Imagine “Mary,” a sixteen-year-old junior in high school, who has been dating “John,” a seventeen-year-old senior, for three years in a serious relationship. Mary knows that she and John should practice safe sex, and she does not want to become pregnant or catch a sexually transmitted disease. However, she is concerned that her parents will not approve of her activities and will not help her in obtaining contraceptives. John also feels that he is mature enough to make the decision to have sex, yet he knows that his parents will want to consent before he can receive condoms from his high school. Mary and John believe that they are physically and emotionally mature enough to decide to have sex and to use contraceptives without their parents’ approval, and they could potentially obtain free condoms from their public high school’s health clinic. Both Mary and John’s parents, however, feel that a public school condom distribution program undermines their religious teachings to abstain from sex before marriage and weakens the moral values they are trying to impart to their children. Further, Mary and John’s parents believe that a school should not be able to override the education they provide to their children regarding fundamental questions of life and intimate relations.
This article will argue that if Mary and John’s school begins a condom distribution program, Mary and John should be able to obtain condoms with minimal burdens, and that any state-imposed obstacles that do not meet strict scrutiny review, such as parental consent or opt-out provisions, are unconstitutional. While some courts have determined that, in general, public schools should be able to distribute condoms to their students, no court has stated that minors have a fundamental liberty interest in the area of sexual health that outweighs their parents’ rights. Leaving this interest unprotected means that schools either will not distribute condoms or will include parental consent provisions in their condom distribution programs, which ultimately provides less safety for society. In particular, allowing (or even requiring) parental approval will hinder a state’s efforts to curb the high rates of teenage pregnancy and sexually transmitted diseases because fewer teenagers will practice safe sex. Additionally, until a court formally delineates the scope of a minor’s rights in this area, minors will not enjoy the entire protection of the Constitution.
Part I of this article analyzes the problem of teenage sexual activity, highlighting the alarming rates of teenage pregnancy and sexually transmitted diseases (“STDs”) such as HIV and AIDS. Part I also distinguishes condom distribution programs at public schools from those in public health clinics and concludes that providing condoms at public schools is the most effective method of reaching minors. Part II discusses the right of parents to raise their children as they wish, the liberty interest of minors as it relates to reproductive health, and the state’s compelling interest in promoting public health through sex education and condom distribution. Part III examines the four reported contraceptive distribution cases. Part IV demonstrates that, in light of the reported opinions, courts should recognize a minor’s fundamental liberty interest in making decisions about his or her own sexual health in any future condom distribution cases. Part IV also argues that schools should affirmatively act to provide condoms based on policy considerations, and that any state burden on access to condoms—once a school board has decided to offer them in public schools—must survive strict scrutiny review. Thus, Part IV concludes that recognizing the importance of adolescents’ rights in this context (which necessarily must be at the expense of parents’ rights when parents disapprove of the distribution programs) will vindicate minors’ constitutional rights, further the state’s compelling interest in decreasing the frequency of teenage pregnancies and STDs, and promote the promise of democracy that we value so highly as a country.
Joshua A. Douglas, When Is a "Minor" Also an "Adult"?: An Adolescent's Liberty Interest in Accessing Contraceptives from Public School Distribution Programs, 43 Willamette L. Rev. 547 (2007)