Misconceived laws: the irrationality of parental involvement requirements for contraception.

• Author: Arons, Jessica R.

Teen pregnancy is caused by sexual intercourse, not by too little birth control....(1)

[I]f we stop at abstinence, we are discriminating against the other young people, close to 85 percent of them around the country, who for reasons that are often outside their control, are sexually active.(2)

Most liberals "begin with the premise that teenagers should not have babies [while most] conservatives begin with the premise that single teenagers should not have sex."(3)

Right to privacy jurisprudence began in the context of contraception.(4) Eventually, that right expanded to embrace a woman's right to choose to have an abortion.(5) Although the right, of both adult and adolescent women, to have an abortion remains highly disputed in the United States, the right to obtain and use contraception to prevent pregnancy is not only accepted by most Americans, it commonly is taken for granted.(6) Given such societal attitudes, it is not surprising that attempts to regulate abortion heavily outnumber attempts to regulate contraception.(7)

Recently, however, the historically monolithic abortion debate(8) has expanded (or has been expanded) to include contraception. One clear example of this expansion is the attempt of abortion opponents to redefine abortion to include contraception when the contraceptive method used is one that prevents implantation of a fertilized egg.(9) They have tried to prey on the uncertainty that inheres in science; to wit, oral contraceptives normally work by preventing ovulation and, thereby, prevent conception.(10) It is possible, however, that when the pill fails to prevent conception, it nonetheless is successful in stopping pregnancy by preventing the implantation of a fertilized egg.(11)

Although many people may agree with the proposition that life begins at conception, this stance does not square with the overwhelming acceptance of contraception in this society.(12) Nor do most Americans equate such contraceptive methods with the variety of surgical procedures that they conceptualize as abortion.(13) Yet, in the last year alone, abortion opponents in Congress tried to defeat bills that would require government health plans to cover the cost of contraceptive prescriptions for their beneficiaries, allow FDA testing of the abortifacient drug RU486, and provide funds to international family planning organizations and agencies.(14) Thus, contraception, the bedrock of privacy rights in America, has reemerged as the newest battleground in the struggle over who will control women's fertility.(15)

In 1977, the Supreme Court extended to minors the right to privacy embodied in the Fourteenth Amendment in Carey v. Population Services International.(16) Specifically, minors have a fundamental right to decide "whether to bear or beget a child."(17) Implicit in this privacy right is the ability to gain access to contraception.(18) Although this holding came in the form of a plurality decision, Carey remains untouched, and numerous subsequent cases have affirmed its principles.(19) Even so, some of the most pervasive recent activities surrounding family planning, both on the federal and state levels, have attempted to prevent minors from obtaining contraceptives.(20)

Unemancipated minors are a particularly vulnerable group. By definition, minors cannot vote.(21) They are not financially independent because they are not deemed legally competent to contract.(22) Finally, although the Constitution does apply to minors, it weighs their rights against those of their parents and the power of the state.(23) Therefore, laws that infringe a minor's privacy receive less than strict scrutiny.(24) When combined with Americans' negative views about teenage sexual activity,(25) these legal disadvantages allow opponents of reproductive freedom to choose minors' access to contraception as a good place to begin making inroads into the more general rights to use contraceptives and have abortions.

The first section of this Note provides a survey of recent political activity in Congress and the states with regard to attempts to impose parental involvement(26) requirements on minors when they try to obtain prescription contraception.(27) The second section examines the alleged purposes of these laws and argues that, although the goals are legitimate, the means employed by parental involvement laws are not even rationally related to their ends when one considers the array of studies that show the actual impact of such laws. In essence, parental involvement laws for contraception fall far short of the "less than strict scrutiny" standard required to justify an invasion of an adolescent's privacy rights. The third section of this Note examines the applicable legal standards and concludes that the laws and policies that reproductive health care workers currently follow strike the proper balance among the rights of adolescents, the rights of their parents, and the interests of the state in both protecting adolescents' health and respecting parents' authority.

SURVEY OF RECENT POLITICAL ACTIVITY

The Federal Level

In 1970, Congress passed Title X of the Public Health Service Act (Title X).(28) This measure created a nationwide system of health care clinics that provide family planning services to anyone who wishes to receive them.(29) Although these services were available to minors from the onset of the program,(30) the growing rate of teenage pregnancy concerned members of Congress who worried that teenagers did not have enough access to these clinics.(31) As a result, in 1978, Congress amended Title X to expressly require that grantees provide treatment to adolescents.(32) In 1981, Congress again amended the Title X program--to require that grantees encourage the minors they treat to involve their parents in making reproductive health decisions.(33)

Subsequent to the 1981 amendment, the Reagan Administration, through its Department of Health and Human Services (HHS), promulgated federal regulations that interpreted the word "encourage" to require Title X grantees to notify parents within ten working days of prescribing a contraceptive drug or device to a minor.(34) The grantees then had to verify that the parents received the notice and, if unable to do so, were prohibited from prescribing further treatment.(35)

Several actions were brought challenging the validity of these regulations.(36) Preliminary injunctions were granted by federal district courts in Washington, D.C.,(37) New York,(38) and Tennessee.(39) The permanent injunctions later granted by the D.C. and New York courts were affirmed on appeal.(40) These decisions rested on the grounds that the regulations were contrary to the clear intent of Congress, which sought to ensure that minors would have confidential access to all family planning services provided under Title X.(41) Because Congress feared that mandatory notification would deter adolescents from seeking treatment for sensitive health concerns, it chose to encourage rather than require parental involvement.(42) The regulations would defeat an essential component of the program--to stem the "epidemic" of teenage pregnancy--and thus they could not stand.(43)

Having lost the battle on the Squeal Rule,(44) those opposing minors' access to contraception refined their strategy and focused instead on changing congressional intent. Representative Istook (R-Okla.) is the current champion of this cause.(45) As of 1999, he had offered an amendment to the Labor-Health and Human Services Appropriations bill (Labor-HHS bill)(46) for the three preceding years that would require recipients of Title X funding to obtain consent from parents prior to prescribing contraception to minors.(47) In its most recent form, the amendment threatened to withdraw funding from Title X grantees for providing contraceptive drugs or devices to minors without first obtaining written consent from a parent or giving a parent actual written notice of the intent to supply the minor with such services at least five working days before doing so.(48)

In 1998, however, Istook's efforts achieved moderate success for the first time. Both the Appropriations Committee and the entire House approved the amendment.(49) On October 8, 1998, the Labor-HHS bill was brought to the House floor solely for a vote on the Istook amendment.(50) despite the Republican leadership's expectation that the measure likely would not be enacted.(51) This effort represented nothing more than the Republicans' attempt to fulfill promises made to socially conservative groups, whose support they needed in the upcoming elections.(52)

During the vote in which the House of Representatives accepted Istook's amendment, lawmakers correspondingly rejected another amendment offered by Representative Greenwood as a compromise.(53) Greenwood's measure proposed having clinics emphasize abstinence, counsel minors on ways to avoid the pressure to have sex, and encourage parental involvement in reproductive health decisions.(54) Similar provisions had been included in past years and currently are standard practice in family planning clinics.(55) Yet in 1998, a majority of representatives seemed to see such a move as promoting promiscuity.(56)

The prediction of the measure's ultimate unpopularity proved correct. The bill was not even considered by the Senate in committee, let alone brought to a full vote on the floor.(57) Thus, it was not included in the final version of the appropriations bill ultimately signed into law by President Clinton.(58) As a result, clinics remain free to encourage parental involvement when minors request contraception but, for the time being, are not required to involve parents. It is extremely likely, however, that proponents of mandatory parental involvement laws will continue to seek federal legislation on this issue. In the meantime, many state legislators are following Representative Istook's lead.

Legislative Attempts at the State Level

Illinois

Istook's...