The Supreme Court held in Griswold v. Connecticut (1965), that a woman's, and by extension, a married couple's constitutional right to privacy included the right to purchase, receive advice about, and use, contraceptives.
Roe v. Wade (1973) and Planned Parenthood of S.E. PA v. Casey, (1994) held first that a woman had a constitutional right to have an abortion, and second, in Casey, that this right could be made subject to certain burdens, as long as they were not "unduly" burdensome, whatever that might mean.
One of the burdens allowed in Casey was that teenagers had either to ask a parent for permission to have an abortion or ask a judge, the so-called judicial bypass, as where her father was the father of her fetus, or would otherwise inflict damage in refusing, or unreasonably withhold consent, or coerce, until too late.
Now a seemingly new legal wrinkle crops up.
Suppose a teenager wants to obtain contraceptives, a right which cannot be constitutionally eliminated by the state, under Eisenstadt v. Baird (1972).
But suppose that the teenager who is or wishes to be sexually active and protective at the same time is a federal dependent, the daughter, say of a member of the armed services, the diplomatic corps stationed overseas, etc., covered by a government health plan.
Can the government require, as a pre-condition to prescribing or providing contraceptives that the young lady notify a parent?
Suppose instead of a government rule for federal dependents, the government supports, by providing funding subsidies, local health departments and clinics within the fifty states. Can the U.S. attach strings to its money, such that a local, federally funded (in part) health agency must enforce a new federal rule prohibiting contraceptives for teenagers unless a parent is notified?
To what purpose and effect?
To deter the teenager from having unsave sex at risk of disease or pregnancy?
Is that a proper function of government, to tell citizens when they may begin to have consensual sex with a partner? How about if the government tried to tell an individual when he or she may pleasure him or her self without a partner? Is this any of the government's business?
Would it be legal for the government to prohibit cross-racial pairings for purpose of friendship and love? Not under Loving v. Virginia, the case that prohibits anti-race-mixing statutes as an equal protection violation. So, if the government may not regulate your romantic choices by race, under Loving, or gender, under Lawrence, then why should it have the right to burden your decision as to the age that you choose to exercise your sexuality? Is this a fundamental right? Why wouldn't it be, considering how intimately personal, private, and important it is?
Doesn't this seem to you as though your neighbors are telling you how to live? Neighbors, that is, acting through their government representatives, legislators and administrative agencies.
What kind of people feel it's okay to tell you with whom to relate, how much to relate, and when to relate?
Isn't sex the deepest form of communication, protected by the free expression guaranty of the First Amendment?
Aren't we promised liberty in the pursuit of happiness? Lawrence.
If so, then how can the government prescribe regulations for teenagers? Is there something about teenagers that makes them different than adults? Yes, we know there a maturity differences of different types: biologic, economic, social, etc. But don't teenagers have other constitutional protections, such as the right to be let alone? Privacy? Not to be subjected to unreasonable searches and seizures? Drug testing as the price of participating in high school clubs and sports? Here's where the water becomes murkier, because, depending on the context, teenagers rights are not as well protected as adults.' The leading case on teenagers' expressive rights is Tinker v. Des Moines School District (1969), where the school tried to ban students from wearing anti-Vietnam war armbands. The Court held that students had constitutional rights under the First Amendment to express themselves, at least so long as they weren't being disruptive or distractive.
Can the teenager tell her government to mind its own business and to leave me alone? That this is a personal, private decision, how I wish to exercise my own sexuality? That it's like my religion? None of the government's business? And besides, what business is it of yours whether I choose to use contraception? And that notifying my parents, who, let us presume, may object, have no say in the matter? That if I get pregnant because I didn't use contraceptives they'd be sure to find out and this is a constellation of problems I'd like to avoid?
Suppose the teenager knows quite clearly that her parents object to her behaving sexually, especially with a certain boy they don't like. Why should government take sides in this family dynamic?
Does government really care?
Doesn't government have more serious concerns to worry about, such as war and peace?
Why would government care when you decide to engage in sexual relations? Why should it care?
Oh, I know that there a plenty of people who don't approve of anything, it seems, but why should I care about them. I mind my business and they should mind theirs. But suppose there are a majority of them and they get our government to pass a law that restricts my liberty of privacy and personal choice? Such as my choice of friends and partners for communicating with profoundly and intimately? Is this right? Do the neighbors have the right to peek in your bedroom?
They didn't in Lawrence, so why should they have this right in the case of all of the millions of American teenagers who engage in various degrees of relating sexually, from flirting to 'going all the way'? Is this what makes teenage sexuality such a national concern that government is justified in regulating it? Under what power? Commerce? Query. This seems doubtful, but if the Civil Rights Laws passed under the Commerce Clause (Katzenbach v. McClung - Ollies BBQ, and Heart of Atlanta Motel), I wouldn't take anything for granted. Teenagers use the telephones a lot. Does that federal hook, a channel of interstate commerce provide the power? A stretch, but I've been surprised before by logic.
How about the Spending Power, for the General Welfare? This seems more likely. A lot of federal money comes with strings attached. The question is whether the string or 'catch' is legal in the constitutional sense.
Perhaps you can think of other issues. That's what Con-law is all about, folks ruminating over a question until an idea occurs that seems to make sense, at least at first glance, until the balloon is burst by a counter-idea. It's fun.
The Teenager would need a constitutional right to be able to tell the government to buzz off. Meantime she wouldn't be able to obtain her much needed, apparently, contraceptives, from her federally funded health plan.
Suppose the government decided that pharmacies were important to the national health, and decided to help with the rent, which pharmacists might like. But suppose the hook in the bait was that the pharmacy could not sell contraceptives to people under eighteen? Otherwise no subsidy for the pharmacist. Customers constitutional rights to obtain contraceptives under Eisenstad v. Baird, (1972) would be subverted by government under the Spending Power.
Does she already have it? By extension of Griswold, Roe, Casey, Lawrence, and other cases?
Here's the Forbes article reporting on the issue, which inspires this discussion.
Which way do you think the Supreme Court would or should rule? For or against the teenager? Or her parent(s)? Or the government? Or some religious principle? Or moral principle?
How much does your answer depend on calculating who sits on the Court, what administration is in office, and what vacancies, and nominees, may come up?
It gets complicated in a hurry, doesn't it?
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