Some teenagers tell their parents everything. Some tell them nothing. They want none of that in Texas. In an effort to discourage adolescent sexual activity, Texas lawmakers have passed a law that requires parental consent for girls under 18 to receive prescription contraceptives. There is more. Health care providers must report to law enforcement officials the identity of patients 17 and under who seek reproductive health care services since sexual contact with a person of this age is illegal in Texas.My first reaction, after all the swearing, was, "Why the hell haven't I heard anything about those laws?" And my shock deepened when I learned that the laws date to 2003 (for the contraceptive prohibition) and 2001 (for the mandated reporting of adolescent sexual activity). I did discover, at least, that the law mandating reporting of sexual activity only applies when the partners are at least three years apart in age.
Only someone brain dead would expect such a policy to have much effect on teenage sexual activity but you can be pretty sure it will have an effect on care seeking behavior in this age group.
The Guttmacher Institute has released two excellent reports examining the issue of parental consent for minors seeking health services. Most states exempt reproductive health services from parental consent laws based on the assumption that it may discourage minors from seeking needed treatment. And research suggests that it does - a 1999 study published in the Journal of the American Medical Association found that a substantial percentage of adolescents have avoided seeking health care because of confidentiality concerns, and a 2002 study found that 47% of adolescents receiving reproductive health care services at public clinics stated that they would no longer seek health care if their parents were notified. (A much, much, much smaller minority said that they would stop having sex.)
A recent Texas study attempts to put a price tag on the public health costs that would result from adolescent girls abandoning reproductive health services as a result of the changes to Texas law. They estimate that approximately 37% of girls currently receiving care would no longer do so, and report:
This would result in an additional 11.45 pregnancies, 7.44 births and 2.29 abortions per 100 teenagers, costing approximately $61,000 per 100 girls.Even the direct-cost estimates seem low to me, actually, because they don't figure in increased costs from pregnant adolescents avoiding prenatal care. Lack of prenatal care is strongly related to an increased risk of birth complications and poor infant health outcomes - and yet, if you're a pregnant 16-year-old who knows the obstetrician will be required to report you to the police for getting pregnant, those distant health outcomes probably aren't as much on your mind as the hell that will break loose at home if the police show up at your door.
Also, the estimated increase in sexually transmitted diseases would cost $980 per 100 teens.
The projected overall cost is approximately $43.6 million per year, Franzini's team reports. Even so, that figure underestimates "the true costs to society because they include only direct medical costs,"
Texas isn't alone in its use of statutory rape laws to discourage consensual sexual activity by minors: in 2003, the Attorney General of Kansas issued an opinion that health care providers must report to law enforcement anyone under the age of 16 who seeks an abortion, prenatal care, birth control, or STD treatment. Fortunately, the Center for Reproductive Rights has been able to secure an injunction preventing the Kansas directive from going into effect while a challenge works its way through the courts.
There's no doubt that some teenaged girls are preyed upon by much older partners. Research indicates that the younger a girl is when she first has sex, the higher the likelihood that her partner is not another adolescent, but an adult. One study found that, among pregnant 15-year-olds, 40% had been impregnated by a man who was at least 20 years old. (Age gaps tend to be significantly smaller for older teenagers.) Age of consent laws, when applied with careful discretion, can be an important tool in protecting girls from exploitation by adult men. And there have been a few shocking, high-profile cases in which reproductive health clinics failed to protect girls who quite obviously needed help. For example, in 1998, an Illinois clinic failed to report a 37-year-old teacher who brought his 14-year-old student and sexual partner in for birth control.
But the Texas law and the proposed Kansas legal interpretation leave no room for discretion. The result is actually less protection for exploited minors, not more:
Peggy Romberg, CEO of the Women's Health and Family Planning Association of Texas, notes that statutory rape reporting among family planning providers has gone up substantially because of changes to Texas law. As a result, law enforcement agencies have been inundated with reports, with most ending up in file drawers with no action taken. "Historically, we [family planning providers] have been the partners of law enforcement agencies in identifying and reporting actual sexual abuse of teens, including by inappropriate adult partners. When we filed a report, law enforcement agencies took it seriously. Now that we are no longer allowed to exercise our discretion, there is a lot more reporting going on, but the police are ignoring most."In 1977, the Supreme Court affirmed minors' rights to access contraception and other reproductive health services in Carey v. Population Services International. The majority ruled that
(a) The right to privacy in connection with decisions affecting procreation extends to minors as well as to adults, and since a State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. Pp. 693-694.The Supreme Court has repeatedly ruled (for example, in Belloti v. Baird and Ohio v. Akron Center for Reproductive Health) that parental notification or consent requirements for minors seeking abortions must be accompanied by a judicial bypass procedure through which minors can avoid involving their parents. The Texas birth control law includes no such bypass; as such, given Carey v. Population Services International, it is probably unconstitutional. Right now, Texas reproductive health care providers are getting around the law by directing all of their federal family planning funds (also known as Title X funds) towards services for adolescents. Title X services have confidentiality mandated by federal law and cannot be superceded or restricted by state laws. Still, that's only a temporary solution. The confidentiality of Title X services is constantly under threat; efforts to undermine Title X are a common pet project of social conservatives. So hopefully, a Supreme Court challenge of the Texas law is underway. Fast. Before Bush gets a chance to put anyone on the Supreme Court.
(b) The argument that sexual activity may be deterred by increasing the hazards attendant on it has been rejected by the Court as a justification for restrictions on the freedom to choose whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S. 438, 448; Roe v. Wade, 410 U.S. 113, 148. Moreover, there is substantial doubt whether limiting access to contraceptives will, in fact, substantially discourage early sexual behavior. When a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some state policy requires more than the unsupported assertion (appellants here having conceded that there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives) that the burden is connected to such a policy.
