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The Incoherence of Federal Sex Policy

The Incoherence of Federal Sex Policy

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Published by betsyk1
Government policies meant to improve life for U.S. citizens are hurting marriage and families.
Government policies meant to improve life for U.S. citizens are hurting marriage and families.

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Published by: betsyk1 on Mar 21, 2011
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03/21/2011

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Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
The Incoherence of Federal Sex Policy: Title X,Medicaid, and theEisenstadt Decision
byJennifer Roback Morse, Ph.D.In a 1972 decision widely hailed by thepolitical classes, the Supreme Court opinedin
Eisenstadt 
v.
Baird,
“If the right toprivacy means anything, it is the right to befree from unwarranted governmentintrusions into matters so fundamentallyaffecting a person as the decision whether tobear or beget a child.”
1
Imagining that theCommonwealth of Massachusetts wascoercing her citizens to have childrenagainst their wishes, the
Eisenstadt 
decisionstruck down a statute that had been amendedto comply with the requirements of 
Griswold 
v.
Connecticut 
(1965). That earlier decision had demanded that states allow thesale of contraceptives to married couples, asthe Court held that prohibiting the use of contraceptive devices in marriage would bean unacceptable invasion of maritalprivacy.
2
In
Eisenstadt 
, however, the Courtmoved to claim that “whatever the rights theindividual to access contraceptives may be,the rights must be the same for married andunmarried alike.”
3
The
Eisenstadt 
rendering of a “right toprivacy” seems to stand for the position thatthe nation’s laws—like the one inMassachusetts that functioned as a sanctionagainst both sexual relations and procreationoutside of marriage—should not impose so-called “middle-class morality” on the lower classes. The government at all levels, it isclaimed, must remain absolutely neutral on“matters so fundamentally affecting aperson,” including sexual behavior,marriage, and childbearing decisions. Bycreating an unrestricted right for all citizensto use contraception regardless of maritalstatus,
Eisenstadt 
is usually praised as anadvance for individual liberty against theintrusion and meddling of the state.Yet what one hand of the law appears togive, the other takes away. The same year the Court was demanding that thegovernment be neutral on sexual matters,Congress was authorizing Medicaid to addcontraceptives to its covered services to thelow-income population. Not as innocent as itappears, this expansion of Medicaid cannotbe understood apart from President RichardM. Nixon’s signing of the Family PlanningServices and Population Research Act of 1970, or Title X of the Public HealthServices Act, described by social historianAllan C. Carlson as “the first federalprogram openly focused on the promotion of birth control with the aim of sharplyreducing American fertility.”
4
In a very realsense, the new coverage made Medicaid, anentitlement program, subservient to thegoals of Title X. Within time, Medicaidwould become the largest federal supplier of contraception. In 2006, for example,Medicaid was responsible for more than 70
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
percent of public birth-control expenditures,or $1.3 billion.
5
The goals, methods, and results of these twofederal birth-control initiatives, however, flydirectly in the face of the Supreme Court’sdemand that the government remain neutralwith respect to private reproductivedecisions. There is a fundamentalincoherence in federal policy, which limitsthe rights of the states to regulate or eveninfluence norms of sexual behavior while atthe same time assigns to itself the right tospend billions of taxpayer dollars toinfluence those norms at the state, local, andindividual level. The fact that the Americanpublic has grown accustomed to the idea of the federal government financing andpromoting contraception does not eliminatethe fact that Title X and its Medicaid versiondirectly contradict the intellectualunderpinnings of the “right to privacy,”which the Court has found to be“fundamental.”
The Medicaid Birth-Control Agenda
The regulations that control Medicaidtreatment of contraceptives illustrate thatfundamental incoherence. They demonstratethat Congress was not simply making familyplanning available to the states and to low-income individuals on a neutral basis. No,through Medicaid rules, the federalgovernment has been implicitly imposing amorality of its own. Medicaid’s policiesactively promoting contraception haveempirical claims and moral argumentsembedded within them. For example:
Birth control is a mandatory part of state Medicaid programs. Any statethat does not want to offer family-planning services will face a penaltyand lose other Medicaid funds. Whendealing with most other services,including life-saving services such aschemotherapy, the states have achoice about whether to offer them.This conveys the unmistakablemessage that preventing births ismore important than preserving life.
Contraception is the most favoredservice in Medicaid. The federalgovernment will pay up to 90 percentof a state’s birth-control relatedexpenses, a treatment accorded to noother category of mandatoryservices, nor to other preventivemedicines, both categories of whichare normally reimbursed to the statesat a little more than 50 percent of costs. This extraordinarily favorablecoverage of birth-control costs is nota morally neutral posture.
Birth control must be available tominors over the age of puberty. Thestates cannot adopt their ownpolicies about how and whether topromote sexual relations amongunmarried teens. This policy hasembedded within it the highlydubious empirical claim that makingartificial birth control availablepromotes health and prevents unwedteen pregnancy more effectively thanother policies which are less favoredby the government. Such policiesmight include promoting the
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
confinement of sexual activity tomarriage, teaching the naturalrhythms of the body, or providingteens with non-sexual activities tofill their time.
Parents are prohibited from knowingwhether their dependent childrenreceive birth control. Medicaidextends to children the same right todoctor-patient confidentiality thatadults have. States cannot protectparents’ rights to be informed of or involved with the health-caredecisions of their children. In effect,the federal government requires thestates to undermine parentalsupervision and authority over their children.
Contraception must be free towelfare recipients. The states cannoteven require a nominal fee or co-pay.The tacit moral message is that allthe problems associated with non-marital sexual relations can all becontracepted away.
State governments must activelypromote family-planning services,especially to minors. The stateMedicaid costs associated withoutreach, advertising, and sexeducation are reimbursed to thestates at the same favorable 90percent rate.
6
Under these circumstances, the claim thatthe federal government pursues a policy of “neutrality” toward sexual activity andfertility is hardly credible. The governmentis not simply giving citizens completefreedom in making their own fertility andcontraceptive decisions. The federalgovernment has imposed its own values andchoices on the population, particularly thepoorest and most vulnerable portions of thepopulation. These rules weaken the abilityof state and local communities to counter this federal thumb on the scale of people’sdecision-making. For all practical purposes,the federal government has nationalized apolicy that tacitly encourages sexual activityamong the unmarried while conducting arear-guard action to prevent the naturaloutcome of that sexual activity.
Is This Really Uncle Sam’s Business?
Evaluating that nationalized policy requiresnot simply noting its incongruence with
Eisenstadt 
’s apparent demand for government neutrality. It also requiresraising two questions: 1) whether Uncle Samought to be in the family-planning business,and 2) whether the federal financing andpromotion of contraception has met itsstated objective or has improved the qualityof life of the urban poor. As to the firstquestion: Are the private choices concerningfamily size and spacing of millions of private American citizens really proper concerns of Congress? What justification isthere for the federal government to activelypromote contraception to minors withoutparental knowledge or consent?The obvious answer to the first set of questions is No. Whether Mr. and Mrs.Morse have two children or no children or ten children is none of the government’s

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