Re:  Comments on Draft HHS Strategic Plan FY 2003-2008

Dear Ms. Channahsorah:

The American Civil Liberties Union (ACLU) respectfully submits these comments regarding the Department of Health and Human Services' (HHS) draft strategic plan for Fiscal Years 2003-2008, pursuant to the Government Perform and Results Act.  The ACLU is a nationwide, non-partisan organization with nearly 300,000 members dedicated to protecting the individual liberties and freedoms guaranteed by the Constitution and laws of the United States.

The ACLU has serious concerns about Objectives 1.2 and 6.5 in the draft strategic plan.  Objective 1.2, which aims to ""reduce the proportion of adolescents engaged in sexual activity, the proportion of persons engaged in unsafe sexual behaviors, and unintended pregnancies"" fails to focus on proven methods of accomplishing these important goals and instead unduly emphasizes harmful ""abstinence-only-until marriage"" education programs.  Objective 6.5, which would ""expand community and faith-based partnerships"" across federally funded programs under the Department, will jeopardize the civil rights, privacy rights, and religious freedom of beneficiaries of social services and of potential employees wishing to contribute to the delivery of publicly funded services.                 

Objective 1.2

Objective 1.2 in the Department's draft strategic plan places undue emphasis on harmful ""abstinence-only-until marriage"" education programs.  The plan states that the Department will accomplish its goals in this area by ""expand[ing] abstinence education programs"" and ""incorporat[ing] abstinence messages into Department programs that target adolescents.""  However, the abstinence-only programs that the Department already funds deny young people the critical information they need to protect their health and pose grave threats to civil liberties.

While the ACLU believes that discussion of abstinence is an important component of any educational program about human sexuality, we oppose programs, such as the ones the Department is currently funding, that focus exclusively on abstinence and censor other valuable information that can help young people to make responsible and safe decisions about sexual activity and reproduction.  In addition to their restrictions on free speech, abstinence-only-until-marriage programs endanger the health of young people, create a hostile environment for lesbian and gay youth, and dangerously entangle the government with religion.

Abstinence-Only Programs Constitute Government-Sponsored Censorship.            

The statutory language that governs all current federal abstinence-only programs permits federal funds to be used only for programs that have as their ""exclusive purpose,"" teaching the benefits of abstinence.  See 42 U.S.C. § 710.  In addition, recipients of federal dollars may not provide teens with any information that is inconsistent with this and similar messages in the same setting as the abstinence program.  Consequently, funding recipients may not advocate contraceptive use or teach contraceptive methods except to emphasize their failure rates.  Thus, recipients of federal abstinence-only funds operate under a federally imposed gag order that censors the transmission of vital information.  Grantees are forced to omit any mention of topics such as contraception, abortion, homosexuality, and AIDS or to present these subjects in an incomplete, and thus inaccurate fashion.  This incomplete and inaccurate approach to sexuality education cannot serve the Department's objective of ""reduc[ing] the proportion of adolescents engaged in sexual activity, the proportion of persons engaged in unsafe sexual behaviors, and unintended pregnancies.""   

Abstinence-Only Programs Are Ineffective and Can Endanger Young People's Health.

There is no compelling data that demonstrate that federal abstinence-only programs are effective in helping to delay sexual initiation or in reducing risk-taking behaviors among young people.  In fact, an independent, federally funded evaluation of abstinence-only education programs authorized under the 1996 welfare reform law concluded that there is ""no definitive research [linking] the abstinence education legislation with"" the downward trend in ""the percentage of teens reporting that they have had sex.""  Barbara Devaney et al., Mathematica Policy Research, Inc., The Evaluation of Abstinence Education Programs Funded Under Title V Section 510: Interim Report 1 (2002).  The overwhelming weight of evidence suggests that programs that include messages about both abstinence and contraception are most effective in delaying the onset of sex among young people, reducing the number of sexual partners they have, and in making them better users of contraception when they do become sexually active.  Many of these programs have been shown to ""delay the onset of sex, reduce the frequency of sex, reduce the number of sexual partners among teens, or increase the use of condoms and other forms of contraception"" among sexually active teens.  Douglas Kirby, The Nat'l Campaign to Prevent Teen Pregnancy, Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy, Summary 16 (2001).  In addition, contrary to claims by proponents of abstinence-only education, sex education curricula that discuss contraception -- by presenting accurate information about contraceptive options, effectiveness, and use -- do not increase sexual activity.  Id. at 18.  

Evidence also suggests that the availability of federal abstinence-only dollars is steering schools away from teaching comprehensive sexuality education altogether, even in their non-restricted (i.e. non-federally funded) programs.  In 1999, 23% of secondary sexuality education teachers taught abstinence as the only way of avoiding STDs and pregnancy, up from 2% in 1988.  Thus, abstinence-only money is reducing the availability of information that young people -- many of whom are already sexually active -- need to protect their health and to prevent unintended pregnancies.

Abstinence-Only Programs Create a Hostile Environment for Lesbian and Gay Teens and Pose Particular Risks to the Health of These Teens.  

By excluding information about safer sex practices and teaching about sex only in the context of marriage, abstinence-only programs stigmatize gay and lesbian teens and undermine efforts to educate those teens about HIV and STD prevention.  Abstinence-only programs also create a hostile environment for lesbian and gay youth.  These programs rely on fear and shame and address same-sex sexuality only as a context for HIV transmission.  At least two widely used abstinence-only curricula -- Clue 2000 and Facing Reality -- are overtly hostile to lesbians and gay men.  Such hostility violates the rights of lesbian and gay youth to attend school free of discrimination.  

Abstinence-Only Programs Unconstitutionally Entangle the Government with Religion.  

Many abstinence‑only programs use religious doctrines as guidelines for determining appropriate behavior and values.  These programs violate the First Amendment's guarantee of the separation between church and state by using tax-payer money to promote religion.  Although federal guidelines do not permit abstinence-only grant recipients to convey religious messages and to impose religious viewpoints, in practice, many of these programs do precisely that.  This past July, in a case brought by the ACLU, a federal court ordered the state of Louisiana to cease funding religious activities in its Governor's Program on Abstinence.  See ACLU of Louisiana v. Foster, No. 02-1440, 2002 WL 1733651 (July 24, 2002).  This program, which runs on federal and state dollars, has habitually funded abstinence-only programs that, among other things, present theater skits with Jesus as a character, feature a curriculum entitled ""God's Gift of Life,"" and minister to teens about the ""scriptural, spiritual, and practical foundation for combating the issues of premarital sex.""  The Department should not countenance constitutional violations of this nature by expanding abstinence-only programs.

For all of these reasons, the ACLU urges the Department to modify its strategic plan to eliminate plans to expand dangerous abstinence-only programs in Objective 1.2.  Indeed, if the Department wants to promote the health of our nation's teens, it should support programs that teach about abstinence, as well as provide medically accurate information to help protect those teens who nonetheless choose to become sexually active.

Objective 6.5

Objective 6.5, which would ""expand community and faith-based partnerships"" across federally funded programs under the Department, will jeopardize the civil rights, privacy rights, and religious freedom of beneficiaries of social services and of potential employees wishing to contribute to the delivery of publicly funded services.

Partnerships Between the Government and Faith-Based Organizations Must Be Carefully Monitored.

The ACLU is not arguing that relationships between HHS and faith-based organizations (FBOs) should not exist.  Rather, we are arguing that if they do exist, FBOs that receive public dollars must play by the same rules that govern all other non-profits.  Whether an organization is faith-based or not, there must be adequate protections in place to protect the individual religious expression, privacy, and civil rights of beneficiaries of services.  These same rights must be protected for all potential employees in federally funded programs.  Conversely, given that government oversight is necessary to ensure accountability and effectiveness in all federally funded programs, FBOs should set up a separate corporation under Section 501(c)(3) of the Internal Revenue Code.  Establishing a separate organization to administer the federally funded program is one way to help protect the religious freedom and free exercise rights of a house of worship from potential entanglement issues that could arise due to government oversight of the program.

Essential Protections for Individuals Should Not Be Characterized As ""Barriers"" to Faith-Based Organizations.

Objective 6.5, suggests that legislative, regulatory and programmatic ""barriers"" to participation of FBO's must be identified and reduced.  Yet these ""barriers"" are often, in fact, essential protections that must be maintained.  In its report to the President last year, HHS identified a number of rules and guidelines that it considered to be ""barriers"" to increasing the participation of FBOs in the delivery of services.  Yet these supposed ""barriers"" are actually protections that remain absolutely necessary to protect the individual rights of all who participate in these programs, whether as beneficiaries or as employees.  

For example, HHS has argued that prohibiting religious organizations from discriminating based on religion in employment is a "barrier" for FBOs that would otherwise participate in the delivery of publicly funded services if they could hire only people of their own faith.  This may in fact be the case.  But it should not lead to the conclusion that the prohibition should be lifted.  The prohibition on government funded discrimination is part of the fabric of civil rights policy in this country dating back to 1941, when President Franklin D. Roosevelt signed the first executive order prohibiting discrimination in federally funded activities.  In fact, if this prohibition is lifted the following un-American hypothetical would become the norm:  a young Jewish or Muslim social worker in a poor rural community steps forward to work in the only publicly funded social service program in her town.  The program happens to be run by the Catholic Church.  Upon applying for a job, the social worker is told not to bother submitting her application because she does not adhere to the tenets of the Catholic Church.  The social worker, who is otherwise fully qualified, is thus denied a job in a publicly funded social service program simply because of her faith. 

HHS has also argued that prohibiting religious organizations from engaging in religious activities, including proselytizing, discourages some FBOs from participating in publicly funded programs.  While again this may be true, this does not mean that the ban on proselytizing should be lifted.  This ban protects the religious freedom and privacy rights of beneficiaries of public services. 

Thus, while it is true that a number of rules currently exist that may limit the participation of religious organizations that discriminate in hiring or that proselytize in the delivery of services in government funded programs, to characterize these limitations as ""barriers,"" as the Department has, places the religious rights of the FBO -- which is voluntarily entering into a contract with government -- above the rights of individuals to receive a publicly funded service or to work in a publicly funded program free from religious discrimination, coercion, or harassment. 

For these reasons, the ACLU urges the Department to modify its strategic plan to eliminate plans to expand ""faith-based partnerships"" in Objective 6.5.

Sincerely, 

Laura W. Murphy
Director
ACLU Washington National Office