THE POLITICS OF TEEN WOMEN'S SEXUALITY: PUBLIC POLICY AND THE ADOLESCENT FEMALE BODY
Michelle Fine*
Sara I. McClelland**
INTRODUCTION .............................................................................................. 995
I. TEEN SEXUAL ACTIVITY AS SEXUAL ABUSE: WHEN LAWS AND
IDEOLOGY INTERSECT ........................................................................ 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 ................................ 999
II. CONTEMPORARY POLICIES ................................................................. 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
4. Health Consequences of Parental Involvement
Requirements ...................................................................... 1024
5. Summary ............................................................................. 1025
III. CONSEQUENCES OF LEGAL RESTRICTIONS ....................................... 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 ........................................................................... 1032
IV. DISCUSSION ...................................................................................... 1034
A. The Imprint of Law and Public Policy on the Lives of Young
People ....................................................................................... 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 Care
Providers ............................................................................ 1037
3. Policies that Attend to Various Forms of Sexual
Discrimination .................................................................... 1037
CONCLUSION ................................................................................................ 1038
INTRODUCTION
Teen women's sexual and reproductive lives are shaped by laws and public policies that expand or constrict their educational and health supports. Most adolescents depend substantially on the public sector to help support their healthy sexual development and to protect them from sexual violence, disease, and pregnancy. Thus, it is critical to examine the ways in which public policies concerning young women's sexualities have been forged within religious and "moralizing" discourses. The explicit pairing of law and religious ideology has transformed the role of law and public policy in young women's lives from a supportive function to one that censures young women for their sexual behavior. As educational, social service, and health supports for youth are scaled back in the name of small government or neoliberal reform, the adverse consequences of sexual behavior are described as if they are natural. As a consequence, the etiology of these consequences is erased. Young women, especially young women of color and poor women, end up shouldering a heavy burden for engaging in sexual activity-activity that they engaged in by choice or by coercion.
In this Article, we argue that contemporary public policies on adolescent sexuality are being designed in ways that
ƒ significantly limit young women's access to information and health care regarding sexual behaviors and sexual desire;
ƒ diminish the supports available to young women, including those who have experienced sexual violence, risk, and/or danger;
ƒ limit the professional license of educators and health workers who typically support teens in their sexual and reproductive decision making; and
ƒ circumscribe the options available to young women who experience sexual desire or sexual violence in the name of protecting the young.
We analyze how certain groups of already marginalized young women, such as young women of color, those with disabilities, lesbians, and young women in poverty, suffer more severely as the public sphere shifts away from offering support and instead toward punishment for sexual activity.
To investigate our thesis, we analyze three specific public policies: (1) the federally funded proliferation of abstinence-only-until-marriage education in schools and communities, discussed in Part II.A; (2) the refusal to grant young women over-the-counter access to emergency contraception, discussed in Part II.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 the core institutional contexts of their lives: their families, schools, and health care settings. In this Article we include a brief history of each policy, the current implementation of the policy, and the consequences of each policy for women under eighteen, with particular attention to how these consequences are unequally distributed among young women based on their race or class or both.
To forecast our argument, we review a recent case in Kansas in which educators, therapists, and health care practitioners resisted a mandatory requirement 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 supports for youth and the moral framework imposed on all forms of teen sexuality in the name of state protection.
I. TEEN SEXUAL ACTIVITY AS SEXUAL ABUSE: WHEN LAWS AND IDEOLOGY
INTERSECT
In 2003, Kansas Attorney General Phillip Kline released an opinion that cast a wide net that ensnared all adults who interact with minors-including teachers, physicians, nurses, and therapists-and described them as legally required to report any sexual activity involving minors less than sixteen years of age.1Kline's opinion was an interpretation of the 1982 Kansas law criminalizing all sexual intercourse, consensual or nonconsensual, with a person younger than sixteen.2Kline's opinion of the law was important because it included a broad interpretation of sexual activity-for example, a young woman seeking birth control-as grounds for the mandatory reporting requirement to be triggered.3
While current Kansas policies might seem extreme in their vigilance over teenage sexuality, they provide a prototype of national policies in which we are 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 as mandatory 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 for teens or adults. Even though the District Court of Kansas permanently blocked enforcement of Attorney General Kline's legal opinion in April 2006, the spirit of Kline's opinion nevertheless highlights current trends in legislating the sexuality of minors.5The Kansas case allows us to observe the increasingly dangerous confusion between making laws to protect young people and making religious, "moral," and punishing judgments concerning their sexual activity.
Adolescent sexual activity as sexual abuse. Kline's interpretation of the
1982 Kansas statute positioned young women, the State of Kansas, and supervisory adults in very specific relationships to one another. One important consequence of the 1982 statute was that it was no longer possible for teenagers 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."6As a result, even consensual and developmentally appropriate sexual activity between peers under sixteen years of age became equated with sexual abuse. Through this legal maneuver, the state positioned itself as the prosecutor and protector of all teenage sexual activity. While state laws and policies are necessarily concerned with stopping all forms of sexual abuse, Kansas law deliberately conflated consensual and nonconsensual sex and removed the potential for the expression of sexuality from all young...
