January 31, 2006

Requiring health care professionals to report underage sexual activity?

The NYT reports:
A federal trial opened here Monday over whether a Kansas law prohibiting virtually all sexual activity by people under age 16 means health care professionals and educators must report such behavior to state authorities, which some say would stop many teenagers from seeking contraception or treatment for sexually transmitted diseases.

The class-action lawsuit stems from a 2003 opinion by the Kansas attorney general, Phill Kline, a conservative Republican who has developed a national reputation for fighting abortion....

Mr. Kline's interpretation of the law focused mainly on the reporting duty of abortion providers, arguing that any pregnant, unmarried minor had by definition been the victim of rape or abuse. But it included a broad mandate for reporting whenever "compelling evidence of sexual interaction is present."...

"If they know what they tell me is reported, they simply won't talk," said Beth McGilley, a Wichita therapist who is among the plaintiffs, referring to both teenage clients and adults who often consult her about their children's sexual exploration.
It's a harsh policy, but is it unconstitutional?
Bonnie Scott Jones, a lawyer for the Center for Reproductive Rights in New York, which is representing the plaintiffs, said in her opening statement that Mr. Kline's "dragnet approach" to amassing information on under-age sex violated minors' privacy rights and the Constitution's equal protection clause, and that it "seriously endangers the health and well-being of adolescents."...

Steve Alexander, an assistant attorney general defending the suit, said the Kansas statute meant that those younger than 16 could not consent to sex, and that those violating the law forfeited any privacy rights.

"Illegal sexual activity by minors can lead to S.T.D.'s, unwanted pregnancies, abortion, depression, mental illness," Mr. Alexander said. "To pretend otherwise is foolish."
Surely, you don't want to pretend anything foolish.

Actually, I'd like to see more of what the legal arguments are here. It looks as though the case is mostly about interpreting a state statute, but there is also a constitutional attack. Presumably, the constitutional attack is both part of the argument for narrowly construing the statute and a device to get the case into federal court. Shouldn't the federal court abstain and let the state court interpret the state statute?

29 comments:

Crazy Politico said...

I belive they probably added the equal protection arguement strictly to get it into federal court, since the Kansas courts would in all likelihood uphold the law.

That shouldn't stop the feds from dropping it back to the state though.

Steve Donohue said...

Abstinence is generally the best policy in these situations.

John in Nashville said...

I wonder if the plaintiffs raised a "compelled speech" issue under the First Amendment. That would furnish a basis for federal jurisdiction and, unless these plaintiffs were being prosecuted by the state, would possibly avoid abstention.

Nick said...

What about Dr. - Patient Priveledge? That is generally hold to be sacrosact unless there is a strong compelling state reason. One reason has been held to be that doctors have to report gun shot wounds to the police. But are the reasons here really compelling enough to destroy that priveledge?

Ann Althouse said...

The doctor-patient privilege is just a matter of state law. If the state chooses not to give it, that's the end of it.

reader_iam said...

I won't go on, 'cause it looks like this is shaping into a real law-discussion thread. But as non-lawyer, reacting to just the idea of the law itself, may I quote Dickens (out of context, granted)?

"...The Law is a Ass"

Pastor_Jeff said...

As a parent, I would like to know if my 13-year-old daughter had an abortion. Planned Parenthood doesn't want me to know, even though that's prima facie evidence of statutory rape.

It doesn't really matter whether the law stands or not because Planned Parenthood will continue to turn a blind eye, encourage girls to lie, and evade and ignore notification laws.

I suppose if I had a $100 million abortion business, I'd fight notification laws, too.

Pastor_Jeff said...

Just to be clear, I agree the Kansas law criminalizing all underage sex is extreme.

It's a shame that their stupid over-reaching means that we will lose an opportunity to discuss a very real problem.

Bruce Hayden said...

Health care providers in most, if not all, states already have a duty to report suspected abuse. That presumably is considered a compelling state interest, sufficient to overrule doctor / patient confidentiality.

I suppose that you could make the argument that this differs because of the privacy interests of the kids. But as one poster has pointed out, an abortion is prima facie evidence in many states of statutory rape, which is typically a felony, as is child abuse.

As the father of a daughter, I would want to know if she had an abortion for just this reason. I would want to know who the guy was, so that if he were a bit older, I would (try to) make sure that he was arrested and tried for statutory rape, at a minimum.

To this day, I fail to see why abortion is the one medical procedure where a parent is not legally required to be notified. There are real health issues involved, arguably much greater than, for example, tattoos which typically require parental permission, and the parents are supposed to deal with this in the dark.

I can just see it. A doctor tells parents that their daughter has bleeding and maybe sterile, but can't tell them why.

Indeed, sex and abortion are probably the only places where there is a doctor / patient confidentialty that excludes the parents.

It makes no sense to me whatsoever, esp. because, as noted, in many cases the whole situation is a result of the commission of a felony.

me said...

Why is the fact that 14 year old is pregnant prima facie evidence of statutory rape? When two teenagers (under 18) have sex, there is no statutory rape. The fact that a 13 y/o is pregnant is prima facie evidence only that she had sex.

me said...

Unless Kansas is saying that both underage parties stautorily raped each other? That would be funny if they started locking up all the kids -- maybe put a scarlett A on their shirts too.:)

Pastor_Jeff said...

Me - ... because according to Kansas law, a 13-year-old cannot legally consent to sex. Age of consent laws are meant to protect minors - just as a 13-y-o cannot get a tattoo or ear piercing without parental consent.

Since pregnancy is prima facie evidence of sexual activity, that's statutory rape.

RogerA said...

Bruce Hayden: at least in Washington State, not only health care providers, but teachers, day care workers, health district officials and several other groups are mandated reporters of possible sexual abuse.

EricP said...

Pastor_Jeff I think that million dollar question is: If a 13 yo girl has sex with a 13 yo boy, wouldn't they both be guilty of rape? Would they both go to jail?

It has been a while since I was in that age group but I know at least a third of my highschool of both genders would have gone to jail before graduating if this law was in place.

me said...

Pastor Jeff said: "because according to Kansas law, a 13-year-old cannot legally consent to sex."

Right, I get that, and it certainly would be statutory rape is she was impregnated by a person over 18 (or 16 in this case?), but what about the (probably far more common) circumstance where she's impregnated by a 14 year old boy? Are they both guilty of statutory rape? And if so, isn't that sort of funny (and ridiculous)?

Stacy said...

As a healthcare provider I just don't think it's feasible to have us report ALL underage sexual activity including activity between minors. That seems overly burdensome and unrealistic.

First of all, healthcare providers have enough to worry about, enough paperwork and filings to do for the state without being hall monitors. We report when we think kids have been abused physically or sexually by people over 18 or have been neglected by caretakers. If it were a case of a minor and someone over 18, then we would have a duty to report, but it's not always so easy to determine that as many teenagers are unwilling to spill the beans to us for obvious reasons. Everyone here seems to think its so black and white and its not.

Also, it gets tricky when you say all "sexual activity" between minors- while we understand that minors can't consent by the nature of their being minors, we view it differently than sexual activity where one of the participants is older (say 16 or older) for obvious reasons).

To say that healthcare providers should report underage sexual activity is just ridiculous- hello, got parents?

And as for abstinence being the best policy as a commenter said above? Yeah, perhaps it is and perhaps the parents should teach that. I thought small government conservatives were for....small government. Why should the state play mommy and daddy when it comes to sex? How about teaching kids in health class that it is generally a good idea to abstain from sex until one is emotionally and phyisically mature to deal with the consequences of such actions?

And the reason I dont say "until marriage" is because in this country we have a right to decide NOT to get married- myself being one of those people that has made that choice. Does that mean at age 37 I can never have sex? Sorry folks. I think I am mature enough to deal with the consequences.

This state law seems overly punitive to me when it could be handled other ways perhaps.

Aspasia M. said...

I have a general legal question.

Who has the legal responsibility of babies born by minors?:

If a minor girl, (under the age of 18 and she lives with her parents) bears a child - Who has legal custody of that baby?

Who gets to make the health decisions, like shots/ circumcision/ ect for the baby? And who is legally responsible for the care of the baby?

Do her parents get the custody and the legal responsibility of caring for the baby? Or does she get custody?

me said...

As far as I know, the child/mother gets custody and is legally responsible for the baby.

Aspasia M. said...

me,

I don't understand how a minor can become legally responsible for another minor. Is that legally possible?

me said...

Yes. http://www.jlc.org/home/mediacenter/factsheets/FAQEMN.html

scroll down

"Does becoming a parent automatically lead to emancipation?

No, becoming a parent does not emancipate a minor for all purposes. If a minor is not able to support herself and does not live independently of her parents, she is not considered emancipated, whether or not she has a child.

Teenagers do acquire some of the rights of adults when they have a child. For example, teenage parents have the right to custody of their child and to make decisions regarding the child's upbringing, such as consenting to medical treatment, educational planning, and adoption. Teenage parents maintain these rights regardless of whether they live with their own parents or not, as long as they adequately care for their child. Teenage mothers also have the right to consent to their own health care, except for abortions."

This is only for Pennsylvania, I couldn't find anything better quickly on google. But, it makes sense -- the girl got pregnant and had the child, it doens't seem fair to make the parents legally responsible for another child. The girl was mature enough to have sex and have a baby -- she should be able to make decisions about the baby's healthcare. If the teen mom can support herself, she can become legally emancipated -- if not, the parents still have to support her to keep the state from having to do so.

me said...

Here is a better link

http://nyclu.org/rrp_rppt5.html#_ftn119

me said...

Also check out this link, questions from pregnant teenagers and their boyfriends, parents, etc. Eyeopening and sad.

http://www.faqfarm.com/Q/FAQ/634

Aspasia M. said...

me,

Thanks for the links. I've been wondering about the legalities involved.

(I was particularly curious because people have asserted that a teenage girl cannot legally take an Advil without parental permission. If this is true, I find it bizarre that a teenage girl cannot take an Advil but might be legally responsible for making medical decisions for her baby.)

I think that if parents refuse permission for an abortion, it seems unfair to legally determine that the minor child should be financially responsible for the new baby.

Patrick Martin said...

The trick will be to find a way to rule against this idiocy without also tossing out compulsory reporting of child abuse, gunshots, STDs (do they still have to do that with non-AIDS STDs?), and the like. Using the 1st Amendment forced-speech argument would undercut all those other reporting requirements, which are generally though to be worthwhile.

A Griswold argument coupled with a parental rights argument might be the best bet. Inherent privacy in the family and family planning along with the right of parents to make decisions about their child's upbringing without involving the state.

On the other hand, this may just be a really bad, stupid, short-sighted policy that Kansans should quickly overturn if they don't like it.

Pastor_Jeff said...

Good comments. As I said, I think the law and especially this application is over-reaching. I suppose Planned Parenthood is right to draw out some of the logical conclusions of where this law would lead, but consent laws really do serve a good purpose.

I'm not sure healthcare providers should have to tell the authorities that they gave birth control to a 15-year-old. But the law (and healthcare workers) should protect the best long-term interests of minors - precisely because they lack the wisdom and maturity to make wise decisions for themselves.

Where do you draw the line? What if a 15-year-old is having risky sex with multiple partners? Do you notify the parents of a 16-year-old with an STD? Do they need to know (even if only for medical reasons) if a minor daughter is taking birth control pills?

As an earlier commenter asked, Why are sex and abortion singled out as areas of their children's health in which parents cannot know anything? Why must a 12-year-old get permission for ear piercing but not for abortion - which is physically and morally a much more significant act? Could you imagine rushing a 14-year-old to the ER with appendicitis, operating on him, sending him home and never saying anything about it to his parents?

me said...

geogduck said "I think that if parents refuse permission for an abortion, it seems unfair to legally determine that the minor child should be financially responsible for the new baby."

Well, she can give the child up for adoption and her parents cannot stop her (legally). I don't know if there are states where there is a parental consent law for abortion, notification is a bit different, though arguably is exactly the same thing. If the state requires parental notification for an abortion, parents who are notified before the procedure can probably make sure the daughter does not have an abortion by not letting her out of the house, etc.

Aspasia M. said...

me,

I read some of the faqfarm questions, and I agree, they are sad.

I suppose the States must have laws governing the financial responsibility for the baby that make some sort of sense. I mean, they can't really expect a 14 year-old to financially support a child. I wonder if the minors are eligible for food stamps & such.

anonlawstudent said...

1) Wisconsin statutes also criminalise all sexual conduct with a minor, regardless of age differential. Sometimes both fifteen-year-old kids are prosecuted with sexaul assault of a minor. But fifteen year old kids are tried as juveniles. The sixteen year old who gets his fifteen year old girlfriend pregnant can be tried as an adult. I believe Kansas has the same statutory scheme.

2) Notification is not for the parents, but for the criminal justice system. The statute is not protecting a parent's right to be involved in the childs reproductive choices; it is protecting the State's interest in prosecuting crimes.

3) I don't know how I feel about parental involvement; clearly there are situations where it's not appropriate for parents to be involved. But there are other situations where it might be just what the child needs. I think it depends more on the charachter of the parents than anything else.

anonlawstudent said...

4) I think there's a strong structural argument for Federalism in this case -- e.g. Brandies and his "laboratories of democracy." If the Kansas approach causes more trouble, then other states can try other things. If Kansas turns into a beacon of hope for our nation's youth, well, we'll deal with that when it happens.

5) Is there a rights based arguement for Federal jurisdiction over the issue? I don't see one. Maybe an expansion of privacy rights; but minors' rights are few and weak.