Contraception Access in Public Schools

I was listening to one of my favorite podcasts, This Week In Blackness Radio, recently, and they were discussing a pilot program in 13 NYC public schools, in which school nurses and health professionals have begun dispensing hormonal birth control, including Plan B, to students. Long-term hormonal birth control normally needs a prescription, and nurse-practitioners and other health professionals are often the ones who prescribe it in clinics and doctor's offices. Plan B is available without a prescription to people 17 and older, and it was approved for young women of any age. However, the Department of Health and Human Services opted not to implement that approval and make Plan B available over the counter for people of any age, after a public outcry which featured, as always, a bunch of men hand-wringing over how soon young women in this country should be allowed to have sex.

I was surprised to hear that the concerns voiced by the hosts and most callers-in to the podcast focused on the rights of these high school students' parents. Questions ranged from how parents should be notified, whether the school should have allowed parents to opt-in rather than opt-out, and whether making contraception available in school undermined parents' ability to speak to their children about sex and about potentially harmful medication. This framing for the story is wrong. Instead, the story should center around whether school dispensing birth control to students who want it allows young women to access their own fundamental rights to privacy and bodily autonomy. With the Supreme Court's development of the fundamental right to privacy in personal intimate relationships, American society has diminished the public's right to legislate the sexual behavior of women and replaced it with increasing individual women's rights to decide for themselves the sexual trajectory of their lives. This change has been beneficial to public health by delaying motherhood, spacing births, and allowing women to have lives in which sexual intimacy and pleasure can play a beneficial role, since risks formerly associated with that pleasure are diminished. Allowing young women to access contraception in schools, especially ones in areas where such access is difficult or impossible, safeguards these students’ constitutionally-guaranteed rights over their bodies and their relationships. The rights of their parents to tell them what to do are essentially unimportant in comparison.

The young women who seek to access birth control at school do so while being protected by the constitutional right to privacy over their sexual decisions and relationships. The Supreme Court's jurisprudence has developed in this area over the decades since the 1960's. The Court has interpreted the due process clause of the 14th Amendment to guarantee rights that the Constitution does not list overtly, which the Court terms "substantive due process" rights. The Due Process Clause of the 14th Amendment states that no state shall deprive a citizen of life, liberty, or property without due process of law. The doctrine of substantive due process basically defines the kinds of things that fall into the definition of “life, liberty, or property”, the things that the government cannot take from you without a good reason. These rights include the right to travel freely among the states, the right to refuse medical treatment, the right to choose to have children as one sees fit, the right to raise your kids as you see fit, and the right to have the sexual relationships you want to have without interference from the government.

 The fundamental right to privacy over sexual relationships was first recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) in a case that guaranteed married people the right to use birth control (which had been illegal in some states until that point). The Supreme Court further articulated the right to privacy, and in particular privacy regarding sexual relationships, in Eisenstadt v. Baird, 405 U.S. 438 (1972), which guaranteed the right to use birth control for people who were not married. This implicitly allowed unmarried people the right to have sex for non-procreative reasons. These two cases are the foundation for the privacy right that guarantees women's right to first-trimester abortion as articulated by Roe v. Wade, 410 U.S. 113 (1973). Finally, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck down sodomy laws in Texas and several other states, holding that intimate sexual acts between adults, even adults of the same sex, are protected by the substantive due process guaranteed by the 14th Amendment. The  substantive due process  right guarantees to the individual the decisions that used to be dictated by “public morality”, usually dominated by Christian Protestant religious morality. Substantive due process takes the personal decisions of women and gays out of the public sphere: women can have sex and not get pregnant if they want. Gays can have sex without fear of criminal consequences. Substantive due process, for many, guarantees liberty regardless of the fact that their lives or choices are different from the dominant view of Christian morality.

Teenagers in this country have their own substantive due process rights, and parents have the right to custody of their own children, and the right to raise them as they see fit. These rights are inherently in tension: how could both a child and a parent have rights over the child's life, and decisions that child makes? First, the fundamental right guaranteed to parents is a right as against the government to raise their child as they see fit, not as against the child. Secondly, some balancing of rights between child and parent is natural in the growing-up process. It simply cannot be that people have no constitutional rights whatsoever until they reach age 18, at which point their parents' total dominion over them ends and their rights are conferred upon them by the government. Instead, as a child reaches sexual and social maturity, that "child's" right to a life of her own necessarily increases, while her parent's rights to determine her fate decrease. The entire point of fundamental rights is that they are fundamental: they guarantee activity that is essential to the human experience. They guarantee rights that allow people to live their lives as they see fit. Teenagers are not exempt from those experiences or goals, or those rights.

 Schools that provide contraception to young women without involving parents (except to let them opt-out of the program) are respecting young women's rights to control their fertility, their ability to access their educational and career goals, and their own health care. Focusing the discussion over this pilot program on the parents' rights to their children's fertility or medical decisions is tantamount to arguing that 17 or 18 year old women in high school don't know what's good for their own lives and bodies.  The only way this argument makes sense is if a 16 or 17 year old girl is too stupid to know what being pregnant means, or to weigh the costs and benefits to having sex, or to take medication with potential side effects. Obviously an attempt to access birth control by a 16 or 17 year old discredits this assumption: a young woman in that position has weighed the costs and benefits to hormonal birth control and to having sex, and to pregnancy, and decided that she wants to have sex but not get pregnant regardless of any side effects of the Pill. Since 1972, this country has recognized her Constitutional right to do just that.  Young women are fundamentally entitled to the responsibility over their own bodies and lives that access to birth control gives them. They are also fundamentally entitled to privacy, which means they get to decide for themselves what people in their lives get to know their decisions. We should trust women with their own health as well as with their knowledge of their own family dynamics: the decision to talk about birth control is as much a young woman’s right as the decision to take it.