The equal protection critique of abstinence-only curricula is strengthened and rendered more amenable to judicial resolution by the fact that sex education classes are designed not only to expose students to ideas, but also to shape student behavior,” Pillard, a Georgetown University Law professor, wrote in a 2007 article titled “Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access and Work Family Policy” in a faculty publication.
“Obligatory education permeated with discriminatory content alone raises serious constitutional concerns,” the article continued. “But the conduct shaping purpose of sex education curricula makes them vulnerable to equal protection challenge even if communicating retrogressive sex roles in traditional academic classes might not be.”
Pillard’s 2007 assessment reflects both a radical ideology and disregard of basic factual information, said Valerie Huber, president of the National Abstinence Education Association, which is urging the Senate to reject the nomination.
“There are politically liberal nominees, but this is beyond that,” Huber told CNSNews.com. “She is so extreme that when I was reading this I had to remind myself this was a real person that actually believes the words I’m reading. She believes abstinence education should be a criminal activity.”
Pillard is one of three nominations President Barack Obama announced in a Rose Garden speech on June 4.
“Nina Pillard’s career has been defined by an unshakeable commitment to the public good,” Obama said. “She twice served in the Department of Justice and was an attorney for the NAACP Legal Defense and Education Fund. Her landmark successes before the Supreme Court include defending the constitutionality of the Family and Medical Leave Act and opening the doors of the Virginia Military Institute to female students, and today, Nina is a professor at Georgetown and, if confirmed, would continue the D.C. Circuit’s strong tradition of distinguished scholars going on to serve as judges -- from Antonin Scalia to Ruth Bader Ginsburg.”
The fact that the D.C. Circuit has traditionally been an exalted post for judges is also for concern, Huber told CNSNews.com.
“Why would the president pick that circuit? Is she being considered as a Supreme Court nominee?” Huber wondered.
The Pillard article maintained that abstinence-only education promoted a male-dominated view.
“Retrogressive gender ideology, prescribing chastity and maternity for women while assuming lustfulness and autonomy for men, is at the heart of today's abstinence-only education movement. In that regard, the abstinence-only approach conflicts with the substantive norms of both equal protection and reproductive justice,” the article said.
“In sum, overt teachings and the pervasive subtext of abstinence-only curricula reflect the expectation that women should and will become mothers, rely on their husbands or financial support, care about their relationships with males more than the males do, have a greater stake in and identification with chastity than men, and do not value the importance of sexual release as highly as men do,” the piece continued.
The article further said, “By promulgating sexual double standards, those curricula foster a world view and behavior at odds with our equal protection law. Their prescriptions for women and men resonate vividly with the traditional sex roles that were the targets of so many of the early sex equality cases. If it is contrary to equal protection to make even formally neutral governmental decisions based on sex stereotypes, it would seem, a fortiori, unconstitutional to teach those same views in public schools.”
But abstinence education has no gender bias, Huber said.
“We encourage sexual restrain among young males and young females,” Huber said. She added that abstinence education began during World War I and was predicated on “eliminating a double standard for males and females” with regard to sexual behavior.
“The concerns are two-fold. This shows she is not very careful in making legal recommendations,” Huber said. “It also shows she clearly has an ideological bent that trumps curious judicial review. Both are reasons she should not be confirmed.”
The Pillard article heralded abortion rights as key to gender equality, but said the matter could not end there.
She wrote, “We must eschew that shell game because the truth is that reproductive rights are important both for the reasons that the Constitution recognizes liberty rights to privacy and bodily integrity and for the reasons that it recognizes the right to sex equality.”
“Bringing into the picture issues beyond abortion helps to show the close and mutually reinforcing relationship between sex equality and reproductive rights,” the article said.
“In fuller context, we see how reproductive rights are a hinge pin between liberty and equality: Women need practical access to a range of reproductive choices to enjoy sex equality, yet they need equality to make reproductive decisions freely and in ways that are responsible to themselves, those they love, and the broader society,” it added.
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