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October 31, 2021

The Contraception Conundrum: A Constitutional Approach to Establishing Comprehensive Sex Education in the Classroom and Community

By Rebecca Hamilton, JD, May 2021, Mississippi College School of Law, Jackson, MS, Mississippi Division of Medicaid, Jackson, MS


In 2016, the United Nations’ Department of Economic and Social Affairs reported that  75.1 percent of people in the United States were using contraceptives.1 This level of contraceptive use can generally be expected to provide extensive benefits for individuals and further several national interests.2  However, despite the recognized correlation between a high level of use and corresponding benefits, the United States fails to realize those expected results.3 This failure is most obvious in unintended pregnancy4 and maternal mortality rates.5

Some of the reasons these benefits are not fully realized in the United States are high usage rates of traditional, ineffective contraceptive methods and the improper use of contraceptives in general. The United States’ seemingly impressive 75 percent usage rate is diminished by the country’s above-average usage rates of sterilization, rhythm, and withdrawal.6 Each of these methods is included in that 75 percent rate, even though sterilization prevents the primary benefit of flexibility and rhythm and withdrawal are widely recognized as two of the least effective methods when compared to modern alternatives.7 As to improper use,8 in 2016 41 percent of unintended pregnancies were a result of individuals using birth control inconsistently or incorrectly.9

Recognizing this disparity, how can the United States translate the existing high use of contraceptives into more meaningful results? It is clear that access, and even use, are not enough. Something more is required to make access result in effectiveness: education. If individuals are not aware of the most effective contraceptives and how to use them, access is irrelevant.10 Therefore, the only way to ensure meaningful contraceptive use – referring to contraceptive use that achieves the desired individual benefits and furthers the expected national interests – is to provide extensive education about modern types of contraceptives and how to effectively use them.11

This solution requires addressing the current state of sex education in the United States, which reveals the need for two components: comprehensive sex education12 and a federal standard for such education. Whether considering schools’ abstinence-only programs13 or states’ attempts to defund family planning clinics,14 it is clear that federally mandating comprehensive sex education in the classroom and community is a necessary step to achieving individual benefits of contraceptive use and furthering national interests.

Part I of this article illustrates how comprehensive sex education is essential to establishing meaningful contraceptive use and correct the country’s disparity between use and expected results. It also explains how the current state of sex education in the United States continues to deprive individuals of the contraceptive rights that are guaranteed by the Constitution and well recognized in international and federal law.15 Part II addresses how that legal framework, despite its trend of recognition without action, is sufficient to support federally mandated comprehensive sex education in the classroom and the community. Additionally, it addresses the challenge of dealing with parental-consent requirements and religious influences that affect that education.

This article will demonstrate how meaningful contraceptive use furthers national interests and how contraceptive education should be approached as the fundamental, constitutionally protected right it is. Relying on those principles, the need for, and ability to establish, federally mandated and comprehensive sex education in the classroom and the community becomes clear. 

The Problem

The Benefits of Contraceptive Education and their Relation to National Interests

To understand why the United States must mandate comprehensive sex education for all ages, it is important to recognize that the accompanying benefits of contraceptive use can only be realized when individuals know how to use contraceptives effectively. The lack of focus on providing comprehensive sex education for all ages impedes the country’s ability to reap the full benefits that meaningful contraceptive use provides.

Meaningful contraceptive use has frequently been linked to social, health, and economic benefits for both the individuals using the contraceptives as well as the society in which they live.16 The national interests to be furthered by the benefits associated with meaningful contraceptive use include reduced maternal mortality rates, lower abortion rates, higher access to education for women and girls, fewer teen pregnancies, and prevention of epidemics and sexually transmitted diseases.17 The Department of Health and Human Services (HHS) has specifically recognized reducing teen pregnancy as a national priority.18

Benefits for the individual user include avoiding unwanted pregnancies, financial security, and improved access to a career and higher education.19 One key benefit of modern contraceptive use for the individual woman is the flexibility offered by temporary contraceptive options.20 This essential benefit allows women to pursue education and career opportunities knowing those options are available to assist them in the decision of when and if they choose to conceive.21 

These national and individual benefits are well founded and widely accepted expectations of meaningful contraceptive use. However, when compared to similarly situated countries, there is a glaring disparity between the United States’ contraceptive use and the achievement of those expected benefits.

Disparities in Benefits

In 2015, the United Nations’ Department of Economic and Social Affairs reported that  64 percent of married and cohabitating women around the globe used modern or traditional methods of contraception.22 As noted above, the United States was above average in contraceptive use, boasting a usage rate of 75.1 percent.23 However, this had not resulted in increased benefits. For example, the maternal mortality rate in the United States has risen, and even doubled, during the last 15 years, contrary to the international trend.24 Additionally, over half the pregnancies in the country each year are unintended.25

One explanation for this disparity is due to the types of contraceptives being used. For example, as noted above, female and male sterilization, as well as outdated and traditional methods such as rhythm and withdrawal,26 are included in the usage rate.27 It is well recognized that long-acting reversible contraceptives (LARCs) are the most effective and beneficial.28 Yet in 2015 sterilization made up more than 30 percent of contraception in North America, and the United States, specifically, had the highest rate of male sterilization in the world.29 This means that the most prevalent contraception in the United States is a permanent decision that does not allow the flexibility of modern contraceptives in choosing if and when to conceive.30

In contrast, similarly situated European countries have comparable percentages of use without the disparities regarding effectiveness. Despite Europe’s slightly lower continental usage rate – 69.2 percent due to a decline in women of reproductive age31 – European countries tend to experience more of the population and individual benefits associated with meaningful contraceptive use.32 For example, while the United States’ maternal death rate has steadily increased over the last 15 years, European countries’ rates have steadily decreased.33 Moreover, a far higher percentage of individuals in the United States are using more traditional and less effective means of contraceptives, including the rhythm and withdrawal methods, than their European counterparts.34 Only seven percent of people using contraceptives in Europe turned to sterilization, instead using more modern methods like the condom, intrauterine devices, or oral contraceptives.35

Explaining the Disparities

There is no question the United States is not reaping the same benefits of contraception as European countries.36 What appears to be missing is the element of education. It is no coincidence that similarly situated European countries that demonstrate the desired benefits of contraceptive use also have comprehensive sex education curriculums in schools and society.

In European schools, sex education is integrated across all subjects and grade levels;  educators also provide accurate and complete information in response to questions.37 The results of widespread education programs from an early age speak for themselves. The United Kingdom, France, and Germany boast some of the lowest teen pregnancy rates in the world.38  In the Netherlands, which has an extensive sex education program beginning in preschool, parental involvement in sex education is key.39 The schools provide parents with the tools to talk to their children about sex and their maturing bodies, thereby normalizing the conversation.40 As a result, the Netherlands also has one of the lowest abortion rates in the world.41

Not only do most European countries have extensive sex education in schools; there are also extensive sex education campaigns in society.42 European youth have access to free or low-cost contraceptives through their country’s universal healthcare programs.43 In France, there is no age requirement or parental consent needed to obtain even emergency contraceptives; all adolescents are free to talk to their healthcare providers about how to use any number of available contraceptives.44 Many European governments support massive, consistent, long-term public education campaigns and limit the influence of political and religious interest groups on these policies.45 These European countries demonstrate the difference that comprehensive sex education makes in ensuring that access to, and use of, contraceptives is meaningful.46

Current State of Sex Education in U.S. Schools and Society

In order to understand why the United States’ current stance on sex education is insufficient to properly educate individuals on contraceptive use, it is important to first discuss the development of sex education in the United States and where it stands today. The concept of sex education in this country has existed since its very foundation. In the early 1800s, school-aged children were subjected to abstinence-only teachings by evangelists and even received widely circulated pamphlets condemning any sexual activity.47 Unfortunately, this same abstinence-only principle is still highly influential on sex education in this country today.

Currently, the United States has no federal statutes mandating sex education in public schools, allowing sex education programs to exist with no accountability to provide accurate information.48 This lack of accountability allows programs that present abstinence as the only option for unmarried people and contraception as highly ineffective, if contraception is presented at all.49 Consequently, in 2008 almost 35 percent of school districts within the United States had abstinence-only policies for their sex education programs; today 19 states mandate and 27 emphasize abstinence-only education.50 This form of sex education is particularly prevalent in the South, which, unsurprisingly, results in a region with unwanted pregnancies and birth rates higher than the national average.51

However, even though there is no federal mandate on sex education, the federal government has not remained silent on the issue. On the contrary, it has contributed to providing abstinence-only education, as the only federal funds directed toward public school sex education programs are only appropriated if that program promotes abstinence-only sex education.52 Federal funds for these types of programs began in the 1980s, with the Adolescent Family Life Act of 1981 (AFLA), and continued to grow in 1996 with Section 510 of the Welfare Reform Act (Title V).53

The problem of federal funding for abstinence-only sex education also extends into society. In 2000, Congress began funding the Bush administration’s Community Based Abstinence Education (CBAE) campaign.54 By 2005, CBAE was “the largest and fastest growing source of abstinence-only education” and allowed the federal government to grant funds to public and private organizations to promote abstinence-only education.55 Under the Obama Administration, funding for federally supported abstinence-only programs received less support; and federal funds for AFLA, Title V, and CBAE were nearly depleted.56 Nevertheless, the Patient Protection and Affordable Care Act (PPACA) in 2010 included an amendment that renewed that funding and extended $125 million to abstinence-only, or abstinence-emphasized, sex education through 2014.57

Sex education in the general community was formally established in the 1960s in the form of family planning services, including counseling.58 These services were intended to allow couples to space their children, decrease unwanted pregnancies, decrease abortions, and reduce high rates of fertility.59 These sex education services have been proven essential in preventing pregnancy-related health risks, reducing infant mortality, preventing sexually transmitted infections and sexually transmitted diseases, promoting access to education, reducing teen pregnancy, and slowing population growth.60  These benefits are especially relevant to states that have high percentages of uninsured citizens and teen pregnancies.61  Nevertheless, these states, such as Texas, continue to underfund family planning services and restrict access due to religious and political persuasions that often misrepresent contraception and abortion as one and the same.62 Even the executive branch’s contrary attitude towards the importance of family planning can be seen in executive branch policies that decreased support for international family planning services.63

From the 1800s, when the curriculum of sex education condemned sexual activity as an “immense evil,” 64 to 2007, when the federal budget for abstinence-only education funding was $176 million,65 and to 2021, where 26 states still require abstinence to be the focus of sex education in their public schools66 – the United States’ curriculum for sex education, in both schools and society, tends to focus more on preventing intercourse than promoting its safety. However, abstinence-only sex education programs are not effective. Studies have found that teens in states with abstinence-only programs are more likely to become pregnant than those in states with comprehensive programs or no programs at all.67 Moreover, as of 2020, only 17 states require that school-based sex education program’s content be medically accurate.68 Providing students with inaccurate information, if any information at all, deters social progress and contributes to diminishing reproductive rights as a whole. Targeted efforts need to be made to provide comprehensive sex education in the United States. The legal framework already exists to pursue these efforts.

The Legal Framework of the Right to Contraceptive Education

Contraceptive education as a basic right fundamental to meaningful contraceptive use has been recognized on a national and international level.69 The Supreme Court has recognized the right to contraceptive education to be just as fundamental as the right to contraceptive use itself.70 But recognition is not enough. Even the most progressive endeavors to expand access to contraceptives and contraceptive education, such as PPACA’s Contraceptive Mandate, are not enough to achieve meaningful contraceptive use if they are not also expanding ways to actually access those contraceptives and education about how to use them.71

Contraceptive Rights: From Griswold to Carey

The issue of contraceptive use and education first reached the Supreme Court in 1965 with Griswold v. Connecticut amidst the decade the pill was first introduced in the United States.72 Two Connecticut statutes were at issue for criminalizing “any person who use[d] any drug, medicinal article or instrument for the purpose of preventing conception” and “any person who assist[ed], abet[ted], counsel[ed], cause[d], hire[d] or command[ed] another [to prevent conception].”73

The physicians in this case were convicted as accessories to preventing conception for their role in providing married couples with contraceptives and educating them on how to use them.74 Specifically, they gave “information, instruction, and medical advice” to married couples and “prescribed the best contraceptive device or material for [the wife] to use.”75 As a defense, the physicians raised the constitutional right of their married patients to access contraceptive materials and information, arguing that the statutes violated the Due Process Clause of the Fourteenth Amendment since it deprived those patients of those rights.76

In a landmark decision, the Court ruled that the right of privacy and freedom of association, created by the First Amendment, extended to a married couple’s decision to use contraceptives.77 By this ruling, the Court officially invalidated the first statute and recognized that the right to use contraceptives was protected by the Constitution and could not be banned but, at most, regulated in manufacture and sale.78 This holding also effectively invalidated the abetting statute and absolved the appellant physicians of any wrongdoing, since there was no longer a crime to which they could be accomplices.

While the Griswold decision applied to married couples, the rights established in that case were extended to nonmarried couples seven years later in Eisenstadt v. Baird.79 The Eisenstadt Court found that, per the Equal Protection Clause, whatever the rights are concerning contraceptives for married individuals, they must be the same for nonmarried individuals.80 This decision effectively extended contraceptive rights to all adult individuals under the Constitution.

In 1977, the Court went further and extended the right to use contraceptives without government interference to minors with Carey v. Population Services, Intern.81 Furthermore, the Court established that regulations imposing restrictions on whether to bear or beget a child required a compelling state interest and means narrowly tailored to express those interests.82 Specifically, the Court found that requiring distribution of nonmedical contraceptives, such as condoms or sponges, only through licensed pharmacists did not meet that standard and that prohibiting advertisement or display of contraceptives for the purpose of suppressing the availability and price of the contraceptives was unconstitutional.83

Neither the Griswold nor the Eisenstadt Courts made explicit efforts to extend the right to use contraceptives without undue government interference to include the education of how to properly use them. However, the Carey Court did that by holding that prohibiting contraceptive displays or advertisements geared at suppressing availability are unconstitutional. With Carey it is clear that the right to be aware of contraceptive information is as protected by the Constitution as the right to contraceptive use itself and may only be regulated for compelling state interests and by narrowly tailored means. Future cases such as Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003) would reaffirm that the right to make sure decisions without undue government interference regarding “marriage, procreation, contraception, family relationships, child rearing, and education” are guaranteed by the Due Process Clause.84 Together, these cases illustrate that the right to contraceptive use and contraceptive education are fundamental rights protected by the Constitution. These rights should, at the very least, allow couples to make the decision to use and be educated about contraceptives without government interference.

Extending the Right to Contraceptive Education: The Convention

International law also recognizes the right to contraceptives and the necessary role contraceptive education plays in exercising that right. In 1979, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women.85 This treaty, better known as “The Convention,” was adopted by 189 countries, including the United States, and is considered a bill of rights for women around the globe.86 Article 16 of the Convention focuses specifically on providing access to educational information that allows a woman to have the same rights to make family planning decisions as a man, as well as the access to the education, information, and means necessary to exercise those rights.87

The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), tasked with how to monitor and implement the Convention, makes several recommendations on how countries can promote effective, knowledgeable use of contraceptives.88 CEDAW stresses the importance of educating adolescents on all methods of family planning, noting that failing to provide this education contributes to the large population of young, unmarried women in need of family planning services who lack the education to even request information about the availability of modern contraception.89 Moreover, CEDAW stresses the importance of “prioritizing the prevention of unwanted pregnancy through family planning and sex education.”90 Article 16 also requires member states to “ensure that women and men are afforded the ‘same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education, and means necessary to enable them to exercise these rights.’”91

The Convention is just one of the many international treaties that recognize the right to contraceptive information as grounded in all individuals’ human rights as well as the rights to life, the highest attainable standard of health, and determination of the number and spacing of one’s children, privacy, information, and equality and non-discrimination.92 In joining these agreements the United States has, at least in principle, recognized the crucial role contraceptive education, specifically, plays in upholding basic reproductive rights. Nevertheless, the problem with this current legal framework is that recognition of these rights, alone, does little to provide individuals with the tools they need to exercise those rights. Few meaningful steps have been taken to expand access to contraceptive education in order to make use effective.

Making that Right Effective: PPACA’s Contraceptive Mandate

One step that has been taken to extend the right to access both contraceptive use and education is PPACA’s Contraceptive Mandate. This Mandate requires employers with more than 50 full-time employees to provide basic healthcare coverage and further mandates that coverage must include all Food and Drug Administration (FDA) approved “contraceptive methods, sterilization procedures, and patient education and counseling.”93 This Contraceptive Mandate also includes a religious exemption that allows nonprofit employers to self-certify as “religious organizations” with their insurance provider to opt out of covering contraceptive services in the group policy.94 However, in that case the insurance provider covers the cost of contraceptive services for those employees with the savings from not having to pay for unplanned pregnancies.95

This important step forward did create a framework for increased access to comprehensive sex education by mandating existing family planning services be covered by insurance providers. However, the Contraceptive Mandate did nothing to regulate the content and availability of those educational services. Without some mandate to both ensure that the content of those services is medically accurate and to increase the availability of such services, the Contraceptive Mandate does little to further the goal of achieving meaningful contraceptive use.

Implementation of the Contraceptive Mandate also highlighted an obstacle often faced in expanding access to contraceptive education: religion.96 The religious exemption allows employers that are not “religious employers,” but are simply “religiously affiliated organizations” that carry out secular functions, to attempt to control the actions of its employees who are not required to share those same beliefs.97 While the exemption did not originally extend to public, secular organizations whose owners have closely held religious beliefs, due to a successful court challenge (discussed below) they now qualify for the religious exemption.98 Moreover, while the exemption does make an effort to extend coverage to those employees by way of the certification requirement,99 affected employers recently successfully challenged that compulsive certification requirement on the grounds that it still violated their religious freedoms.100 The current controversy surrounding the Contraceptive Mandate demonstrates the strong influence religion continues to have on discussions of contraceptive use and education in society as a whole.101

The Solution

While the theme of recognition without action is the precise shortcoming of the current legal framework regarding contraceptive education, it also makes the solution easier. Recognition is a great place to start. Existing legislation and authority, other than abstinence-only funding, need not be abolished or overturned. Rather, those sources must be built upon to exceed merely recognizing the importance of contraceptive education and begin taking action that will provide all individuals with access to that education.

Starting in the Classroom

Before discussing what schools should teach in sex education, it is worth noting why sex education should start in schools in the first place. There are obvious answers to that question, including that the onset of sexual activity frequently occurs in high school.102 However, the more compelling answer requires understanding the essential role having comprehensive sex education in schools plays in obtaining the full benefits of meaningful contraceptive use for individuals of all ages.103 School-based sex education, or lack thereof, impacts contraceptive use at every age.104 More specifically, sex education in the school system significantly increases the likelihood of those individuals waiting to begin sexual activity and, most importantly, using contraception properly when they do.105 The question then becomes what the curriculum of sex education programs should include in order to achieve those goals.

As discussed, sex education programs in the United States frequently default to abstinence-only programs that provide little or no medically accurate information about contraceptives. However, this is precisely the type of sex education that does not achieve delayed sexual activity and safer future activity. Numerous studies have shown that adolescents who receive no sex education or abstinence-only education tend to engage in sexual activity sooner than do those who receive comprehensive sex education.106 These studies have also found that comprehensive sex education also results in safer future sexual activity since it increases the likelihood of contraception use at first intercourse.107 Therefore, it is only through comprehensive sex education that those goals of delayed and safer sexual activity can be fully attained.108 The importance of providing sex education in schools is clearly matched in importance by ensuring that the education provided is accurate and effective. This shifts the question to determining how comprehensive sex education could be required in all public schools.

It is well established law that education and its curricula are widely left to state discretion, which means that unless mandated by state law, the sex education programs that do exist have no accountability to provide accurate information.109 This can result in ineffective sex education programs that may misinform students in a way that will follow them into adulthood. The most efficient way to ensure that all students are receiving comprehensive sex education would be to federally mandate comprehensive sex education in all public schools.

There is precedent for allowing educative programs that are neither entirely under state control nor completely relevant to traditional academia. Many states mandate the presence of military recruitment in high school.110 Some schools go so far as to mandate that students take the Armed Services Vocational Aptitude Battery (ASVAB), which is used to determine qualifications for enlistment in the Armed Forces.111 Those students’ scores are then automatically released to recruiters.112 While these programs are not federally mandated, they establish a precedent of allowing information controlled by the federal government, and irrelevant to traditional academia, to be mandated in school systems because of its relevance to particular social and national interests. Similarly, comprehensive sex education is sufficiently relevant to specific social and national interests that the federal government should build on this precedent to mandate comprehensive sex education in all public schools.

Most importantly, this seemingly bold approach is actually quite obtainable under the current legal framework of contraceptive rights. From Griswold to Lawrence and the Convention and Contraceptive Mandate, it is undeniable that both the Supreme Court and federal and international law have recognized the fundamental right to contraceptives. Furthermore, these authorities have recognized that contraceptive education is necessary to extend the enjoyment of that Constitutionally protected right to all individuals. The best way to ensure the access to and accuracy of that education in every state is to mandate it at the federal level.

This proposed solution is not an argument that the federal government should control every aspect of comprehensive sex education. Rather, this solution asserts that contraceptive education is so uniquely essential to national interests and fundamental rights that no compelling state interest reserves it, in its entirety, for state control. That is not to say that certain aspects of sex education could not remain under state control. Just as choosing to have an abortion is a Constitutionally protected right with certain implementation aspects left to state control,113 certain aspects of implementing comprehensive sex education could similarly operate under state control. For example, whether a sex education program is instructed by a member of the school staff or by a qualified outside organization, such as Planned Parenthood, is an ongoing debate that could be left to state control.114 However, the fundamental requirement that comprehensive sex education be mandated in all public schools should not be up for debate. No authority that has recognized contraceptive rights has indicated those rights, or the national and individual interests and benefits associated with them, are dependent on geographic location or prevalent religious and cultural values held in a community. The enjoyment of those rights and their benefits are, however, dependent on ensuring that individuals have access to comprehensive sex education at an early age.115

Continuing in the Community

Providing wide-scale, comprehensive sex education in the controlled setting of a school system is the foundational step to ensuring that individuals have the proper information before or around the onset of sexual activity. However, contraceptive education cannot end there for many reasons, not the least of which is that not all people attend public schools. Additionally, it is important to ensure that this type of education, and the accuracy thereof, remains available to all individuals throughout adulthood. This is necessary to ensure that individuals always have current sources of accurate information and support as they begin or continue using contraceptives.116

So, the question becomes how states can go about providing that education throughout the community. As stated, states usually provide this by funding family planning programs and counseling. Therefore, while there are other obstacles to establishing effective community-based education, the first step is securing adequate funding to promote access.

Medicaid is the single largest public funding source for family planning services.117 However, this program does not cover everyone, and that is where other measures, such as Title X of the Public Health Services Act, step in.118 Title X grants the Secretary of HHS broad authority to enter into contracts with, and provide grants for, public or nonprofit entities.119 The purpose of those contracts and grants is to establish and operate voluntary family planning projects that assist in spreading access to family planning services and distributing sex education materials.120 Entities that participate in these programs must encourage family and adolescent participation in projects established and funded by the Act.121 As of 2019, about 4,000 family planning clinics relied on this Title X support.122

However, there are efforts to limit such funding. Republican-controlled states and executive administrations prioritize limiting Title X reimbursement as a way of restricting abortion access, which consequently restricts access to contraceptive education.123 This problem is best represented by Republican-controlled legislatures targeting family planning clinics’ funding through “de-funding” laws that strip family planning services of funding, to which they are otherwise entitled under Title X, simply because the clinic also offers abortion services.124 Therefore, the Supreme Court must grant certiorari to cases challenging these so-called “defunding laws” and eliminate the ability to defund contraceptive services that, unlike abortion funding, are protected by federal law and the Constitution.125 

Additionally, family planning services that are community based regardless of income or enrollment in public school must also be made available. This can be achieved through promoting community-based sex education programs such as those provided through independent state programs.126 However, the challenge here is ensuring that these programs are truly “comprehensive,” meaning that the information distributed is truly medically based and accurate.127 The attempt to provide federal legislation that will ensure that states’ family planning services are medically accurate has been a source of Congressional debate throughout the last two decades via the Prevention First Act.128 The Act’s purpose was to highlight the state of contraception laws in the United States and bring a solution through federal legislation that requires accurate information about sex education and pregnancy prevention as well as access to family planning services.129 These goals would be enforced on institutions at a state level and include ramifications for non-compliance.130 Despite multiple reintroductions, this bill has struggled to overcome the resistance of the organizations who are concerned, for political or religious reasons, as to what the Act’s implementation would demand of them.131 Therefore, the introduction of a similar bill would need to be prepared to face the same opposition.

Community-based comprehensive sex education has been recognized as an essential element of achieving the national interests associated with meaningful contraceptive use. However, it is equally clear that the largest opposition to achieving this goal may not be the lack of federal precedent, or even the lack of available funding. Rather, the challenge will be overcoming the obstacles that influence progress.

Obstacles to Mandating Comprehensive Sex Education

Obstacle to Adolescents: The Problem with Parent Consent

The adolescent-specific obstacle of parental consent requirement makes it difficult for adolescents in the United States to obtain contraceptives and contraceptive education both inside and outside of school.132 Currently, 40 states and Washington, D.C., require parent involvement in school-based sex education.133 Obtaining contraceptive services has also historically been a problem outside of school.

When Title X of the Public Health Service Act was enacted in 1970, there were no special provisions that prevented an adolescent from obtaining contraceptives. However, within just a decade of enactment, Title X was amended to require family planning clinics and schools to notify a guardian before prescribing or distributing any type of contraception to an unemancipated minor.134 Planned Parenthood filed multiple successful claims against the restriction, questioning its constitutionality and focusing on the need for an adolescent’s right to privacy and adequate sex education.135 In these suits, Planned Parenthood successfully pointed out that requiring notice to the parents would deter sexually active minors from attempting to obtain birth control, and the amendment was struck down.136 Nevertheless, parental consent remains an enormous barrier in all arenas of sex education in the United States.137

Sometimes parental consent is denied due to conservative parents’ protests of sex education that discusses anything beyond abstinence.138 Other times it is denied through parent intervention pursuant to state laws that permit parent review of program curriculum or allow parents to opt their child out of the program altogether.139 This continues despite the United States’ joining international treaties, such as the Convention on the Rights of the Child (CRC), that recognize the reproductive and sexual rights of minors and broadly protect adolescents’ contraceptive rights.140 The CRC recognizes that adolescents who are capable of understanding that they need reproductive safety and are capable of asking for it are also capable of receiving those services without parental oversight.141 Prohibiting adolescents’ access to contraceptive information and services based on the parent’s preference violates that individual’s rights to education and information.142

Moreover, many school systems and healthcare providers require parental consent before extending sex education services to minors. In 2019, 33 of the 44 states that require sex education in schools allow “opt-out” provisions that permit parents to remove their child from sex education programs for religious, moral, or family reasons.143 Four states actually require “opt-in” provisions that require affirmative parent consent, such as a permission slip, before allowing a student to attend sex education programs.144 Outside of school, no state currently has a blanket law that bans a minor from receiving contraceptives or contraceptive services.145 However, many states only permit certain categories of minors, such as those already married or who have a child, to freely obtain those services.146

While involving parents in a child’s reproductive health may be desirable, many adolescents will avoid attempting to obtain contraceptives and contraceptive education services if their parents must be involved.147 Therefore, requiring parental consent only continues to deprive those individuals of the immediate and future benefits of early comprehensive sex education and services, and adversely affects population health. Therefore, in mandating comprehensive sex education in the classroom and the community, the legislation should also eliminate the parental consent requirements and recognize the individual rights of privacy, reproduction, and contraceptive services for all individuals.

Obstacle to Everyone: Limiting Religious Influence

In the United States, the influence of religious ideologies on school and social programs has proven to be a recurring obstacle to establishing comprehensive sex education.148 While Griswold established that bans on contraceptives were unconstitutional in 1965, in 1973 Congress passed the Church Amendment.149 This was the first “conscience clause” that allowed religious institutions, such as Catholic hospitals, to refuse to provide contraceptive services, like tubal litigation.150 The next several decades saw similar trends of limiting contraceptive access and information on the basis of protecting religious beliefs, such as the establishment of federal conscience protections.151 These protections recognized the right of health services providers to deny contraceptive services based on their religious objections.152

In schools, the lack of mandatory federal guidelines gives local school districts broad discretion in setting the curriculum for sex education programs.153 This leads to inconsistency between states based on the local sense of religion or morality.154 The Establishment Clause recognizes the separation of church and state, which should, in theory, protect sex education in public schools from religious influence.155 However, the current interpretation of the Establishment Clause does not require complete separation between church and state, but rather that the government must act neutrally towards all religions.156 This allows the controversy of allowing religion to influence public school programs to be at the forefront of Constitutional issues today.157 The problem with the neutrality interpretation, when viewed through the lens of establishing sex education, is that it is difficult to successfully assert that a school board’s decision not to teach comprehensive sex education is inherently religious unless the board explicitly says so.158 Therefore, removing this religious influence through the judicial or legislative process has been historically difficult, since doing so would require concrete proof of religious motive.159

An easier way of approaching these school boards would be approaching the matter as the fundamental right it is. With that approach, per Carey, states would need a compelling government interest to deny establishing comprehensive sex education in their public schools.160 The primary argument usually made by these states is that adolescent sex leads to real secular harms.161 This argument is based on the premise that sex education increases adolescent sex.162 Since it has been recognized time and again that comprehensive sex education does not lead to increased sexual activity in adolescents, but actually results in delayed sexual activity, that argument would not meet the standard of a compelling government interest. Without a sufficient compelling government interest, those states could then be required to implement a more comprehensive sex education program based on nationally recognized and medically accurate contraceptive information.

As for religious opposition to sex education in the community, one of the most recent examples is the battle between presidential administrations with conscience clauses and religious exemptions to women’s healthcare services. In 2009, President Bush enacted an administrative rule that allowed healthcare professionals to invoke “conscience clauses” and refuse to provide or refer services to which those professionals held religious objections.163 This rule applied to insurance companies regarding their coverage of contraceptives and contraceptive education.164 In 2010, the Obama administration rescinded the Bush-era rule and attempted to resolve this issue of balancing religious and contraceptive rights through the PPACA Contraceptive Mandate’s self-certification exception, which allowed religious organizations to certify with the insurance provider so contraceptive services could be provided by other means.165 However, the exclusion from exemption for companies whose employers are religiously affiliated was quickly challenged.166 Furthermore, whether the compulsive self-certification itself violates the conscience of those with opposing religious beliefs proves to be a continued source of controversy.167     

In Burwell v. Hobby Lobby Stores Inc., owners of secular, for-profit organizations who had closely held religious beliefs independent from their stores or employees challenged their exclusion from eligibility for the religious exemption to PPACA’s Contraceptive Mandate.168 The Supreme Court held that their ineligibility did violate their religious freedoms and ruled that the religious exemption must also extend to those companies.169 However, the religious debate over the Contraceptive Mandate did not end there, as companies eligible for the exemption went on to challenge the certification requirement. In July 2019, the Third Circuit considered an appeal regarding whether the self-certification requirement violates religious freedom since the companies are required to initiate the certification that results in their employees receiving contraceptive coverage elsewhere.170 The Third Circuit upheld the Eastern District of Pennsylvania’s decision that it did not violate religious freedoms, a decision that was recently reversed by the Supreme Court.171

These fights over conscience protections did not end with the Obama administration, as the Trump Administration swiftly reinstated rules aimed to allow medical providers to conscientiously object to providing family planning services.172 This move was quickly challenged in the southern district of New York by nearly 20 states and barred from taking full effect.173 The issue also continues to be a source of tension in the early days of the Biden administration. Within a few months of inauguration, HHS rescinded Trump-era rules that allowed medical providers to object to sex transition procedures, which quickly led to a lawsuit in North Dakota.174

These lawsuits are key examples of how the United States, both historically and presently, allows religious influence to bar progress toward providing all individuals with comprehensive sex education. While religious beliefs are certainly a constitutional right worth protecting, those rights cannot extend to making individuals’ reproductive decisions for them. Allowing such would be a violation of women’s rights, basic human rights, and the Constitutionally protected right to privacy. In granting certiorari to Pennsylvania v. President of the United States­­,175 the Court once again had the opportunity to expound on balancing religious freedoms with contraceptive rights.176 Disappointingly, the Court overruled the Third Circuit and failed to establish that religious freedoms, while important, should not allow an employer’s religious belief to overcome the employees’ rights. Until the Court does so, religious influence will remain an obstacle to comprehensive sex education and prevent the United States from achieving the individual and national benefits associated with meaningful contraceptive use.

Conclusion: Moving Forward

Taking into consideration the benefits of meaningful contraceptive use and their ability to further national interests, the inability of the country’s current stance on sex education to further those interests, and the existing legal framework’s ability to support federal intervention, it is clear that comprehensive sex education must be mandated in the classroom and the community. Doing so will take overcoming significant obstacles, including parental consent requirements and religious influences. Nevertheless, overcoming these obstacles is necessary to allow both the United States and individuals of all ages to enjoy the benefits of meaningful contraceptive use. 


  1. Ford, L. & Holder, J., Contraception and family planning around the world – interactive, The Guardian (2016), (last visited Jan. 23, 2020). While there may be more recent statistics regarding general contraceptive use, this article will focus primarily on the numbers supported by the most recent, comprehensive United Nations data underlying Ford and Holder’s global contraception use analysis. Id.
  2. Sochacki, K., CEDAW and Treaty Compliance: Promoting Access to Modern Contraception, 51 Vand. J. Transnat'l L. 659, 661-64 (2018). It is worth noting that this article emphasizes the importance of contraceptive use and education for all individuals, not just women, as men also experience the benefits discussed. See generally Koffi, T.B., et. al, Engaging Men in Family Planning, 6.2 Science and Practice 317 (2018).
  3. Sochacki, supra n. 2
  4. Ford & Holder, supra n. 1.
  5. MacDorman, M.F., et al., Recent Increases in the U.S. Maternal Mortality Rate: Disentangling Trends From Measurement Issues, Obstetrics and Gynecology, U.S. National Library of Medicine.
  6. Ford & Holder, supra n. 1; See also infra n. 26-30 and accompanying text.
  7. Contraceptive Use in the United States, Guttmacher Institute (last visited Aug. 19, 2021),
  8. The contraceptives being improperly used included the least effective methods, such as withdrawal and rhythm, as well as modern methods, such as the pill and injectables. Id. The most effective, and least misused, contraceptives are those such as the IUD that require no user intervention. Id.
  9. Shartzer. A., et al., Knowledge Gaps and Misinformation about Birth Control Methods Persist in 2016, Urban Institute (2016), (last visited Aug 19, 2021).
  10. Pazol, K., et. al, Impact of Contraceptive Education on Contraceptive Knowledge and Decision Making, 49 (201) Am. J. Prev. Med. S46-S56 (2015).
  11. Id.
  12. In this context, comprehensive sex education is a term of art that means sex education that is specifically geared to include age appropriate, medically accurate, evidence- and rights-based sex education. Kossen, J., Rights, Respect, Responsibility: Advancing the Sexual and Reproductive Health and Rights of Young People Through International Human Rights Law, 15 U. Pa. J. L. & Soc. Change 143, 153 (2012). Moreover, comprehensive sex education educates individuals about the various types of contraceptives available and how to use them. Id.
  13. Darflinger, M., Honesty is the Best Policy: Sex Education and Accuracy, 29 J. Legal Med. 81, 84 (2008).
  14. Zoppo, D., The War on Women: Federal Remedies to Fight Back Against States That De-Fund Planned Parenthood, 37 Vt. L. Rev. 495, 503 (2012).
  15. Most rights provided in the Constitution are negative rights, meaning they exist in terms of preventing government restriction without due process. Knouse, J., Civil Marriage: Threat to Democracy, 18 Mich. J. Gender & L. 361, 367-368 (2012). But the Contraceptive Mandate seems to push access to contraceptives and contraceptive education closer to the realm of a positive right. This article builds off the Mandate’s precedent to approach contraceptive rights as positive rights. Since the national interests associated with contraceptive use can only be furthered if that use is meaningful, approaching contraceptive rights as positive rights to which the federal government has a duty to provide access is a necessary step.
  16. Sochacki, supra n. 2.
  17. Id.
  18. Bhatt, M.Y., A State’s Effort to Enhance Health Care: Empowering Pharmacists with Prescribing Authority, 12 St. Louis U. J. Health L. & Pol’y 367, 377 (2019) (citing U.S. Dep't of Health and Hum. Servs., Healthy People 2020 Summary of Objectives: Family Planning, OFF. DISEASE PREVENTION & HEALTH PROMOTION (Mar. 18, 2018),
  19. Sochacki, supra n. 2.
  20. Id.
  21. Sochacki, supra n. 2 at 665.
  22. Ford & Holder, supra n. 1.
  23. Id.
  24. MacDorman, supra n. 5.
  25. Ford & Holder, supra n. 1.
  26. Rhythm and withdrawal make up about 5% of North America’s total contraceptive use. Ford & Holder, supra n. 1. Nevertheless, these methods are also recognized as the most outdated and ineffective. Guttmacher Institute, supra n. 7.
  27. Ford & Holder, supra n. 1.
  28. Payne, C. & Fanarjian, N., Seeking Causes for Race-Related Disparities in Contraceptive Use, American Medical Association Journal of Ethics (2014). The most popular examples of LARCs are implants and copper or hormone-releasing IUDs because they are physician administered and have the lowest disparities between typical and perfect use. Guttmacher Institute, supra n. 7.
  29. Ford & Holder, supra n. 1.
  30. It is also worth noting that high rates of sterilization and limited access to long-term, reversible birth control are even more prevalent in minority women and welfare recipients. For minority women, this discrepancy is often the result of information being distributed disproportionately to white communities. For welfare recipients, understanding the discrepancy raises a concerning history of state sponsored sterilization through cash incentives for recipients who voluntarily undergo sterilization procedures. Payne & Fanarjian, supra n. 28; Blake, M., Welfare and Coerced Contraception: Morality Implications of State Sponsored Reproductive Control, 34 U. Louisville J. Fam. L. 31 (1996).
  31. Ford & Holder, supra n. 1.
  32. United Nations, Trends in Contraceptive Use Worldwide 2015, Department of Economic and Social Affairs, Population Division (2015).
  33. Maternal Mortality, UNICEF DATA,
  34. Ford & Holder, supra n. 1.
  35. Id.
  36. Id (showing the rate of contraceptive use of Germany, at 69.2% and the Netherlands, at 69.2%). Though both country’s usage rates are slightly lower than the United States, both also see better benefits associated with meaningful contraceptive use. See infra notes 38, 40 and accompanying text.
  37. Darflinger, supra n. 13 at 82.
  38. Espiritu, E.A., Congratulations! Your Umbilical Cord is Now State Property: A Comparative Analysis of Mississippi’s Cord Blood Law and the Fight against Teen Pregnancy in the United States, 41 New Eng. J. on Crim. & Civ. Confinement 183, 188 (2015).
  39. Id. at 486.
  40. Id.
  41. Bond, M., Winning the Battle, but Perhaps Losing the War: Endorsing Deregulation of Emergency Contraception at the Expense of Derogating Abortion, 15 Cardozo J. Int’l & Comp. L. 259, 266 (2007).
  42. Darflinger, supra n. 13 at 88.
  43. Id. at 89.
  44. Bond, supra n. 41 at 265.
  45. Darflinger, supra n. 13 at 89.
  46. See infra note 56 and accompanying text.
  47. Cornblatt, J., A Brief History of Sex Education, Newsweek (Oct. 25, 2019),
  48. Darflinger, supra n. 13 at 81.
  49. Id. at 84.
  50. Id.Abstinence Only Education States 2021, World Population Review, (last visited Aug 19, 2021).
  51. Darflinger, supra n. 13 at 84.
  52. Id. at 84.
  53. Beh, H.G. & Diamond, M., The Failure of Abstinence-Only Education: Minors Have a Right to Honest Talk About Sex, 15 Colum. J. Gender & L. 12, 28 (2006).
  54. Id. at 30; Taylor, J.E., Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053, 1063 (2010).
  55. Beh & Diamond, supra n. 53 at 30.
  56. Taylor, supra n. 54 at 1065.
  57. Id.
  58. Prata, N., Assistance to International Family Planning Programs, 13 U.C. Davis Int’l L. & Pol’y 19 (2006).
  59.  Id.
  60. Puryear, M., Hardline Ideology Stymies Real Results: Texas Lawmakers’ Battle Over Family Planning Leaves Texas Women Unprotected, 15 Scholar: St. Mary’s L. Rev. & Soc. Just. 829, 831 (2013).
  61. Id.
  62. Id. at 832.
  63. Minkler, D.H., IV. Demographic Trends and Policies in the Quest for Sustainability, 21 B.C. Envtl. Aff. L. Rev. 271, 276 (1994) (explaining Reagan and Bush Administration era policies that withheld funds for the United Nations Population Fund and “Mexico City Policy,” which led to halting support for the International Planned Parenthood Federation); Behn, M., The Trump Administration's Final Regulations Limit Insurance Coverage of Contraception, Women's Health Issues Journal (2019), (last visited Aug. 19, 2021) (discussing how  the Trump administration’s final regulations issued by HHS limited insurance coverage for contraception).
  64. Cornblatt, supra n. 47.
  65. Natbony, J., Sex Education in Schools, 11 Geo. J. Gender & L. 273, 282 (2010). Of note, half of that $176 million of funding was concentrated in 17 southern states. Id. This point also goes to demonstrating the role religious influences play in determining the sex education presented in the community. See discussion infra.
  66. Abstinence Only Education States 2021, supra n. 50.
  67. Stranger-Hall, K.F. & Hall, D.W., Abstinence-Only Education and Teen Pregnancy Rates: Why We need Comprehensive Sex Education in the U.S., PLOS One, US National Library of Medicine National Institutes of Health (2011). 
  68. Id.
  69. See discussion infra.
  70. Id.
  71. Id.
  72. Griswold v. Connecticut, 381 U.S. 479 (1965).
  73. Id. at 480.
  74. Id.
  75. Id. at 480-81.
  76. Id. at 485.
  77. Id.
  78. Id.
  79. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
  80. Id. at 454-455.
  81. Carey v. Population Services, Intern., 431 U.S. 678, 693 (1977).
  82. Id. at 678.
  83. Id. at 678-79.
  84. Lawrence v. Texas, 539 U.S. 558, 559 (2003).
  85. Sochacki, supra n. 2 at 664.
  86. Id. at 665.
  87. Id.
  88. Id. at 680-81.
  89. Id.
  90. Id.
  91. Id. at 665.
  92. United Nations Population Fund, The Right to Contraceptive Information and Services for Women and Adolescents, Center for Reproductive Rights (2010).
  93. Tschann, M. & Soon, R., Contraceptive Coverage and the Affordable Care Act, 42(4) obstet. Gynecol. Clin. North Am. 605-17 (2015).
  94. DiMungo, J.K., The Contraceptive Mandate and Religious Rights, 29 No. 25 WJINSC 01 (2019).
  95. Id.
  96. See discussion infra.
  97. DiMungo, supra n. 94.
  98. Id.see infra n. 166-169 and accompanying text.
  99. DiMungo, supra n. 94.
  100.  Id.see infra n. 177 and accompanying text. 
  101. See discussion infra.
  102. Cavazos-Rehg, P.A., et. al, Age of sexual debut among US adolescents, US National Library of Medicine National Institutes of Health (2011).
  103. Kossen, supra n. 12.
  104. Id.
  105. Id.; Sex education linked to delay in first sex, Guttmacher Institute (2017), (last visited Aug 19, 2021) (explaining that most sex education programs, including abstinence-only programs, teach individuals how to say no to sex and, therefore, lead to a delay in first sexual activity) (also emphasizing that abstinence-only programs are not associated with the other benefits of comprehensive sex education, such as the higher likelihood of using contraceptives in first sexual activity).
  106. Kossen, supra n. 12.
  107. Darflinger, supra n. 13 at 88.
  108. Kossen, supra n. 12 at 154.
  109. The Federal Role in Education, U.S. Department of Education (2021), (last visited Aug. 20, 2021) (explaining that public education and its curricula are widely left to state control); see also Darflinger, supra n. 13 at 81 (explaining that the absence of federal intervention has created a lack of accountability in sex education programs).
  110. Nava, P.R., Equal Access Struggle: Counter-Military Recruitment on High School Campuses, 44 J. Marshall L. Rev. 459 (2011) (explaining that school districts disproportionately allow military recruitment, versus counter-military recruitment, on high school campuses due the recruitment’s furtherance of national interests).
  111. The ASVAB Campaign, National Coalition to Protect Student Privacy,
  112. Id.
  113. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 878-79 (1992) (holding that states may regulate abortion prior to viability so long as such regulations do not constitute an undue burden to the individual seeking an abortion).
  114. Planned Parenthood, The Unstable State of Sex Education in the United States, Planned Parenthood Action Fund,
  115. See discussion infra
  116. Fileborn, B., et. al, Learning About Sex in Later Life, 17 Sexuality, Society and Learning 165 (2017) (explaining that learning about sex should be viewed as a lifelong endeavor).  
  117. Zoppo, supra n. 14.
  118. Id.
  119. 42 U.S.C.A. § 300.
  120. Id.
  121. Id.
  122. Salganicoff, A. & Ranji, U., Financing Family Planning Services for Low-Income Women: The Role of Public Programs, KFF (2019),,services%20to%20low%2Dincome%20individuals. (last visited Aug. 20, 2021).
  123. The most recent example of this defunding attempt came through the Trump Administration’s so-called “Gag Rule” that so heavily restricted Title X funding that Planned Parenthood elected to leave the program rather than attempt to comply with the new rule. However, the Biden Administration is in the final stages of finalizing its own rules that would rescind the Trump era rule. Adibi, I., et. al, Abortion, 22 Geo. J. Gender & L. 279 (2021); see also McCammon, S., Planned Parenthood Withdraws from Title X Program over Trump Abortion Rule, NPR (2019), (last visited Aug. 20, 2021).
  124. Zoppo, supra n. 14 at 496.
  125. Zoppo, supra n. 14 at 497.
  126. Ott, M.A., et. al, Community-Level Success and Challenges to Implementing Adolescent Sex Education Programs, Maternal Child Heath Journal (2011) (discussing Indiana’s “Indiana Reduces Early Sex and Pregnancy by Educating Children and Teens” program).
  127. Id.
  128. Shaw, J., The Preventing First Act Examined: An Overview of the State of Contraception Laws as Viewed through the Lens of Federal Legislation, 30 Women’s Rts. L. Rep. 700 (2009).
  129. Id.
  130. Id. at 702.
  131. Id. at 701.
  132. Abstinence only educationsupra n. 50.
  133. Id.
  134. Boumil, M.M., Dispensing Birth Control in Public Schools: Do Parents Have a Right to Know?, 18 Seton Hall L. Rev. 356, 357 (1988).
  135. Id.
  136. Id.
  137. Sneen, S.Y., The Current State of Sex Education and Perpetuation of Rape Culture, 49 Cal. W. Int’l L.J. 480-82 (2019). 
  138. Id. at 480.
  139. Id. at 482.
  140. Misasi, A., The Sexual and Reproductive Rights of Adolescents: The Implementation and Expansion of the Reproductive Rights of Adolescents Through the Convention on the Rights of the Child, 23 U.C. Davis J. Int’l L. & Pol’y 221, 221-22 (2017).
  141. Id. at 242.
  142. Id. at 244.
  143. Alemansour, M., et. al, Sex Education in Schools, 20 Geo. J. Gender & L. 467, 477 (2019).
  144. Id. at 477-78.
  145. An Overview of Consent to Reproductive Health Services by Young People, Guttmacher Institute (2020),
  146. Id.
  147. Id.
  148. Ott, supra n. 126 (noting that rural, socially conservative communities were less willing to adopt comprehensive contraceptive programs).
  149. Parr, K.A., Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections, 35 Am. J.L. & Med. 620, 631 (2009). See 42 U.S.C. § 300a-7 (1973) for the 1970s Church Amendment.
  150. Parr, supra n. 149.
  151. Id. at 639-40 (e.g., Church Amendment 42 U.S.C. § 300a-7 (1973)).
  152. Id.
  153. Rubenstein, R., Sex Education: Funding Facts, Not Fear, 27 Health Matrix 525, 543 (2017).
  154. Id.
  155. U.S. Const. amend I.  
  156. Id.
  157. Religion and School Choice at Heart of New Supreme Court Battle, ABC NEWS (2020) (demonstrating how religious influence in public schools, despite establishment clause, remains at the forefront of legal issues today),
  158. Merriam, J.R., Why Don’t More Public Schools Teach Sex Education?: A Constitutional Explanation and Critique, 13 Wm. & Mary J. Women & L. 539, 562 (2007).
  159. Id. at 563.
  160. Carey, 431 U.S. 678 at 693.
  161. Merriam, supra n. 158 at 566.
  162. Id.
  163. Parr, supra n. 149 at 620.
  164. Id.
  165. DiMungo, supra n. 94.
  166. Id.
  167. Pennsylvania v. Trump, 351 F. Supp. 3d 791, 798 (E.D. Pa. 2019).
  168. DiMungo, supra n. 94.
  169. Id.
  170. Pennsylvania v. President United States, 930 F.3d 543 (3d Cir. 2019), as amended (July 18, 2019), cert. granted sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918, 205 L. Ed. 2d 519 (2020), and cert. granted sub nom. Trump v. Pennsylvania, 140 S. Ct. 918, 205 L. Ed. 2d 519 (2020), and rev'd and remanded sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 207 L. Ed. 2d 819 (2020).
  171. Id.See also discussion infra n. 172 and accompanying text.
  172. New York v. United States Dep't of Health & Hum. Servs., 414 F. Supp. 3d 475 (S.D.N.Y. 2019).
  173. Id.
  174. Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d 1113 (D.N.D. 2021).
  175. Formerly Pennsylvania v. Trump, see supra n. 167.
  176. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 207 L. Ed. 2d 819 (2020).


Rebecca Hamilton


Rebecca Hamilton is a runner up in the 2020 American Bar Association Health Law Student Writing Competition. She graduated in May 2021 from the Mississippi College School of Law. She is also a proud graduate of Copiah-Lincoln Community College, where she received an associate degree in History and Political Science, and Delta State University, where she received a bachelor’s degree in Social Science Education. During her time as a law student, Ms. Hamilton studied Comparative Health Law in Europe and was elected President of MC Law’s Health Law Society. Since graduating, Ms. Hamilton has accepted a position as a Staff Attorney and Hearing Officer in the Mississippi Governor’s Division of Medicaid Appeals. She may be reached at [email protected].

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