Slate's Jurisprudence: Kansas Sex Ban Challenged

A Kansas statute that bans kids younger than 16 from having sex — even if they are consensual partners of the same age — is being challenged in court. The statute is of particular concern to reproductive rights groups because it requires healthcare providers to report all sexual activity of minors to authorities. Madeleine Brand talks with Slate legal analyst Dahlia Lithwick about the case.

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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

And I'm Alex Chadwick. Coming up, a new tourist attraction for New Orleans: neighborhoods devasted by Hurricane Katrina.

BRAND: But first, in Kansas, if you're under 16, it's illegal to have sex, even if it's concentual, and health care providers and educators are required to report any such sexual activity if they find out about it. A law suit challenging that law went to trial this week. Joining us for more is Dahlia Lithwick, she's legal analyst for the online magazine, Slate, and for us here at DAY TO DAY. And Dahlia, bring us up to date. The story really started back three years ago in 2003. Tell us what Kansas' attorney general did back then.

Ms. DAHLIA LITHWICK (Legal analyst, Slate Magazine): In 2003, June, Phil Kline, the attorney general, who is a vocal abortion opponent, issued a legal opinion, in which he said that all state health care professionals had to report any sexual activity by anyone under the age of 16 to state social services. Essentially, he said, all sex by anyone under 16 is abuse, and it's all to be reported. And that was read include a broad range of sexual activity, not just intercourse.

BRAND: Now, why did he do that?

Ms. LITHWICK: Well, I think that the answer is the same reason that he requested medical records of 90 women and girls who received late term abortions in Kansas. He said it was to protect their health, to investigate for evidence of child rape. His opponents say no, that's his cover, what he really wants to do is press and press and press on the privacy rights of women, making it harder and harder and harder for them to seek abortions at all.

BRAND: So, who filed the lawsuit in this case, and why?

Ms. LITHWICK: The lawsuit was filed by a New York entity, the Center for Reproductive Rights. It's a class action suit filed on behalf of a bunch of doctors, nurses, counselors, sex educators who say that this law now implicates everytime a teenager comes to them seeking birth control. Everytime a teenager comes to them seeking an AIDS test. They say, even when a teenager says in counseling, I'm thinking about necking with my boyfriend, what do you think? They're now mandated reporters. Their argument is, this has a chilling effect on their ability to counsel. If teenagers feel like they can't come forward and ask for basic medical services, or ask for basic medical opinions, they're not gonna come forward at all, and this violates the doctor/patient confidentiality agreement that they're supposed to have.

BRAND: And, as I understand it, this case has already gone up to the appeals court and back. What happened there?

Ms. LITHWICK: That's right. In 2004, the same district court judge who was hearing the case currently, issued a preliminary injunction, barring Kansas officials from enforcing the law as it was interpreted. Last week, the Tenth Circuit Court of Appeals, which is in Denver, struck down that injunction. They essentially said, no, go ahead and enforce this.

By a 2 to 1 vote, the court of appeals said that the state's interest in investigating child sexual abuse, outweighs the minor's rights to privacy. Now, with the injunction out of the way, it's back to the district court to determine on the merits whether this interpretation of the reporting law violates the rights of the healthcare providers.

BRAND: And there was a hiccup in the proceedings on Tuesday, when one state official testified. What happened there?

Ms. LITHWICK: There was a strange moment, after two and half years, and, I think, a fairly widespread understanding of what the attorney general's interpretation of the law was. The state assistant attorney general, while questioning one of the witness, started to argue with her about whether this reporting law implicates all sexual activity, or just sexual intercourse.

The assitant attorney general started to say, no, no, just sexual intercourse is at issue. And even the judge at some point became confused and said, I thought this was about behaviors far beyond sexual intercourse. So, now it's not even clear what we're fighting about, much less how we're gonna get to an answer.

BRAND: So, this case is being followed closely, at least by the news media. Is it also being watched by other states?

Ms. LITHWICK: It's being watched very closely by other states. On the one hand, there's a lot of people who are very impressed with Attorney General Phil Kline's very, very aggressive pursuit of abortion doctors, abortion clinics, healthcare providers. They're saying, hey, this is a really interesing and aggressive way to cut down the numbers of abortions being provided in the state. On the other hand, this is a very murky legal issue, Madeleine, because nobody's really clear on the sort of contours of what teenage privacy rights are. We know that they don't have the kinds of rights that adults have.

It's not clear, then, when the state right to sort of investigate what is harm to minors, waives their privacy right, and I think the more fundatmental question is, what is harm to minors? Is it possible that, in fact, all underage sex, even by consenting teenagers, and even if it doesn't amount to intercourse, is inherently harmful to minors? Those are legal questions we don't have answers to. And the answers that come out of Kansas will prove instructive for everyone else.

BRAND: Opinion and analysis from Dahlia Lythwick. She covers the Supreme Court for the online magazine Slate and for us here at DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

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