States’ Rights or States’ Wrongs? The Constitutional Argument for Medically Accurate and Comprehensive Sex Education

Almost all states have some form of legislation governing sex education in public schools, but only 29 states and the District of Columbia mandate that sex education be taught, and only 17 of those 29 states require that the sex or HIV education provided be medically accurate. Furthermore, 29 states require that abstinence-only approaches to sex education are stressed, while only 20 states and the District of Columbia require sex education to include information about contraception. While this legislation is undoubtedly passed with the intent of protecting the morals of states’ younger citizens, this Note posits that permitting abstinence-only and medically inaccurate or incomplete sex education in public schools is harmful to the health and safety of those receiving this information. Regardless of the quality—or quantity–—of sex education provided, statistics show that, on average, individuals in the United States have sex for the first time at the age of 18. This Note not only argues for the necessity of comprehensive, medically accurate sex education, but also proposes such education falls within the penumbra of unenumerated fundamental rights under the Fifth and Fourteenth Amendments. This Note will frame this argument within Justice Kennedy’s Obergefell v. Hodges opinion by discussing what unenumerated right is being proposed; the history and tradition in this area; the concept of liberty; and the prior unenumerated rights granted by the Court that support the expansion into the area of sex-education legislation. Finally, this Note will discuss the feasibility of such an argument and potential next steps to ensure the provision of accurate and complete sex education.