional amendments to change a court decision. Our state constitution is not that difficult to amend.
E. Mulligan, Letter, 9 N.J.L. 1771 (Sept. 11, 2000).
The bottom line is that the proposed amendment is not improper or abusive in any way. The real point of the "abuse of power" objection is that the people will be given an opportunity to decide the issue, and the people are overwhelmingly in favor of parental notification. The entire agenda of those who oppose parental notification depends on imposing aberrant and indeed abhorrent public policy through the unelected and unaccountable judiciary, which is a direct attack on our democratic system of government by the people. It is important to keep focusing on the fact that those who favor parental notification are simply trying to use the normal democratic process to restore the original constitutional balance which is recognized in the Federal Constitution and in the constitutions and laws of most other states.
Objection: The decision of the New Jersey Supreme Court should not be disturbed because the role of the Court is to guard against laws that are unfair and violate individual rights.
Response: It is not the role of the Court "to guard against laws that are unfair and violate individual rights." No one gave the judiciary a blank warrant to roam around the State righting perceived wrongs based on its own notions of fairness, individual rights and political correctness. The function of the Court is to interpret and apply the Constitution and laws adopted by the people of this State and their Legislature, not to create and impose its own aberrational view of public policy.
It is absurd, outrageous and downright dangerous to allow this Court or any court to get away with telling us that the very same New Jersey Constitution which mandates parental notification for juvenile delinquents, see State v. Presha, 163 N.J. 304 (2000), prohibits parental notification for pregnant teenagers facing the greater jeopardy of abortion. This self-contradiction is obviously not constitutional law but rather the arbitrary exercise of raw judicial power. The Court is so intoxicated with its own power and prestige that it no longer even pretends to justify its decisions with consistency, much less any specific history or text of the Constitution. The Court simply imposes its will of the moment, without regard to any principle of logic or law that may check its untrammeled power. The people of New Jersey have the right and indeed the duty to correct such a flagrant abuse of power.
Furthermore, the proposed amendment does not deprive anyone of individual rights. Upon adoption of the proposed amendment, New Jersey citizens will continue to enjoy protection for the same individual rights that are recognized everywhere else in the country. The proposed amendment merely prevents four unelected Justices from using the New Jersey Constitution to disguise their invention of new "rights" which are not recognized anywhere else and which have the effect of nullifying the traditional and inherent rights of parents. Thus, the proposed amendment will restore New Jersey to the mainstream of constitutional law.
The real point behind this objection is the fact that parental notification statutes are valid under the Federal Constitution, and therefore the only hope of stopping parental notification is the New Jersey Supreme Court’s aberrational interpretation of the New Jersey Constitution. Because the proposed amendment takes the New Jersey Supreme Court out of the picture, opponents of parental notification will be deprived of their sole means of overriding the will of the people and imposing their own will by judicial fiat. By adopting this amendment, the people will have established an important precedent for dealing with a judiciary that is out of control. These are the real reasons for the objections to the proposed amendment, and therefore we should keep the debate focused on these reasons rather than the misleading arguments that are being advanced by the opponents of parental notification.
Objection: The proposed amendment violates the New Jersey Constitution.
Response: It is sheer nonsense to say that a constitutional amendment can violate the rest of the same Constitution. Once an amendment is approved by the people, it becomes part of the Constitution (Article 9, Paragraph 6) and supersedes any earlier provisions that are in conflict with it. See Dickinson v. Fund for Support of Free Pub. Sch., 95 N.J. 65, 85-87 (1983); Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 363 n.3 (6th Cir. 1998). If this were not so, slavery and Prohibition would still be the law of the land, and women would not be allowed to vote.
In addition to being absurd on its face, this objection is untenable as a practical matter. The Justices of the New Jersey Supreme Court will not risk the firestorm (and perhaps impeachment) that would ensue if they were to hold that this (or any other) constitutional amendment adopted by the people is nullified or rendered meaningless by the rest of the Constitution. The canons of construction prohibit such a result, and the "legislative history" of this amendment will guarantee that the Court understands its purpose, which is precisely to override the distorted interpretation that subordinates the traditional rights of parents to new "rights" supposedly protected by our Constitution but not found in its history or text.
Objection: The proposed amendment would undo a series of laws enacted over the years allowing minors to consent to medical care for conditions (such as venereal diseases, drug or alcohol abuse, and pregnancy) that might go untreated if they had to tell their parents.
Response: This objection is bogus because the existing laws already can be "undone" by the Legislature at any time merely by a repeal or modification of the existing statutes. The proposed amendment will not change this state of affairs.
Furthermore, the proposed amendment will not "undo" any law because it is not self-executing as far as notice is concerned. The amendment merely authorizes the Legislature to enact future statutes requiring notice in situations where notice is deemed desirable. Thus, the wisdom of notice for various conditions can continue to be debated in the future, and any resulting statutes will remain subject to change by means of the democratic process. The renewal of the public policy debate will be good for society, because many of the existing laws which allow medical treatment without notice to parents are largely unknown to the public. Such laws were imposed by narrow elites at a time when family values were deemed less important and even obsolete. Exposing these laws to the sunshine of public scrutiny will guarantee greater awareness, understanding and acceptance of whatever policies are ultimately enacted into law.
Objection: The proposed amendment lacks an exception for incest and other child abuse and therefore will prevent the government from dealing with such abuses.
Response: The unstated premise of this objection is that constitutional rights are absolute and are not subject to exceptions unless the exceptions are stated in the Constitution. This premise is false, and demonstrably so. Even constitutional rights which appear to be absolute on their face are subject to loss or curtailment by reason of abuse. The First Amendment right of free speech, for example, does not allow one to yell "fire!" in a crowded theater with impunity. This exception does not appear in the Constitution but is universally recognized anyway.
The same is true of parental rights. As the United States Supreme Court recently stated, "the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000). See Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000) (recognizing liability of state employee under federal Constitution for failure to notify parents of a minor’s pregnancy). The New Jersey Supreme Court also "fully recognize[s] the fundamental nature of parental rights and the importance of family integrity." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). But even though parental rights are fundamental, they are still subject to forfeiture by reason of abuse. See Santosky v. Kramer, 455 U.S. 745 (1982); In re Guardianship of K.H.O., supra. And this exception for abuse does not appear in the current Constitution.
In short, it is not necessary to spell out exceptions in the Constitution itself. Indeed, it may be dangerous to do so, because the enumeration of specific exceptions now could prevent the recognition of other exceptions that may become necessary in the future. Therefore, the absence of an exception for abuse is not a valid objection to the proposed amendment.
It is also important to recall again that the proposed amendment is not self-executing. It does not mandate notification, but merely authorizes the Legislature to do so in the future. The wisdom of an exception for abuse can be debated when the Legislature considers a particular notification statute. There is no reason to doubt that the Legislature will address abusive situations, because the notification statute that passed in 1999 not only provided an exception for abuse but also required that such abuse be reported to the Division of Youth and Family Services. See N.J.S.A. 9:17A-1.7(d)(2).
Objection: The proposed amendment will strip away the rights of a disenfranchised minority that cannot protect itself through the electoral process.
Response: This objection is a variation on the "individual rights" theme already addressed above. As noted earlier, the courts do not have a blank warrant to favor "disenfranchised minorities." The role of the courts is to interpret and apply the Constitution and laws adopted by the people of this State and their Legislature.
This objection also overlooks the obvious: minor children are "disenfranchised" by the Twenty-Sixth Amendment to the Federal Constitution and by Article 2, Section 1, Paragraph 3 of the New Jersey Constitution. Because the Constitution itself prevents minors from voting, their inability to vote obviously does not confer on them any right to special treatment under the Constitution. On the contrary, the very fact that minors cannot vote under our Constitution is a fundamental policy reflecting the judgment of our society that minors lack the capacity to make important decisions for themselves. The New Jersey Supreme Court completely ignored this fundamental policy, which is embodied in the express terms of our Constitution, preferring instead to impose its own policy judgment, which is based on neither the history nor the text of our Constitution. As a result, we end up with the anomaly that minors who are not mature enough to make mere political choices under our Constitution are now deemed mature enough to make life-and-death choices without the knowledge of their parents.
Moreover, both the Federal and State Constitutions protect the fundamental right of parents to the care, custody and control of their minor children. Thus, the New Jersey Supreme Court stripped away parental rights when it ruled that parents are not entitled to notice before their children undergo abortions. The proposed amendment does not strip away the "rights" of minor children but rather merely restores the constitutional order that prevailed in New Jersey and most other states before the aberrational decision by four unelected Justices of the New Jersey Supreme Court on August 15, 2000.
Objection: The proposed amendment fails to use the term "abortion."
Response: There is no constitutional requirement to use the term "abortion" instead of "medical or surgical procedure or treatment." Rightly or wrongly, the courts insist on portraying abortion as a medical or surgical procedure or treatment, so there can be no doubt that the language of the proposed amendment encompasses abortion. Indeed, the impact of the proposed amendment on abortion is the very reason it is being attacked so vigorously by the usual extremist advocates of abortion. But obviously abortion is not the only situation in which formal notice to parents may be advisable. As a result, the broader language of the proposed amendment wisely recognizes that parental rights are not limited to abortion situations and gives the Legislature the authority and flexibility to deal with other situations that may arise in the future. The generic language of the amendment will obviate the need to litigate every new procedure or treatment before Justices whose judgment can no longer be trusted due to their track record of hostility to traditional family values.
The broader language of the proposed amendment also prevents the practitioners of abortion from employing their usual tactic of changing terminology in order to avoid the law and conceal what they are doing. Already we have seen radical re-definitions of the beginning of pregnancy so as to justify calling abortifacient medications "emergency contraceptives." One of the abortion doctors who challenged New Jersey’s partial-birth abortion statute admitted under oath that "medical" abortions are not considered to be abortions and are not documented as abortions. In a January 1997 report entitled "The Limitations of U.S. Statistics on Abortion," the Alan Guttmacher Institute lamented that non-surgical abortions are not reported as abortions, especially when such methods are used by private physicians in their offices. This is a particular problem in New Jersey, which does not require the reporting of abortions performed in the offices of private physicians. The introduction of RU-486 and other chemical methods of abortion will only exacerbate the problem.
Thus, the need for the broader language in the proposed amendment is manifest. Only the more generic language will ensure coverage of all forms of abortion, no matter what names they are given now and in the future. And it is especially important to cover newer forms of abortion as they develop, because the risks posed by new methods (especially when practitioners first experiment with them) are unknown, and therefore parental involvement and advice are even more crucial.
Objection: The proposed amendment bars the New Jersey courts from reviewing legislation regarding notification and thus violates the principle of separation of powers.
Response: This recurring objection is based on an early draft of the amendment which was never introduced into the Legislature. The editorialists who keep raising this objection are apparently ignorant of the actual language of the current proposed amendment, which does not contain any restriction on the jurisdiction of the judiciary. Upon adoption of the amendment, courts will continue to be able to entertain lawsuits relating to any statute that the Legislature passes pursuant to the amendment. The only change will be that the courts will not be able to use the New Jersey Constitution to strike down such a statute as unconstitutional.
In summary, I urge the Legislature to disregard the spurious and contrived objections to SCR-86 and to vote in favor of placing the proposed amendment on the general ballot in November 2001, so that the people of New Jersey will be able to exercise their indisputable right to determine whether parental notification should be the public policy of this State.
Thank you for your consideration of these remarks and for your prompt response to the public outcry for redress of the deeply disturbing and fatally flawed decision in Planned Parenthood v. Farmer.
RICHARD F. COLLIER, JR.