Prop 8 and the Future of Sex Ed

Will Neville

The Dept. of Health and Human Services recently released a funding announcement for states to apply for federal Title V abstinence-only-until-marriage funds and asked participants to try not to discriminate against LGBT youth.

Originally published at Amplify.

When the U.S. Department of Health and Human Services recently released a funding announcement for states to apply for federal Title V abstinence-only-until-marriage funds, HHS included some surprising new guidance:

“As States design their programs, ACF also encourages them to consider the needs of lesbian, gay, bisexual, transgender, and questioning youth and how their programs will be inclusive of and non-stigmatizing toward such participants.”

Translation:

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HHS kindly requests that you try to be as non-bigoted and un-hateful as possible when implementing programs that, by their very nature, discriminate against and demonize LGBT youth.

Is HHS kidding with this?!  We’re still talking about Title V abstinence-only-until-marriage programs, aren’t we?  Because last time I checked, the “until marriage” standard wasn’t really one that could be applied to LGBT youth in an “inclusive” and “non-stigmatizing” way.

Slapping one touchy-feely recommendation  – one that carries no legal weight whatsoever –  on anti-LGBT “sex education” policies would be roughly equivalent to Judge Vaughn Walker issuing a decision to uphold Prop 8, but adding non-binding guidance that California’s marriage ban be carried out in a way that didn’t hurt anybody’s feelings while denying them fundamental rights.

In fact, the Society for Adolescent Medicine has stated that “current U.S. federal law and guidelines regarding abstinence-only funding are ethically flawed and interfere with fundamental human rights” (emphasis mine) – but that’s okay now because HHS asked people politely to cut back on stigmatizing queer youth.

Reality is going to be a little bit of a disappointment.  You can’t really subject students to an abstinence-only-until-marriage program without stigmatizing LGBT students.  The curricula themselves perpetuate misinformation and stigma, and the entire “until-marriage” framework cannot be proclaimed “inclusive” in a country where 45 states – and the federal government – do not recognize same-sex marriage.

You can’t just call a bad policy good and hope no one notices.  [But if you want to watch someone try, check out this super-awkward video of David Axlerod reminding people that President Obama opposes same-sex marriage but still “supports equality” for LGBT Americans.  It would seem they’re not having the best week for LGBT messaging anywhere in the Obama administration.]

Still, let’s review, shall we? 

All Title V abstinence-only-until-marriage programs that receive federal funding are required to follow the A-H definition of abstinence-only education:

THE FEDERAL DEFINITION OF ABSTINENCE-ONLY EDUCATION

An eligible abstinence education program is one that:

A) has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity;

B) teaches abstinence from sexual activity outside marriage as the expected standard for all school-age children;

C) teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems;

D) teaches that a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity;

E) teaches that sexual activity outside the context of marriage is likely to have harmful psychological and physical effects;

F) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society;

G) teaches young people how to reject sexual advances and how alcohol and drug use increase vulnerability to sexual advances; and

H) teaches the importance of attaining self-sufficiency before engaging in sexual activity.

Source: U.S. Social Security Act, §510(b)(2).

Again, the above emphasis is mine.  And this isn’t to say that points A, C, F, G, and H aren’t harmful to LGBT students – or that all of these points aren’t also harmful to straight youth.  They are. 

However, even a cursory glance at the minimum requirements for abstinence-only-until-marriage programs shows the entire undertaking to be so thoroughly at odds with “LGBT inclusion” to be laughable.  Except it isn’t a laughing matter at all.  This is the health and lives of America’s LGBT youth we’re talking about.  Far too often, abstinence-only programs substitute as the only sex education that young people receive. 

For LGBT youth, these programs specifically exclude any information about relationships that might be relevant to them, any information about condoms, and any mention of same-sex peer pressure or partner communication. 

These programs teach that any sex outside of marriage is “likely to have harmful psychological and physiological effects.”  That includes ALL non-heterosexual sex acts. 

These programs teach that “monogamous relationships in the context of marriage” is the expected standard of “human sexual activity.”  What’s that?  Four states, the District of Columbia, and sort-of California recognize same-sex marriage?  Good for them!  But no matter what laws states may or may not pass, the federal government has made it excruciatingly clear that it does not recognize same-sex marriages, even in the states that do.  The Defense of Marriage Act is still on the books – and Title V abstinence-only-until-marriage programs were definitely conceived for a DOMA-inclusive world. 

In December 2004, Rep. Henry Waxman commissioned an in-depth report on the content of these programs that found over 80% of abstinence-only-until-marriage curricula contained “false, misleading, or distorted” information about sexual health.  Not surprisingly, LGBT youth were often the target of the worst distortions:

  • One program taught students that 50% of gay male teens have HIV.
  • Another taught that HIV could be spread through sweat and tears.
  • Multiple programs exaggerated the failure rates of condoms, and subsequent studies have found that students are less likely to use condoms after receiving abstinence-only-until-marriage education. 

That’s on top of the fact that decades of research has shown that abstinence-only-until-marriage programs have no impact at all.

Last week, Judge Walker’s ruling to overturn Prop 8 proved once again that MLK was right.  The arc of history does indeed bend towards justice.  But, if recent developments prove true, the road towards LGBT equality may not be quite as long as we once thought. 

Sadly, the Obama administration has put itself on the wrong side of history twice in the last 10 days.  The President was wrong to reiterate his opposition to same-sex marriage.  History will judge him for his cowardice at the very moment when his leadership is most sorely needed.  And, though it may seem only a footnote in comparison, HHS cannot “fix” a deeply ideological and profoundly dangerous program with empty rhetoric.

I suppose I could just call this new HHS guidance for LGBT inclusion “a profound breakthrough in the fight for equality” – but even I can’t stomach that kind of empty spin.  After all, hypocrisy will be on the losing side of history too. 

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.