Indiana Law Review 716 INDIANA LAW REVIEW [Vol. 8:716 Minors and Contraceptives in Indiana I. Introduction A discussion of teenage sexuality tends to activate attitudes and fears not conducive to rational decision-making. The contro- versy surrounding sex education indicates that sex-related infor- mation is still viewed by many as a cultural taboo which should be kept hidden from inquiring young minds. Sexual ignorance does not, however, discourage sexual experimentation. Rather, it allows response to social and biological pressures to become sexu- ally active without appreciation of the possible consequences of that activity. The purpose of this Note is to show that, because teenage sexuality realistically cannot be proscribed, an effort must be made to minimize the short and long term deleterious effects of such activity. II. Effects of Sexual Activity Among Minors In extending the right to consent to medical care necessary for the treatment of venereal disease to individuals below the age of twenty-one, 1 the Indiana General Assembly, in effect, recog- nized that unmarried minor individuals participate in sexual in- tercourse and that medical problems requiring legislative solution may result therefrom. This recognition was necessary in light of the incidence of venereal disease among young people. In 1973 alone, 4,087 cases of gonorrhea and syphilis were reported in Indiana in individuals below the age of twenty, which was 32.6 percent of all cases reported for that year. 2 The statute passed by Any person under the age of twenty-one (21) years who has, suspects he or she has, or who has been exposed to any venereal disease, shall be competent to give consent for medical or hospital care or treatment of himself or herself. Act of Feb. 20, 1969, ch. 43, § 1. Ind. Pub. L. No. 97, § 10 (April 24, 1973), deleted "under the age of twenty-one (21) years." Current language is codi- fied at Ind. Code § 16-8-5-1 (Burns 1973). 2 Table I Incidence of Venereal Disease in Indiana—1973 Total Female Female Total Cases Cases Cases Cases in Age Female in Range in Range in Range Range Cases Compared to Compared Compared (male & in Age Total Cases in to Total to Total Age Range female) Range Range (%) Cases (%) Cases (%) Below 10 23 18 78.3 .1 .2 10-14 131 102 77.9 .8 1.0 15-19 3933 2141 54.4 17.1 31.4 1975] MINORS AND CONTRACEPTIVES 717 the legislature encourages young individuals exposed to venereal disease to seek medical treatment without parental intervention. 3 Venereal disease is not, of course, the only problem resulting from sexual intercourse among minors. Of the 83,882 total births in Indiana in 1973, 9,409 (11.2 percent) were illegitimate.4 Of these illegitimate births, 4,167 were to women below the age of nineteen, amounting to 44.3 percent of the total illegitimate births for that year. 5 Although, in Indiana, abortion was not a legal alternative to pregnancy until May, 1973, 6 621 or 36.7 percent of the 1,692 abortions reported in this state through December, 1973, were performed upon women below the age of twenty.7 It Below 20 4087 2261 55.3 18.0 32.6 Total Cases 12530 4927 39.3 39.3 100.0 From Semi-Annual Reports of Civilian Cases of Primary and Secondary- Syphilis and Gonorrhea by Reporting Source, Color, Sex, and Age Group, June 30 & Dec. 31, 1973 (unpublished reports filed with Indiana State Board of Health, Division of Communicable Disease Control). 3The statute also encourages physicians to provide medical treatment. See text accompanying notes 39-53 infra. 4 Table II Incidence of Illegitimacy in Indiana—1973 Illegitimate Illegitimate Births in Range Births in Range Illegitimate Compared to Compared to Births in Age Total Illegitimate Total Births* Range 3 36 Births (%) (%) .4 .0 206 2.2 .2 562 6.0 .7 983 10.4 1.2 1156 12.3 1.4 1221 13.0 1.5 2946 31.3 3.5 4167 44.3 5.0 9409 100.0 11.2 Age Range 12 13 14 15 16 17 18 12-17 12-18 Total Illegitimate Births * Total Births = 83,882 From unpublished computer data available from Indiana State Board Health, Division of Public Health Statistics. 5 See Table II, supra note 4. 6Ind. Pub. L. No. 322 (April 24, 1973), codified at Ind. Code §§ 35-1-58.5-1 4 (Ind. Ann. Stat. §§10-107 to -110, Burns Supp. 1974). 7 Table III Incidence of Abortions Reported in Indiana—1973 Total Abortions in Total Abortions in Age Range 43 578 621 of to Age Range Below 15 15-19 Below 20 Range Compared to Total Abortions (%) 2.5 34.2 36.7 718 INDIANA LAW REVIEW [Vol. 8:716 is reasonable to assume that a large percentage of these young women were not married at the time. Since 4,788 young women were reported to have had either an illegitimate child or an abor- tion in 1973, and only 2,261 cases of venereal disease were re- ported for women below the age of twenty,8 the need for legisla- tive efforts to avoid teenage pregnancy, as well as teenage vener- eal disease, is evident. This conclusion is further strengthened by indications that sexual activity among teenagers has greatly in- creased in recent years, 9 calling into question the efficacy of cur- rent statutory schemes. III. Legislative Proscription of Sexual Activity Among Minors Prior Indiana statutory efforts to control teenage sexual activity, except for the venereal disease consent statute, 10 have largely been directed against the sexual act itself rather than against the problems which are caused by the sex act. Any pre- ventive aspects of the statutes lie in their provisions for punish- ment of illicit sexual activity. A. Rape Statutes One of the traditional efforts to discourage sexual intercourse with young females is represented by the statutory rape clause of the general rape statute, 11 which provides strict liability for one having sexual intercourse with a female child below the age of sixteen. 12 The statute comprehends no consent defense, for neither force nor lack of consent are elements of this purely statutory offense. 13 The two to twenty-one year determinant sen- tence when the woman is between twelve and sixteen years old, and the life sentence when the woman is less than twelve years Above 19 1071 63.3 Total Abortions 1692 100.0 From Reports of Induced Abortions by County and Age, Period Jan. 1, 1973, to Dec. 31, 1973 (unpublished chart filed with Indiana State Board of Health, Division of Vital Statistics). 8See Table I, supra note 2. These statistics are relied upon only for com- parison. The stigma attached to venereal disease, abortion, and illegitimacy, as well as other factors, may result in inaccuracies in the figures due to un- reported instances of these problems. 9Time, Nov. 25, 1974, at 91. 10Ind. Code § 16-8-5-1 (Burns 1973). "Id. § 35-13-4-3 (Ind. Ann. Stat. § 10-4201, Burns Supp. 1974). 12 "Whoever has carnal knowledge of ... a female child under the age of sixteen [16] years ... is guilty of rape . . . ." Id. 13Mann v. State, 205 Ind. 491, 186 N.E. 283 (1933). See also Kelly v. State, 258 Ind. 196, 280 N.E.2d 55 (1972) ; Caudill v. State, 224 Ind. 531, 69 N.E.2d 549 (1946) ; Eckert v. State, 197 Ind. 412, 147 N.E. 150 (1925). 1975] DANGEROUS DRUGS 719 old, 14 serve as a positive deterrent to a male wishing to have sex- ual intercourse with her.' 5 The statute produces inequitable re- sults if the victim manifested her consent to the sexual contact and reasonably appeared to her partner to be past the age of con- sent. But the legislature, in an attempt to protect the interests of the woman, has determined that women below the age of sixteen shall not be competent to give such consent. 16 If the woman has reached the age of sixteen, the sexual con- tact, to constitute rape, must be "forcibly against her will." 17 The criminal assault and battery statute 18 also contains specific pro- visions against sexual contact amounting to assault and battery upon individuals below the age of seventeen, 19 but this statute re- quires not only an overt act, but also a specific intent to gratify sexual desires. 20 When this specific intent cannot be established, the State may rely upon the more general statute of assault and battery with intent to commit a felony.21 B. Juvenile Delinquency Statutes The juvenile delinquency statute,22 which allows minors who come within the provisions of the statute to be treated as mis- demeanants, may be used against minors who participate in illicit sexual intercourse. As held in Tullis v. Shaw,73 this activity con- stitutes indecent and immoral conduct as contemplated by the statute. It is a misdemeanor to knowingly contribute to or en- courage such conduct24 if the offender also has knowledge of the ,4Ind. Code §35-13-4-3 (Ind. Ann. Stat. §10-4201, Burns Supp. 1974). 15 The word "whoever" as used in this statute [defining the offense of rape of a female child under the age of sixteen years] includes every male person with sufficient age and development to perform sexual intercourse and sufficient mentality to entertain a criminal intent. Caudill v. State, 224 Ind. 531, 535, 69 N.E.2d 549, 550-51 (1946). 16The proposed Indiana Penal Code would place "statutory rape" within "indecent liberties with a child," would extend its protection to include male and female individuals below the age of sixteen, and would restrict the reach of the statute to persons eighteen years or older. Indiana Criminal Law Study Comm'n, Indiana Penal Code § 35-12.1-4-3 (Proposed Final Draft, 1974). 17Ind. Code §35-13-4-3 (Ind. Ann. Stat. §10-4201, Burns Supp. 1974). ' 8Id. § 35-1-54-4 (Ind. Ann. Stat. § 10-403). « ]9Id. 20See, e.g., Markiton v. State, 236 Ind. 232, 139 N.E.2d 440 (1957) (ap- plying statutory intent requirement unchanged in the statute's present form). 2, Ind. Code § 35-1-54-3 (Ind. Ann. Stat. § 10-401, Burns Supp. 1974). 27Id. §31-5-4-1 (Burns 1973). 23169 Ind. 662, 83 N.E. 376 (1908). 24Ind. Code §31-5-4-2 (Burns 1973). 720 INDIANA LAW REVIEW [Vol. 8:716 victim's minority. 25 Thus, the State may reach and punish both the minor and the one encouraging the conduct, but with less harsh penalties than are prescribed for the felonies of rape and assault and battery with intent to gratify sexual desires. C. Other Statutes Other statutes are used in an attempt to discourage illicit sexual intercourse. An anti-fornication statute may reach this re- sult, usually by making such activity a misdemeanor. The Indi- ana statute26 is deficient for these purposes since it is directed against cohabitation and does not include occasional acts of sexual intercourse. 27 An unmarried female28 or her father or guardian29 may sue for damages under the civil seduction recovery statute if she has not reached eighteen. 30 The statute thus subjects a male having sexual intercourse with a female below the age of eighteen to possible civil as well as criminal liability. D. Efficacy of Statutory Proscription The venereal disease31 and illegitimate pregnancy32 statistics indicate that the provision of penalties for illicit sexual activity is insufficient as a deterrent to such activity. Despite the pos- sible legal implications of her actions, a minor woman who has become sexually active may be as fertile as an adult woman, but may be far less financially and emotionally able to cope with preg- nancy, childbirth, and motherhood. Because of her physical im- maturity, 33 she may expose herself to increased risks of pregnancy complications and expose her child to increased risks of infant mortality. She may be required by school policy to leave school "Davidson v. State, 249 Ind. 419, 233 N.E.2d 173 (1968). 26Ind. Code § 35-1-82-2 (Ind. Ann. Stat. § 10-4207, Burns 1956). 27The proposed Indiana Penal Code makes no reference to an anti-forni- cation statute. Rather, it would rely upon other proposed codifications to dis- courage nonconsensual sexual contacts. Indiana Criminal Law Study Comm'n, Indiana Penal Code §§ 35-12.1-4-1 (rape), -2 (deviate sexual conduct), -3 (in- decent liberties with a child). 28Ind. Code §34-1-1-5 (Burns 1973). 29Id. §34-1-1-6. 30Id. § 34-4-4-1 (Burns Supp. 1974) (abolishes cause of action for seduc- tion of females eighteen and over). 31 See Table I, supra note 2. 32See Table II, supra note 4. 33See Menken, Teenage Childbearing : Its Medical Aspects and Implica- tions for the United States Population, in 1 United States Comm'n on Popu- lation Growth and the American Future, Research Reports 331, 335 (C. Westoff & R. Parke, Jr., eds. 1972). ~~ 1975] DANGEROUS DRUGS 721 during her pregnancy, 34 or it may be necessary for her to leave school in order to support her child. She may choose to give up the child for adoption or be forced by social pressures to marry before she would otherwise have chosen to do so. Her family may assume the added burden of support, or the State may force the putative father to fulfil his legal support obligations. 35 Whatever the woman's decision may be, it will unalterably affect her future opportunities. 36 IV. Contraceptive Information, Treatment, and Devices A. Liability of the Physician Contraception allows the woman to avoid the far-reaching consequences of pregnancy and the necessity of resorting to abor- tion, itself a source of great controversy. By increasing the avail- ability to minors of contraceptive information, treatment, and de- vices, a decrease in teenage pregnancy and venereal disease should logically follow. However, the more effective impermanent con- traceptive methods for women, such as the oral contraceptive, the diaphragm, and the intra-uterine device, require individual medical attention. A physician, rather than a legislator or a judge, is in the position to ascertain the contraceptive needs of the woman and to advise her as to the methods best suited for those needs. Medical training is necessary to weigh the relative risks of the oral contraceptive against its protective value, 37 to determine the advisability of an intra-uterine device or a diaphragm, or to de- cide whether the condom would be preferable to methods which re- quire more medical attention.38 However, a physician may be prevented from providing con- traceptive treatment to a minor by basic tort law which seeks to protect individuals from unauthorized invasions of the body by requiring that such contacts be validly consented to by the re- 34 A 1968 study of school systems with 12,000 or more students was conducted by the Educational Research Service. One-third of the 154 systems queried required girls to leave school as soon as it was known that they were pregnant. An additional one-fifth forced them to leave well before the end of pregnancy. Id. at 348. 35Ind. Code §§ 31-4-1-1 to -33 (Burns 1973). 36See Menken, supra note 33, at 335. 37See Berman & Dolan, The Oral Contraceptive: An Interest Analysis, 21 Kan. L. Rev. 493 (1973). ZbSee David, Unwanted Pregnancies : Costs and Alternatives, in 1 United States Comm'n on Population Growth and the American Future, Re- search Reports 439 (C Westoff & R. Parke, Jr., eds. 1972). 722 INDIANA LAW REVIEW [Vol. 8:716 cipient. 39 Medical treatment, such as the pelvic examination re- quired in the process of prescribing contraceptives to women, would constitute an invasion of the body. Not only must consent to the treatment be obtained so that the treatment will not amount to a technical battery 40 but, as well, the consent must be volun- tary and informed and made by a person capable of consenting.41 It is this "capacity to consent" requirement which causes most of the problems in the area of medical treatment for minors. A child is considered to be incapable of exercising the requisite in- formed consent; the parent or guardian of the child must provide this consent. 42 A physician treating a minor without such consent would be open to a possible suit by the parents for assault and battery. 43 Although the damages recoverable by the parents would apparently be limited to medical expenses and loss of the child's services, 44 the threat of litigation may discourage the physician from providing the services he considers necessary.45 Research re- veals no successful prosecution of a physician for contraceptive treatment of a minor without parental consent, though present attempts by various parent groups to recover for such unauthorized treatment46 would indicate that a physician's fear of liability is not completely without basis. 39"A person of full capacity who freely and without fraud or mistake manifests to another assent to the conduct of the other is not entitled to maintain an action of tort for harm resulting from such conduct." Restate- ment of Torts § 892 (1939). 40"[A] surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent by the patient; . . . the surgeon is liable in damages if the operation is unauthorized." Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941). 4) See Rozovsky, Consent to Treatment, 11 Osgoode Hall L.J. 103, 107 (1973). 42 The manifestation of assent by a person so young or so mentally defective that he does not understand the nature or effect of an act done is not a defense to an action for such act. The assent of a par- ent or guardian or of a person standing in like relation to such a person, however, is a defense to an action by such person, if the parent or guardian had power to require him to submit to the act. Restatement of Torts § 892, comment e (1939). See Wadlington, Minors and Health Care: The Age of Consent, 11 Osgoode Hall L.J. 115 (1973). 43Ind. Code § 34-1-1-8 (Burns 1973) (parent's action for injury to or death of child). 44See generally 59 Am. Jur. 2d Parent and Child §§112, 118 (1971). A5See Pilpel & Ames, Legal Obstacles to Freedom of Choice in the Areas of Contraception, Abortion, and Voluntary Sterilization in the United States, in 6 United States Comm'n on Population Growth and the American Future, Research Reports 55, 62 (C. Westoff & R. Parke, Jr., eds. 1972). 46See, e.g., Sarkkinen v. Planned Parenthood Ass'n, Cause No. 74-132 (Starke County Cir. Ct., Ind., venued Mar. 20, 1974). 1975] MINORS AND CONTRACEPTIVES 723 B. Exceptions to Physicians' Liability Various common law exceptions to the requirement of paren- tal consent have been recognized to allow a physician to escape the technical battery liability. A physician may provide treat- ment under circumstances constituting an emergency. If the minor is emancipated, or if the parents are so remote that obtaining their consent is impracticable, the physician may likewise treat the minor. 47 It has also been recognized that the consent of a minor of sufficient age and maturity may be valid if she is able "to understand and comprehend the nature of the . . . procedure, the risks involved and the probability of attaining the desired re- sults in light of the circumstances which attend."48 This is the so-called "mature minor rule" which removes the minor's inca- pacity to consent to bodily invasions. Consent to medical treat- ment by such a minor thus provides a valid defense to technical battery. 49 In Indiana, as in most states, the age of majority for medical consent purposes is statutory, as are the various exceptions to the incompetency of those below majority. An individual must be at least eighteen to be competent to consent to medical or surgical treatment. 50 If a minor is unmarried and unemancipated, consent must be provided by a parent, by a legal guardian, or by the agency having legal control over the minor.51 If the minor is emancipated or married,52 he may consent to medical treatment. Methods of consent otherwise lawful are not excluded by the statutes, and no consent is required in an emergency.53 Like Indiana, all jurisdictions except Wisconsin allow indi- viduals below the age of eighteen to consent to treatment for venereal disease. 54 Unlike Indiana, however, twenty-three juris- dictions have extended the consent capacity for contraception to 47Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941). 48Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 300, 469 P.2d 330, 337 (1970). 49 If the child . . . , though under guardianship, is capable of ap- preciating the nature, extent and consequences of the invasion, his assent prevents the invasion from creating liability, though the assent of the parent, guardian or other person is not obtained or is expressly refused. Restatement of Torts § 59, comment a (1934). 50Ind. Code § 16-8-3-1 (Burns 1973). 5} Id. §16-8-3-1 (a). 52Id. § 16-8-4-1. 53Id. § 16-8-3-2. 54Paul, Pilpel & Wechsler, Pregnancy, Teenagers and the Law, 1974, 6 Family Planning Perspectives 142, 143 (1974). 724 INDIANA LAW REVIEW [Vol. 8:716 individuals below eighteen,55 and sixteen jurisdictions currently allow minors to consent to abortion. 56 This effort to deal with the illegitimate pregnancy problem of teenage sexual activity has been accomplished by various devices. Statutes after the Colorado model provide a specified group of individuals, including physi- cians, clergymen, state agencies, and family planning clinics, who may refer the minor for birth control procedures.57 Mississippi is illustrative of the few jurisdictions which have both followed the Colorado model for birth control procedures58 and codified the "mature minor rule."59 Other approaches have included provisions that a minor has the same capacity to consent as does an adult for certain medical treatment, including contraception and preg- nancy-related care, 60 that "any person without regard to age" may give consent to certain treatment, 61 or that consent of the minor shall be sufficient for the purposes of the specified treatment. 62 Several states allow the physician to inform the minor's parents of the treatment without the minor's consent,63 although this might have the effect of discouraging the minor from seeking necessary treatment. Some states also remove financial responsibility for the treatment from the parents when the minor has provided the consent. 64 Such a provision would be beneficial in states in which minors' contracts are void or voidable, as they are in Indiana. 65 C. Sources of Contraceptive Policy These various state efforts to extend to minors the power of consent for sex-related medical treatment have received encour- agement from several sources. The United States Commission on Population Growth and the American Future recommended that "states adopt affirmative legislation which will permit minors to receive contraceptive and prophylactic information and services in 55Id. Indiana would have achieved this result if Ind. H.R. 1148, 98th Gen. Assembly, 2d Sess. (1974), had passed last term. However, it was de- feated by a vote of nineteen to seventy-six on January 17, 1974. See 1974 Ind. House J. 187. s6Paul, Pilpel & Wechsler, supra note 54, at 143. 57Colo. Rev. Stat. Ann. §91-1-38 (Supp. 1971). See also III. Ann. Stat. ch. 91, § 18.7 (Smith-Hurd Supp. 1974) ; Tenn. Code Ann. § 53-4607 (Supp. 1974). 58Miss. Code Ann. §41-42-7 (Supp. 1974). 59Id. § 41-41-3 (h) (1973). 60Md. Ann. Code art. 43, § 135(a) (3) (Supp. 1974). 61 Ore. Rev. Stat. § 109.640 (1973). 62Ky. Rev. Stat. Ann. § 214-185(1) (Supp. 1974). 63See, e.g., id. § 214-185(5). 64Id. §214.185(6). 65Ind. Code §29-1-18-41 (Burns 1972). 1975] MINORS AND CONTRACEPTIVES 725 appropriate settings sensitive to their needs and concerns." 66 The mandatory Medicaid coverage now directs that family planning services and supplies be furnished "to individuals of child bear- ing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies."67 Congress has also declared, as one pur- pose of the Family Planning Services and Population Research Act of 1970, 68 its desire "to assist in making comprehensive family planning services readily available to all persons desiring such services," 69 which impliedly includes minors. 70 Moreover, Con- gress has provided additional means to improve the availability of contraceptives by amending provisions71 which had formerly included devices for "preventing conception" as obscene matter which could not be mailed, imported into the United States, or transported in interstate commerce under penalty of criminal sanctions. 72 However, contraceptive availability is nonetheless hindered by provisions that unsolicited contraceptive materials are generally "nonmailable." 73 The American Medical Association, the American College of Obstetricians and Gynecologists, the Ameri- can Academy of Pediatrics, the American Academy of Family Physicians, the American College Health Association, the Asso- ciation of Planned Parenthood Physicians, and the American Pub- lic Health Association have endorsed the right of physicians to provide contraceptive care for the best interests of their minor patients. 74 The National Association of Children's Hospitals and Related Institutions has endorsed a Medical Bill of Rights for Minors which would allow them to receive medically accepted con- 66United States Comm'n on Population Growth and the American Future, Population and the American Future 100 (C. Westoff & R. Parke, Jr., eds. 1972). 6742 U.S.C. §1396d (a)(4)(C) (Supp. Ill, 1973). 6842 U.S.C. §300 (1970). 69Id. 70See P. Piotrow, World Population Crisis 230-31 (1973). 71 18 U.S.C. §§ 1461-62 (1970), as amended by Act of Jan. 8, 1971, Pub. L. No. 91-662, 84 Stat. 1973. 72Indiana still has a statute which makes illegal the printing or publish- ing of an advertisement for drugs or instruments to be used exclusively by females in preventing conception. Ind. Code § 35-1-84-1 (Ind. Ann. Stat. § 10-2806, Burns 1956). There is no record of a prosecution under this statute, but an Attorney General opinion construing the statute was pro- vided in 1923. [1923-1924] Ind. Att'y Gen. Rep. 375. However, this statute is of highly questionable constitutional validity. See Associated Students for the Univ. v. Attorney General of the United States, 368 F. Supp. 11 (CD. Cal. 1973). 7339 U.S.C. § 3001(e) (1970). This statute has been criticized as provid- ing "an additional obstacle to freedom of choice in the area of contraception." Pilpel & Ames, supra note 45, at 60. 74 Paul, Pilpel & Wechsler, supra note 54, at 144. 726 INDIANA LAW REVIEW [Vol. 8:716 traceptive information and devices in doctor-patient confidential- ity. 75 Public opinion also apparently favors minor's access to sex- related treatment, as evidenced by a June, 1972, Gallup Poll which revealed that three out of four people agreed with the proposition that "professional birth control information, services and coun- seling should be made available to unmarried teenagers who are sexually active." 76 V. Constitutional Rights of Sexually Active Minors A. In General The move towards recognition of minors' rights in the area of sexual activity may be supported on constitutional grounds.77 The courts have already extended various constitutional rights to minors. As stated for the Supreme Court by Justice Fortas, "what- ever may be their precise impact, neither the Fourteenth Amend- ment nor the Bill of Rights is for adults alone."73 The fourteenth amendment and the Bill of Rights may, however, afford less pro- tection to the interests of minors than to the interests of adults. In juvenile delinquency proceedings, minors have the rights to notice of charges, to counsel, and to confrontation and cross-exam- ination of witnesses, and the privilege against self-incrimination ; /9 minors do not, however, have the constitutional right to trial by jury in those proceedings.60 The Court has encouraged greater limitations on minors' access to possibly obscene materials than upon adults' access by allowing the states to apply a broader defi- nition of obscenity to matters concerning minors81 and by recog- nizing "that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of . . . exposure to juveniles." 82 Although high school students have fundamental constitu- tional rights of speech and expression,83 school officials may regu- 753 Family Planning/Population Rep. 72 (1974). 76 1 Family Planning/Population Rep. 11 (1972). 77Note, Minors and Contraceptives: A Constitutional Issue, 3 Ecology L.Q. 843 (1973). 7SIn re Gault, 387 U.S. 1, 13 (1967). 79In re Gault, 387 U.S. 1 (1967). 80McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Accord, Bible v. State, 253 Ind. 373, 254 N.E.2d 319 (1970). But see 3 Ind. Legal F. 547 (1970) (criticizing the rule). 8, Ginsberg v. New York, 390 U.S. 629 (1968). 82Miller v. California, 413 U.S. 15, 18-19 (1973). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). 83Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). 1975] MINORS AND CONTRACEPTIVES 727 late those rights upon "a specific showing of constitutionally valid reasons" for doing so. 84 Students facing temporary suspension from public schools are entitled to due process protection in the form of notice of charges and an opportunity for hearing,65 but students "whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school."86 Federal courts are split on the question of whether high school dress codes against long hair violate a student's constitutional rights. 87 Although at least one district court would allow students to "have the same rights and enjoy the same privileges [under the Constitution] as adults," 88 the Supreme Court has declined to settle the area.89 The United States District Court for the Eastern District of Pennsylvania ostensibly recognized a fundamental right of pri- vacy in students90 but may have been more concerned with pro^ tecting the privacy of the relationship between parent and child.91 This concern is indicative of the judicial attitude which has dis- couraged more rapid extension of constitutional rights to minors. The Supreme Court has recognized that "the custody, care and nurture of the child reside first in the parents,"92 and that there is a "private realm of family life which the state cannot enter."93 However, the state as parens patriae "has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare . . . ." 94 The constitutional rights of the child may more properly be viewed as a balance struck between the parents' rights of control and the state's power over public welfare. The minor as an indi- vidual has few constitutional rights which preponderate against both the state and his parents. For example, the due process rights of minors in delinquency proceedings are designed to protect the rights of parents as well, 95 and the right of expression granted minors is apparently not intended to conflict with the interests of a4Id. at 511. 85Goss v. Lopez, 95 S. Ct. 729 (1975). &6Id. at 740. 67Compare Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), and Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970), with Ferrell v. Dallas Independent School Dist., 392 F.2d 697 (5th Cir. 1968), and Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970). 88Miller v. Gillis, 315 F. Supp. 94, 99 (N.D. 111. 1969). a901ff v. East Side Union High School Dist., 445 F.2d 932 (9th Cir. 1971), cert, denied, 404 U.S. 1042 (1972) (Douglas, J., dissenting). 90Merriken v. Cressman, 364 F. Supp. 913 (E.D. Pa. 1973). 9 '/d. at 918. 92Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 93 Id. 9AId. at 167. 95In re Gault, 387 U.S. 1, 33-34 (1967). 728 INDIANA LAW REVIEW [Vol. 8:716 parents. 96 Parents have a genuine and valid interest in the activi- ties of their children which is generally necessary to the perfor- mance of their parental obligations. However, there is increasing recognition that the privacy rights of minors are equivalent to those of adults in the related areas of contraception and abortion and deserve like constitutional protection. B. Contraception The Supreme Court has not yet recognized the constitutional right of minors to receive contraceptive or abortion treatment. This non-recognition is a product of the relatively recent devel- opment of such constitutional rights in adults. The right to con- traception was not affirmatively upheld for married couples until 1965 when the Court, in Griswold v. Connecticut,97 extended the right of privacy penumbrae of the Bill of Rights and the four- teenth amendment98 to protect the use of contraceptives in the marital relationship. 99 Seven years after Gristvold, the Court fur- ther extended this privacy right to unmarried adults in Eisenstadt v. Baird. wo The Court, per Justice Brennan, found that different treatment for married and unmarried individuals could not be justified constitutionally; the Massachusetts statute which pro- vided unequal treatment was therefore violative of the equal pro- tection clause of the fourteenth amendment. 101 The statute had made unlawful the delivery of any drug or article for the preven- tion of contraception except by a registered pharmacist to mar- ried people. The statute was defended as a legitimate effort under the state's police powers to protect health. The First Circuit had rejected this argument because it could find no difference be- tween the medical skills necessary to treat unmarried or married individuals, 102 and because the state had "made no attempt to dis- tinguish . . . between dangerous or possibly dangerous articles, and those which are medically harmless." 103 The First Circuit had also rejected the arguments that the statute was a valid at- tempt to protect morals104 and that it was intended to discourage 96Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 504 (1969) (students and their parents had agreed to the expressive conduct) . 97381 U.S. 479 (1965). 96Id. at 484. "Just four years prior to the Griswold decision, the Court had failed to find such a right. Poe v. Ullman, 367 U.S. 497 (1961). 1oo405 U.S. 438 (1972). 10 'Id. at 443. ,02Baird v. Eisenstadt, 429 F.2d 1398, 1401 (1st Cir. 1970). ""Id. 104 To say that contraceptives are immoral as such, and are to be 1975] MINORS AND CONTRACEPTIVES 729 fornication. 105 The Supreme Court affirmed the First Circuit's ruling against the anti-fornication 106 and health107 justifications for the statute but did not reach, as the First Circuit did, the question of whether the statute interfered with fundamental human rights, "because, whatever the rights of the individual to access to contraceptives may be, the right must be the same for the unmarried and the married alike." 108 Though the Eisenstadt case concerned the delivery of a con- traceptive device by a non-druggist to an unmarried adult woman, the Court's language could reasonably be taken to extend the privacy-based contraceptive right to minors. Justice Brennan did not discourage this inference when he stated: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 109 However, efforts to gain an extension of these rights to minors have met with mixed success. The Utah Supreme Court rejected an equal protection or privacy basis for such a right. 110 More recently, the United States District Court for the Southern District of New York determined that a statute prohibiting sale of nonprescription contraceptives to per- sons under sixteen raised "a not insubstantial question ... as to whether this provision unconstitutionally infringes the right to forbidden to unmarried persons who will nevertheless persist in hav- ing intercourse, means that such persons must risk for themselves an unwanted pregnancy, for the child, illegitimacy, and for society, a possible obligation of support. Such a view of morality is not only the very mirror image of sensible legislation ; we consider that it con- flicts with fundamental human rights. In the absence of a demon- strated harm, we hold it is beyond the competency of the state. Id. at 1402. 105 [I]f the legislature is truly concerned with deterring fornication, it may increase the statutory penalty to mark the measure of its con- cern. It may not do so, however, by making the penalty a personally, and socially, undesired pregnancy. Id. ,O6405 U.S. at 449-50. 107 Id. at 451. The Court noted that, although the appellant insisted that the unmarried have no right to engage in sexual intercourse and thus no health interest to be served in contraception, devices were available without controls so long as their purpose was the prevention of disease. "It is incon- ceivable that the need for health controls varies with the purpose for which the contraceptive is to be used when the physical act in all cases is one and the same." Id. at 451 n.8. ,08 /d. at 453. W9Id. (emphasis in original). noDoe v. Planned Parenthood Ass'n, 29 Utah 2d 356, 510 P.2d 75, cert, denied, 414 U.S. 805 (1973). 730 INDIANA LAW REVIEW [Vol. 8:716 privacy of [those] under the age of sixteen" 111 and therefore granted a motion to convene a three-judge district court on the ques- tion. 112 If the three-judge district court establishes that such a constitutional right does not exist for minors, the language of Eisen- stadt will clearly be applicable to minors as well as to adults. C. Abortion In 1973, the Supreme Court, in Roe v. WadeU3 and Doe v. Bolton" A further extended the fundamental privacy right to in- clude abortion and established that the decision to terminate preg- nancy should lie exclusively with the woman and her physician during the first trimester without state interference. 115 It has been argued that the privacy interests of a minor woman should also be compelling in the first trimester, and that the state should not place added restrictions upon minors seeking abortions, 116 but the Court expressly declined to rule on the constitutionality of state statutes requiring parental consent for abortions on un- married minors. 117 The Washington Supreme Court recently determined that an unmarried minor woman has the same right of privacy as does an adult woman in the abortion decision, and that a state statute which required parental consent for abortion upon a minor woman offended the equal protection clause of the fourteenth amendment.118 A three-judge district court has also found the requirement of parental consent unconstitutional. 119 Such state and district court action should encourage the removal of the statutory parental con- sent requirement such as the one found in Indiana. 120 More im- portantly, this increasing trend toward a recognition of constitu- tional rights in minors should result in a final determination by the Supreme Court that the Constitution protects the use of con- traceptives by minors. 11 'Population Services Int'l v. Wilson, 383 F. Supp. 543, 549 (S.D.N.Y. 1974). 1127d at 550. 113410 U.S. 113 (1973). 1,4410 U.S. 179 (1973). n5410 U.S. at 163. U6See, e.g., Note, The Minor's Right to Abortion and the Requirement of Parental Consent, 60 Va. L. Rev. 305 (1974). 117410 U.S. at 165 n.67. 118State v. Koome, 530 P.2d 260 (Wash. 1975). The court also suggested that "[t]he age of fertility provides a practical minimum age requirement for consent to abortion, reducing the need for a legal one." Id. at 267. 119Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla. 1973), appeal dismissed, 417 U.S. 279 (1974). 120Ind. Code § 35-1-58.5-2 (a) (2) (Ind. Ann. Stat. § 10-108, Burns Supp. 1974). 1975] MINORS AND CONTRACEPTIVES 731 VI. Conclusion The need for prompt action, as demonstrated by the incidence of teenage pregnancy, would suggest that a statute allowing minors to consent to contraceptive treatment, similar to the stat- ute allowing consent to treatment of venereal disease, is in order. It might be argued that such a move would be to condone pre- marital sexual intercourse, but it could more reasonably be viewed as an attempt to discourage premarital conception. The decision to become sexually active does not depend upon the availability of contraceptives—as is indicated by the teenage pregnancy sta- tistics. Perhaps more importantly, many sexually active young women do not use even nonprescription contraceptive methods, or do so only infrequently, 121 raising the need for accurate and widespread dissemination of information, supported actively by the state. In view of the state's interests in protecting the rights of minor individuals and in solving the problems resulting directly from teenage sexual activity, a statutory effort which would place the contraception decision in the physician and his patient, while eliminating extraordinary liabilities, is justified and highly desirable. Bruce A. Walker 121 See Zelnik & Kanter, Sexuality, Contraception and Pregnancy Among Young Unwed Females in the United States, in 1 United States Comm'n on Population Growth and the American Future, Research Reports 355, 366 (C. Westoff & R. Parke, Jr., eds. 1972).