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The Politics of Teen Women's Sexuality: Public Policy and the Adolescent Female Body

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The Politics of Teen Women's Sexuality: Public Policy and the Adolescent Female Body
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    THE POLITICS OF TEEN WOMEN’S SEXUALITY: PUBLICPOLICY AND THE ADOLESCENT FEMALE BODY  Michelle Fine ∗  Sara I. McClelland  **   I NTRODUCTION ..............................................................................................   995I. T EEN S EXUAL A CTIVITY AS S EXUAL A BUSE :   W HEN L AWS AND I DEOLOGY I NTERSECT ........................................................................   996  Adolescent Sexual Activity as Sexual Abuse ...................................... 997 State as Sole Protector of Young Women ........................................... 997  Educators and Health Professionals Become Mandatory Reporters ...................................................................................... 998  Marriage Legitimates Sexual Activity for Teens ................................ 999II. C ONTEMPORARY P OLICIES .................................................................   999  A. Abstinence-Only-Until-Marriage Education ............................ 1001 1. Federal Requirements Concerning Funding of Sex  Education ........................................................................... 1002 2. Lessons About Sex  .............................................................. 1005 3. Health Consequences of Abstinence-Only Education ........ 1008 4. Summary ............................................................................. 1009  B. Regulating Emergency Contraception ...................................... 1010 1. The FDA Decision .............................................................. 1011 2. Pharmacists’ Refusal and Claims of Moral Choice ........... 1015 3. Summary ............................................................................. 1016 C. Parental Consent for Minors’ Access to Abortion ................... 1018 1. State Regulations ................................................................ 1018 2. Families and Violence ........................................................ 1020 3. Legal Obstacles Instead of Legal Support  .......................... 1022 ∗ Distinguished Professor of Psychology, The Graduate Center, City University of New York. ** Ph.D. Candidate, The Graduate Center, City University of New York. The authors would like to thank the Leslie Glass Foundation for its generous support. We also wish to thank Kim Buchanan for her closereading and careful commentary, as well as Eva Goldfarb, Professor of Health Education at Montclair StateUniversity, Evelyn Shalom, family life educator in Ridgewood New Jersey, and Susie Wilson, senior advisorto the Network for Family Life Education at Rutgers University, for their time, conversation, and courage.This Article is coauthored with fully shared responsibility for the product. The authors’ names are listed inalphabetical order.  994 EMORY LAW JOURNAL [Vol. 56 4. Health Consequences of Parental Involvement  Requirements ...................................................................... 1024 5. Summary ............................................................................. 1025III. C ONSEQUENCES OF L EGAL R ESTRICTIONS .......................................   1025  A. Young Women’s Dependence on the State ............................... 1026 1. Differential Impact by Race, Ethnicity, and Class ............. 1027  B. Loss of Supportive Adults: Censorship and Criminalization .... 1030 1. Educators Are Censored  .................................................... 1030 2. Providing Access to Legal Abortion Is Criminalized  ......... 1031 3. Resistance ........................................................................... 1032IV. D ISCUSSION ......................................................................................   1034  A. The Imprint of Law and Public Policy on the Lives of YoungPeople ....................................................................................... 1034 1. An Argument for Legal Support of “Thick Desire” ........... 1034  B. Policy and Collaboration Recommendations ........................... 1036 1. Polices that Support Sexual and Reproductive Freedoms for Young Women ............................................................... 1036 2. Policies that Protect Educators and Health CareProviders ............................................................................ 1037 3. Policies that Attend to Various Forms of Sexual Discrimination .................................................................... 1037C ONCLUSION ................................................................................................   1038  2007] THE POLITICS OF TEEN WOMEN’S SEXUALITY 995 I NTRODUCTION  Teen women’s sexual and reproductive lives are shaped by laws and publicpolicies that expand or constrict their educational and health supports. Mostadolescents depend substantially on the public sector to help support theirhealthy sexual development and to protect them from sexual violence, disease,and pregnancy. Thus, it is critical to examine the ways in which publicpolicies concerning young women’s sexualities have been forged withinreligious and “moralizing” discourses. The explicit pairing of law andreligious ideology has transformed the role of law and public policy in youngwomen’s lives from a supportive function to one that censures young womenfor their sexual behavior. As educational, social service, and health supportsfor youth are scaled back in the name of small government or neoliberalreform, the adverse consequences of sexual behavior are described as if theyare natural. As a consequence, the etiology of these consequences is erased.Young women, especially young women of color and poor women, end upshouldering a heavy burden for engaging in sexual activity—activity that theyengaged in by choice or by coercion.In this Article, we argue that contemporary public policies on adolescentsexuality are being designed in ways that    significantly limit young women’s access to information andhealth care regarding sexual behaviors and sexual desire;    diminish the supports available to young women, including thosewho have experienced sexual violence, risk, and/or danger;    limit the professional license of educators and health workers whotypically support teens in their sexual and reproductive decisionmaking; and    circumscribe the options available to young women whoexperience sexual desire or sexual violence in the name of protecting the young.We analyze how certain groups of already marginalized young women, such asyoung women of color, those with disabilities, lesbians, and young women inpoverty, suffer more severely as the public sphere shifts away from offeringsupport and instead toward punishment for sexual activity.To investigate our thesis, we analyze three specific public policies: (1) thefederally funded proliferation of abstinence-only-until-marriage education in  996 EMORY LAW JOURNAL [Vol. 56 schools and communities, discussed in Part II.A; (2) the refusal to grant youngwomen over-the-counter access to emergency contraception, discussed in PartII.B; and (3) requirements of parental consent or notification for an abortion,discussed in Part II.C. These three public policies affect young women in thecore institutional contexts of their lives: their families, schools, and health caresettings. In this Article we include a brief history of each policy, the currentimplementation of the policy, and the consequences of each policy for womenunder eighteen, with particular attention to how these consequences areunequally distributed among young women based on their race or class or both.To forecast our argument, we review a recent case in Kansas in whicheducators, therapists, and health care practitioners resisted a mandatoryrequirement to report all sexual activity of youth under sixteen as sexual abuse.In this case, it is possible to see the simultaneous withdrawal of public supportsfor youth and the moral framework imposed on all forms of teen sexuality inthe name of state protection.I. T EEN S EXUAL A CTIVITY AS S EXUAL A BUSE :   W HEN L AWS AND I DEOLOGY I NTERSECT  In 2003, Kansas Attorney General Phillip Kline released an opinion thatcast a wide net that ensnared all adults who interact with minors—includingteachers, physicians, nurses, and therapists—and described them as legallyrequired to report any sexual activity involving minors less than sixteen yearsof age. 1 Kline’s opinion was an interpretation of the 1982 Kansas lawcriminalizing all sexual intercourse, consensual or nonconsensual , with aperson younger than sixteen. 2 Kline’s opinion of the law was importantbecause it included a broad interpretation of sexual activity—for example, ayoung woman seeking birth control—as grounds for the mandatory reportingrequirement to be triggered. 3  While current Kansas policies might seem extreme in their vigilance overteenage sexuality, they provide a prototype of national policies in which we are 1 See Op. Kan. Att’y Gen. 2003-17 (2003), 2003 WL 21492493 (citing K AN .   S TAT .   A NN .   § 38-1522(2003), which lists mandatory reporters). 2 As the court noted in  Aid for Women v. Foulston , “Kansas law defines ‘sexual abuse’ as ‘any actcommitted with a child, described in article 35, chapter 21 of the Kansas Statutes Annotated.’” 427 F. Supp.2d 1093, 1098 (D. Kan. 2006). The referenced chapter criminalizes a range of sexual activities involving aminor under the age of sixteen. See § 21-3503. 3 See Op. Kan. Att’y Gen., supra note 1.  2007] THE POLITICS OF TEEN WOMEN’S SEXUALITY 997 able to observe four specific trends: (1) all teen sex is considered a form of sexual abuse; (2) the state is asserted, in response, as the ultimate protector of young women; (3) adult educators and health professionals are repositioned asmandatory reporters for the state, effectively eliminating “zones of privacy” 4  and the availability of supportive adults who were once available to teens; and(4) marriage is proffered as the only context that legitimates sexual activity forteens or adults. Even though the District Court of Kansas permanently blockedenforcement of Attorney General Kline’s legal opinion in April 2006, the spiritof Kline’s opinion nevertheless highlights current trends in legislating thesexuality of minors. 5 The Kansas case allows us to observe the increasinglydangerous confusion between making laws to protect young people andmaking religious, “moral,” and punishing judgments concerning their sexualactivity.  Adolescent sexual activity as sexual abuse. Kline’s interpretation of the1982 Kansas statute positioned young women, the State of Kansas, andsupervisory adults in very specific relationships to one another. One importantconsequence of the 1982 statute was that it was no longer possible forteenagers under sixteen to have voluntary and consensual sex. Instead,Attorney General Kline reframed “intercourse, in any fashion, with children[as] inherently harmful to the child.” 6 As a result, even consensual anddevelopmentally appropriate sexual activity between peers under sixteen yearsof age became equated with sexual abuse. Through this legal maneuver, thestate positioned itself as the prosecutor and protector of all teenage sexualactivity. While state laws and policies are necessarily concerned with stoppingall forms of sexual abuse, Kansas law deliberately conflated consensual andnonconsensual sex and removed the potential for the expression of sexualityfrom all young people. State as sole protector of young women. While the potential forconsensual sexual activity for minors was removed by the Kansas legislature in1982, Kline’s interpretation of the 1982 statute took an important step towardsremoving any supports for young people who did become sexually active. 4 The court in  Aid for Women noted that “[a]lthough the United States Constitution does not explicitlyrecognize a right to privacy, the Supreme Court has found certain ‘zones of privacy’ in the amendments to theConstitution.” 427 F. Supp. 2d at 1105 (citing Union Pac. R.R. Co. v. Botsford, 141 U.S. 250 (1891); Roe v.Wade,   410 U.S. 113, 152–53 (1973)).  Botsford  found a zone of privacy based on common law, not aconstitutional right. See 141 U.S. at 251. 5 See Aid for Women , 427 F. Supp. 2d at 1116. 6 See Op. Kan. Att’y Gen., supra note 1.
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