In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the controversy over the “Plan B” birth control pill, and parents’ authority over their children’s sex lives.
The statement at issue:
“A 2010 study found that Plan B is partially responsible for a spike in adolescent STDs [sexually transmitted diseases]. Allowing young girls to buy Plan B directly off store shelves…robs parents of more authority. These are pills that can, in some instances, abort a human life. Surely, moms and dads have a right to know that their daughters are considering these risks.”
– Family Research Council, a conservative advocacy organization, in a statement on its website December 9 commenting on the federal government’s decision not to allow teenagers younger than 17 to obtain Plan B anti-pregnancy pills without a doctor’s prescription.
We checked the Constitution, and…
The notion of “a right of sexual privacy” for teenagers under the age of 18 — a right based on the Constitution and sometimes existing outside minors’ relationship with their parents — has been developing in court rulings since the 1970s. It has been a deeply controversial development, and that fact has just been illustrated all over again in the wake of the federal government’s decision on December 7 to deny any teen under age 17 the option of obtaining, without a doctor’s prescription, the so-called “morning-after pill” — often called “Plan B” because it is a backup method to avoid pregnancy if other contraceptives fail or are not used. The reactions to this denial were very strong, from both sides of the controversy.
The Supreme Court, in the 1977 case of Carey v. Population Services, ruled that minors have a constitutional right of access to birth control methods or devices. Four years earlier, of course, the Court had for the first time recognized a constitutional right to abortion, and that right was not limited to adults. But unlike the reaction to the right to abortion, states have been far less eager to limit teenagers’ access to birth control as they have with access to abortion.
An online report of the Guttmacher Institution, “Facts on American Teens’ Sexual and Reproductive Health,” noted that “no state explicitly requires parental consent or notification for contraceptive services.” It added that two states, Texas and Utah, “require parental consent for contraceptive services paid for with state funds.” Contrast that limited response with the fact that 22 states require parents to consent to a teenage daughter’s abortion, 16 require parental notice, and five require both notice and consent by the parents. (Even with such restrictions on teen abortion, the Supreme Court has required that minor girls have the option of going to a judge for permission to end a pregnancy if there is a clear risk in involving parents.)
Some organizations that support the idea of teen privacy about their sexual activity, of course, are also very active in encouraging parents to communicate in a partnership with their minor children about sexual activity. In many states, large public service advertising billboards have appeared, with the provocative message: “Talk to your children about sex. Everybody else is.” And organizations like Planned Parenthood have active websites using modern media techniques to help minor girls avoid becoming pregnant.
When the issue of parent-minor relationship over morality is viewed through a constitutional perspective, however, the extent to which children are gaining freedom to make their own choices seems constantly to be expanding — but not, of course, without a backlash. Last year, when the Supreme Court ruled that children have a constitutional right — independent of parental control — to buy or rent violent video games that are often filled with sexual violence, it provoked a lengthy and impassioned dissenting opinion by Justice Clarence Thomas, lamenting how much parent-child legal relationships had changed since the nation’s founding. (The Court’s decision, and Thomas’ dissent, in Brown v. Entertainment Merchants Association, can be read at http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.
When women’s rights organizations sued the federal Food and Drug Administration, beginning in 2001, to try to make the Plan B pill available to any purchaser, of any age, they made sturdy claims of a constitutional right of access to such medication without limiting that right to adult women. The federal judge who decided the case, Edward R. Korman, ordered the FDA to lower the no-prescription age for Plan B from 18 to 17, but he did so on the basis of a violation of federal law, saying it would be premature to rule on the constitutional claims.
Following the government’s decision not to make the pills available over-the-counter to teens under age 17 is likely to draw the courts back into the constitutional controversy.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.