Statement of Mark Silverstein,
ACLU Legal Director

ACLU NEWS CONFERENCE:

December 22, 1998

Today the American Civil Liberties Union of Colorado, along with the ACLU's national office and Planned Parenthood of the Rocky Mountains, filed suit in Boulder District Court to challenge the constitutionality of the Parental Notification Act, which Colorado voters adopted through the initiative process on November 3.

In a nutshell, this law stops a pregnant teenager from obtaining an abortion unless her doctor provides notice to her parents and then waits 48 hours. With this unconstitutional law, the government sticks its nose where it doesn't belong. In doing that, it hurts minors.

Most teenagers who become pregnant discuss their options with a parent as well as their doctor. That is how it should be. But many families do not function as we would like. They are dysfunctional. Not all parents are loving and supportive. Not all parents have their children's best interests at heart.

Passing a law can not magically turn a dysfunctional and threatening family into a refuge to which teenagers can turn in their time of need. The kind of family communication we all believe is desirable cannot be achieved by government fiat.

This law is unwise, unnecessary, and unfair. It is also unconstitutional. That's why the ACLU, which represents Dr. Warren Hern, the Boulder Abortion Clinic, and their patients, has joined with Planned Parenthood's attorneys to file this lawsuit. We are filing this lawsuit to keep abortions safe and accessible for young women who need them. We are filing this suit to protect young women's constitutional right to reproductive choice.

Why does this law violate the Constitution? First, this law forbids doctors to provide emergency medical care that is necessary to preserve young women's health. For more than 25 years, the Supreme Court has said, time after time, that any government regulation of abortion must provide exceptions when continuing a pregnancy will harm a woman's health. There is no such "health exception" in this Colorado law. There is no exception that permits a doctor to proceed with an abortion even when it is necessary to prevent immediate, serious, and even irreparable harm to a minor's health. The law requires doctors to delay at least 48 hours even when that delay can cause kidney failure, coma, infection, or other serious harm. That is unconstitutional.

Second, this law provides no effective alternative procedure for a pregnant teenager in dire straits who feels that she cannot, or will not, involve her parents. The Constitution requires such an alternative procedure. Laws that mandate parental involvement have been upheld only when they provide what the Supreme Court calls a "judicial bypass." That means that a teenager must be given the chance to show a judge, in a quick and confidential proceeding, that she is mature enough to make the abortion decision herself, in consultation with her doctor, or that an abortion is in her best interest. If she persuades the judge, she must be permitted to obtain an abortion without involving her parents. The Colorado law does not contain the "judicial bypass" that the Constitution requires.

Third, the Colorado law defines "abortion" so broadly that it interferes with teenagers' access to at least some forms of birth control. For example, in a case of a broken condom or otherwise unprotected sexual relations, teenagers can reduce the risk of pregnancy if they obtain emergency contraception within 72 hours. Because Colorado's broadly-worded law applies to this form of contraception, doctors cannot issue a prescription until they first provide notice to the teenagers' parents and then wait 48 hours. This delay makes the prescription ineffective and futile. No court has ever permitted this kind of government interference with teenagers' access to birth control.

Our lawsuit asks the court to declare that the law is unconstitutional and to order that it cannot be enforced. We have also asked the court to issue a preliminary ruling before the law goes into effect.

more on this case

By Elliot Mamet

On June 23rd, 1972, President Nixon signed Title IX into law. Nearly 40 years later, the passage of Title IX is viewed as an unequivocal milestone in the struggle to protect, defend and expand civil liberties. As we celebrate Title IX’s 40th birthday, it is worth reflecting on its significance, as well as on the challenges that lie ahead.

Title IX mandates that federally funded institutions may not exclude or discriminate from an educational program or activity on the basis of sex. The law leverages federal funds in order to require equal opportunity for men and women. There are exceptions to Title IX (like sororities or the Boy Scouts), although in general, Title IX has applied quite broadly and unilaterally to different institutions. Through Title IX, the doors have opened a little wider for equal opportunity in the United States.

Title IX shattered the stereotype that women are too “fragile” or “weak” to play sports, but Title IX goes so much further than sports. By prohibiting discrimination based on non-conformity with gender stereotypes, Title IX has been used as an effective tool for defending the civil rights and civil liberties of LGBT students. Additionally, Title IX prohibits discrimination and harassment based on students’ gender identity, change of sex, and/or transgender status.

Yet even with these successes, enforcing Title IX still has its challenges. One important concern for policymakers is applying Title IX in a way that is conscious of the diversity of gender expression. In a society where gender and sexual orientation mean different things to different people, self-identifying as the normative “male” or “female” can be difficult. A sound approach to Title IX regulation would prioritize meeting the needs of participants in a particular sport or program. Federally funded institutions should allow students to participate in programs and sports based on the gender with which they identify, in a way that is conscious to individual needs. In this way, programs and activities could act as a safe space where program leaders are more sensitive to the diversity of gender expression.

Looking back at the past 40 years under Title IX, it is clear that Title IX has grown to reflect a fundamental mindset—that human institutions, whether the soccer team or a PhD program—shouldn’t shut out certain categories of people a priori. If the Declaration of Independence and the Emancipation Proclamation mean anything at all to us today, surely they must be interpreted as another step on our quest to “make declarations of freedom real,” as Martin Luther King Jr. said. And surely, in its own way, Title IX reflects that quest. It is today, nearly 40 years after Title IX was passed into law, that Title IX’s lessons must be heeded with the utmost resolve.

Elliot Mamet is the summer Colorado College Public Interest Fellow at the ACLU of Colorado. He is an incoming sophomore at Colorado College, a four-year, private liberal arts school, where he is studying political science.

This post originally appeared on the ACLU Blog of Rights