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 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 MCH (draft guidance) establishes that these points need not receive equal emphasis [ nor, presumably can any one be ignored]; further, nothing in the program can be inconsistent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 the money.

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 education.[p.15]?

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

In sum:

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