Remarks by Jodie Levin-Epstein
Today's crowded room is due to what the new $50 million
federal abstinence education program is not about. It is not about
consensus abstinence which holds that abstinence is valuable
and needs to be taught; this approach holds, as well, that contraceptive
information for sexually active individuals is as important - including
for those who do not wait until marriage at the average age of 25/27. The
$50 million is about a brand of abstinence which likely does not reflect
current cultural standards, on the continuum of abstinence it is at the
"extreme" - extreme abstinence. It teaches that sexual activity outside
of marriage - at any age - is wrong. Presumably it is as wrong for Members
of Congress between marriages in their 40's as it is wrong for 17 year
old school drop outs.
My task is to explore some legal issues that surround
implementation. I've not been asked to address the political
ironies that abound - conservatives who champion devolution imposing an
8 point prescriptive definition on local education programs; conservatives
who urge federal fiscal restraint creating a brand new $50 million entitlement
for an unproven social program? (nearly ½ billion over 5
years combined state and fed money will be spent on the issue - with no
body of research...). Enough of irony...
Five immediate issues:
What's the meaning of the abstinence education program
definition? The law lists an 8 point program. MCH (draft guidance)
establishes that these points need not receive equal emphasis [ nor, presumably
can any one be ignored]; further, nothing in the program can be inconsistent
with the 8 points. This is helpful guidance. However, numerous questions
remain. E.g. just one:
Programs must teach the "importance of attaining self-sufficiency
before engaging in sexual activity." What does that mean? Must teachers
stress that it is wrong for any age individual to be sexually active until
income enables an individual to be self-sufficient? Ron, if a teacher is
to be consistent with the 8 points it appears she has no recourse; she
must teach that intercourse should await not only a marriage certificate
but also a job that pays more than minimum wage.
Is a program by any other name a program? The 8
point definition applies to an abstinence education program. But
when is a program a program? [Haskins/Bevan p. 15]
Clarity is most achievable if one follows the money. That
is what the statute requires. Ron's illustration of a 10th grade curriculum
is a case in point. If the federal funds are spent on 6 weeks of federally
defined abstinence education in the beginning of the year there is nothing
illegal about then teaching 6 weeks of contraception to avoid pre-marital
births. It is illegal only if both parts are named a single program; if
these two educational activities do not co-mingle funds and are called
separate programs, it is not illegal. A program by any other name spells
not sweet under these rules. The most straightforward approach is to follow
How restrictive is the prescriptive definition?
Not ambiguous are the circumstances under which the prescriptive
definition does not apply. The A-H list applies only to abstinence education.
It does not apply to "mentoring, counseling, and adult supervision" which
may be offered at state option as an alternative approach to abstinence
education. Thus, a state has the option to embark on an array of strategies
that are not at all subject to the 8 point definition. This affords states
flexibility to use their own, rather than the federal, definition of abstinence.
Is the federal law legal? There are unresolved
questions about whether the provision does or does it not fit with other
federal and state law.
Federally, the Adolescent Family Life Act (AFLA), a program
that promotes abstinence, was the subject of over a decade of litigation.
An out of court settlement requires, among other stipulations, that AFLA
abstinence programs be 'medically accurate'. More recently, 1996 law requires
ALFA to adhere to the identical abstinence definition created for the $50
million dollar program. Presumably the rationale for medical accuracy in
AFLA's abstinence programs should be applicable to the $50 million program.
Certainly, it should be safe to assume that proponents of the new program
are reasonable people who find medical inaccuracy unacceptable. This raises
a fundamental legal question - Sec 510(b)(2)(E). Ron - when a student asks
what research supports the assertion that "sexual activity outside of the
context of marriage is likely to have harmful psychological and physical
effects" what can the teacher say? Is there a body of medical research
that upholds this statement? Don't we all need to now know the answer
to this question because if the teacher says there is not any, is she not
acting out of compliance with the definition - and therefore acting illegally
within her program?
And there may well be a set of legal questions at the
state level. To the extent that a state's own laws explicitly or implicitly
expects a standard of medical accuracy in education programs (e.g.Louisianna)
, how should the state respond to the federal abstinence education definition
(E)just discussed? Can it take the federal money? If it takes the federal
money can it reject (e) as in violation of state law?
Even more broadly, when state law mandates pregnancy prevention
information, what is a state's legal position? For example, according to
one study, 11 states require abstinence instruction and also mandate other
information on contraception and pregnancy and disease prevention [CA,
DE, GA, HI, NC, OR, RI, SC, TN, VT, VA]. (NARAL 1996 fact sheet) Ron, however,
seems to assert that birth control information is not allowable as part
of a federally funded abstinence program, that it would violate the "exclusive
purpose criterion" if a program combined abstinence with birth control
Is the mere mention of birth control inconsistent with
the federal statute? Or rather, is the issue what is said about birth control?
Could the federal funds be spent to teach the what and how
of birth control as long as the "when" of birth control is relegated
to the time or times of marriage? Take the case of South Carolina. State
law mandates abstinence education (emphasizing marriage) and pregnancy
prevention education. State law explains that "contraceptive information
must be given in the context of future family planning." However, if South
Carolina's contraceptive education is held to be inconsistent with the
federal statute South Carolina and similarly situated states could not
count these state funds as state match.
Will the federal abstinence provision reduce state
spending on other abstinence/pregnancy prevention programs?
Under MCH, a state must come up with 3 dollars for every
4 federal dollars. The Administration's [draft] guidance requires that
the state's funds be spent for abstinence education as defined in the law
and interpreted in guidance. In my opinion, this restriction reflects neither
MCH law nor program practice.
Whether any states will have any difficulty in coming
up with the match remains to be seen. Some have expressed concern that
a state might cut its own spending on family planning or other services
and shift to abstinence in order to gain access to federal abstinence funds.
But I hope that we can hold Ron to follow through - perhaps with oversight
hearings - to assure that this is not the case. Because as Ron has articulated:
"Congressional intent in funding this new program was not to disrupt any
ongoing programs, including those that
feature birth control instruction or distribution."
--Haskins/Bevon "Abstinence Education under Welfare Reform" p. 16
Abstinence programs are subject to an extreme definition
of abstinence education;
HHS guidance allows some flexibility in emphasis within a
Adherence to abstinence program rules should be determined
principally by following the money rather than the name of the activity;
Law allows greater flexibilty outside of an education program;
Clarity is needed on the ability to provide birth control
information as is done in states with abstinence-only laws
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