I. Introduction
The American Civil Liberties Union, 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, respectfully submits this testimony to the House of Representatives Committee on Energy and Commerce regarding abstinence-only- until-marriage education programs. As the Committee considers H.R. 4122, which would reauthorize the abstinence-only-until-marriage education program contained in Section 510 of the Social Security Act through the year 2007, the ACLU urges the Committee to weigh the serious civil liberties and public health concerns posed by these programs.
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 one outlined in Section 510, 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. Moreover, 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.
II. Abstinence-only Programs Constitute Government-Sponsored Censorship.
The current Section 510 language 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 these funds may not provide a participating adolescent with any other information regarding sexual conduct in the same setting as the abstinence program. Thus, recipients of federal abstinence-only funds operate under a federally imposed gag order that prohibits them from providing information in a funded program on preventing sexually transmitted diseases or pregnancy through the use of recognized methods of contraception, even when they are asked directly for this information by a young person participating in the program. As the Supreme Court said in Board of Education v. Pico, 457 U.S. 853, 867 (1982), when addressing censorship in a school context, "We have recognized that the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. In keeping with this principle, we have held that in a variety of contexts the Constitution protects the right to receive information and ideas." (citations omitted).
Because more comprehensive sexuality information cannot be provided in a federally funded abstinence-only program, the result of these programs is that teachers are censored and students are denied critical information. Material on contraception, sexually transmitted diseases, and sexual orientation has literally been ripped out of textbooks used in such programs. Some teachers have been disciplined or threatened with lawsuits for speaking frankly in the classroom about matters of sexuality or for answering direct questions from students. The fear of such recrimination chills important speech in our schools. "[T]he First Amendment ... does not tolerate laws that cast a pall of orthodoxy over the classroom." Keyishian v. Board of Regents, 385 U.S.589, 603 (1967).
The Section 510 abstinence-only program thus infringes on constitutional rights of free expression by censoring the transmission of vitally needed information about human sexuality and reproduction. Section 510 not only suppresses a particular viewpoint on sexuality, which is the most egregious form of speech regulation, cf. Rosenberger v. Rectors & Vistors of the Univ. of Virginia, 515 U.S. 819, 829 (1995), it suppresses the very information about sexuality that is most critical to teens. Section 510 leaves grantees no choice but to omit any mention of topics such as contraception, abortion, homosexuality, and AIDS or to present these subjects in a nonscientific, inaccurate or incomplete fashion.
II. Abstinence-only Programs are Ineffective and Endanger Young People's Health.
There is no compelling data that demonstrate that abstinence-only programs funded under Section 510 are effective in helping to delay sexual initiation or in reducing risk-taking behaviors among young people. In fact, 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.
Far from being concerned about "mixed messages," parents support comprehensive sexuality education that includes information about abstinence and about contraception. Studies show that parents want other trained adults to provide accurate and forthright information about sex to their children. See Tina Hoff et al., Sex Education in the Classroom 30-33 (2000).
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. There are several causes of this phenomenon. First, schools have limited curricular time to devote to sexuality instruction. If they are paid by the federal government to devote that instructional time to abstinence, they are unlikely to set aside additional time for comprehensive sex education. Second, because federal abstinence dollars are matching dollars, state funds for sex education are being diverted into these programs and there is little state funding left for more comprehensive programs. According to one study, as of 1999, one-third of the nation's high schools were promoting abstinence-only education, while excluding information about contraception and safer sex. See Adam Sonfield and Rachael Benson Gold, States' Implementation of the Section 510 Abstinence Education Program, FY 1999, 33(4) Family Planning Perspectives 166 (2001). 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 also undermine efforts to stop the spread of HIV and other sexually transmitted diseases. These programs often provide inaccurate information about the effectiveness of condoms in preventing the transmission of HIV and exaggerate the data on condom failure rates. Such misleading information poses grave risks to young people's health.
IV. Abstinence-only Programs Create a Hostile Environment for Lesbian and Gay teens and Pose Particular Risks to the Health of These Teens.
Abstinence-only programs are particularly harmful to lesbian and gay youth. 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. Moreover, section 510 requires that all federally funded programs teach that "a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity" and that "sexual activity outside the context of marriage is likely to have harmful psychological and physical effects." See 42 U.S.C. § 710. In a society that generally denies gays and lesbians the right to marry, these programs thus essentially reject the idea of sexual intimacy for lesbian and gay youth and even deny their very humanity. Such clear hostility violates the rights of lesbian and gay youth to attend school free of discrimination.
V. Abstinence-only Programs Dangerously Entangle the Government with Religion.
Many abstinence?only curricula contain religious prescriptions for proper behavior and values, in violation of the First Amendment's guarantee of the separation of church and state. A popular abstinence-only curriculum called "Sex Respect," for example, was originally designed for parochial school use. While it now uses the term "nature" in place of "God," it still has strong religious undertones and cites religious publications as its reference sources.
Although federal guidelines do not permit abstinence-only grant recipients to convey religious messages and to impose religious viewpoints on participants, in practice, many of these programs do precisely that. In one example, a program that received federal abstinence-only funds submitted as part of its grant proposal a request for $750 to buy Bibles for each participant in the program and to engrave the participants' names on the Bibles. Another program that received federal abstinence-only funds submitted a sample skit as part of its funding request in which Jesus was a main character and in which the narrator explained that "Christ can forgive any sins in our lives." This is an inappropriate and unnecessary entanglement of government with religion. The rigidity of the federal abstinence-only requirements make it more likely that such entanglement will occur because it skews funding toward more ideological perspectives and away from more medical and scientific perspectives.
VI. Conclusion
The ACLU urges the Committee to weigh these serious civil liberties concerns when considering H.R. 4122.