[Congressional Record Volume 140, Number 9 (Friday, February 4, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 4, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                           Amendment No. 1393

  Mr. KENNEDY. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy], for himself 
     and Mr. Jeffords, proposes an amendment numbered 1393.,

  The amendment is as follows:

       At an appropriate place in the bill, insert the following:
       The Department of Health and Human Services and the 
     Department of Education shall ensure that all federally 
     funded programs which provide for the distribution of 
     contraceptive devices to unemancipated minors develop 
     procedures to encourage, to the extent practical, family 
     participation in such programs.

  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I will not take a great deal of time. I 
offer that amendment on behalf of myself and the Senator from Vermont, 
Senator Jeffords.
  This language here is, I think, the result of prior debates, 
discussions, votes, and also represents the existing law which, to the 
best of our knowledge, to the best of our knowledge on our committee, 
has been functioning and working effectively.
  We did not have it brought to our attention--and I am sure it would 
have been by any number of our colleagues--that the practical results 
of this kind of language is not effective in meeting a complex, 
difficult, and challenging issue.
  I hope we will have the support of the membership on that particular 
language.
  I reserve the remainder of my time.
  Mr. PELL. I rise in opposition to the amendment offered by the 
Senator from North Carolina which would prohibit the use of Department 
of Education or Department of Health and Human Services funds for the 
distribution or provision of contraceptive devices to adolescents 
without the prior written consent of their parent.
  First, this amendment is overbroad. It seeks to limit the use of 
funds by the Department of Health and Human Services as well as the 
Department of Education. I do not think this is the forum in which to 
debate or limit the use of DHHS funds. This is a bill that is devoted 
to the President's education Goals 2000 Program, and I think we should 
try to stick to that.
  As it relates to this bill and education programs in general, then, 
this amendment is a clear attempt to undermine the role and 
effectiveness of the school health clinic in a critically important 
area: reproductive counseling and services.
  In my view, school-based clinics deal effectively not only with such 
issues as nutrition and physical fitness, but also with the prevention 
of sexually transmitted diseases and unintended pregnancies. Many 
clinics provide needed health services as well as counseling and 
referral. These clinics, which are often on-site, give kids a safe 
place to go for health care and counseling, and allow qualified 
professionals to intervene much earlier in a crisis than they might 
ordinarily be able to do.
  It is not my intention to speak either in support of or in opposition 
to the distribution of condoms or other contraceptive devices in a 
school setting. Rather, it is my view that such sensitive decisions, 
including the particular health services that a school-based clinic may 
offer, should be a local decision, and be based on community needs and 
values. This amendment would effectively prohibit local communities, 
through their school health clinics, from addressing the health needs 
of a particularly vulnerable and hard-to-reach population--adolescents. 
I think we should do all we can to foster clinics which have the 
support of the local community and which promise important health 
benefits.
  I urge my colleagues to oppose this amendment, and to support instead 
the amendment which will be offered by the chairman of the full 
committee, Senator Kennedy, which will ensure the involvement of local 
communities and parents in deciding which services such clinics will 
offer.
  The PRESIDING OFFICER. Who yields time? The Senator from North 
Carolina is recognized.
  Mr. HELMS. Mr. President, I want to go back to the New York court 
opinion from the New York appellate division which reversed the condom 
program in New York City.
  This program was instituted, as I understand it--and I was just 
speaking with the distinguished Senator from New York [Mr. D'Amato] 
about it--in the New York City schools by the former chancellor of the 
schools who was known as Condom Joe Fernandez. It was this particular 
condom policy that helped lead to Mr. Fernandez's dismissal.
  But anyhow, three out of the five judges on the New York court joined 
in the decree--and I think I need to read it, or at least a part of it, 
and then I am going to ask the Senator from New York if he wants to 
elaborate a bit because the decision is from his State and his court.
  The holding from the court overturning the New York City Schools' 
condom policy decreed:

       The petitioner parents are being compelled by State 
     authority to send their children into an environment where 
     they will be permitted, even encouraged, to obtain a 
     contraceptive device, which the parents disfavor as a matter 
     of private belief. Because the Constitution gives the parents 
     the right to regulate their children's sexual behavior as 
     best they can, not only must a compelling State interest be 
     found supporting the need for the policy at issue, but that 
     policy must be essential to serving that interest as well. 
     We do not find that the policy is essential. No matter how 
     laudable its purpose, by excluding parental involvement, 
     the condom availability component of the program 
     impermissibly trespasses on the petitioners' parental 
     rights by substituting the [school authorities] in loco 
     parentis, without a compelling necessity therefore* * *.
       Through its public schools the City of New York has made a 
     judgment that minors should have unrestricted access to 
     contraceptives, a decision which is clearly within the 
     purview of the petitioners' constitutionally protected right 
     to rear their children, and then has forced that judgment on 
     them. . . .
       We conclude that the condom availability component of the 
     [schools'] program violates the petitioner [parents'] rights 
     to direct the upbringing of their children.

  I am going to leave it to Senator D'Amato to expound on that.
  I also happen to have here a very interesting and pertinent article 
published in the Washington Times on January 28. The headline is: ``How 
safe are they? Critics are now asking.'' The subject, of course, is 
condoms.
  Now the young people who are being given these condoms without their 
parents knowing anything about it assume that since the Government is 
giving them the condoms, everything must be hunky-dory and they are 
safe. And because it is politically improper--politically incorrect--to 
talk about values and morality, and so forth, they assume, of course, 
that it is the thing to do because they see it on television all the 
time and they read about it and they say, ``Am I missing out? Why not 
me? Why shouldn't I do it?''
  But nobody in the school says, ``Look, let us talk about values, the 
risks to your future, the possible emotional hurt'' or any of that. 
That is politically incorrect. The officials will not talk about such 
values in the schools. But they will say, ``You cannot read the Bible. 
You cannot pray. But here, have a condom.''
  That is the point of this amendment. I do not care what the Senator 
from Massachusetts says. He said something about 26 States approving 
the distribution of condoms to minors without the consent of their 
parents. Well, fine, but let those states do it without Federal funds. 
If those schools want to go to their own legislatures to get money for 
such activities, I bet 25 of the State legislatures will say, ``No way, 
Jose.''
  You see, the social engineers slide these things through and hope no 
one notices. Well, the 26 States have no right to do things with 
Federal money that the Congress says is improper, and I believe that 
any State court, certainly in North Carolina, would say exactly what 
the New York court said--that such programs violate parents' rights. I 
believe that because I know exactly--I think I do--how the majority of 
people in North Carolina feel.
  Mr. President, I think I am going to stop shortly because I want to 
hear Senator D'Amato, but I do ask unanimous consent that the 
previously referred to article of January 28, 194, in the Washington 
Times, ``How safe are they? Critics are now asking,'' be printed in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Jan. 28, 1994]

               How Safe Are They? Critics Are Now Asking

                            (By Joyce Price)

       If current government policy is any indication, condoms 
     must have become a lot safer in the past five years.
       In February 1989 a U.S. Public Health Service task force 
     issued a warning about the risk of condom failure.
       The task force, which included representatives of the 
     federal Centers for Disease Control and Prevention, the Food 
     and Drug Administration, and the National Institutes of 
     Health, warned that even with a condom any type of 
     intercourse with a person known to be infected with the AIDS 
     virus is so hazardous that ``alternative methods of 
     expressing physical intimacy'' should be considered, 
     according to a Los Angeles Times article the day after the 
     task force issued its report.
       Today, federal health officials say condoms are ``highly 
     effective'' in preventing the transmission of the human 
     immunodeficiency virus, which causes AIDS, when 
     used ``consistently and correctly.''
       The government has launched an $800,000 condom advertising 
     campaign on television and radio. Health officials describe 
     the campaign as an HIV ``prevention marketing initiative'' 
     aimed at young people.
       The public service announcements tell audiences latex 
     condoms will protect them from HIV infection. Some of them 
     make this statement without adding the caveat about the need 
     for consistent and correct usage.
       Critics of the ad campaign, unveiled this month by Health 
     and Human Services Secretary Donna Shalala, AIDS czar 
     Kristine M. Gebbie, and CDC officials, say it not only flies 
     in the face of family values, but ignores a lot of solid 
     scientific research on condom failure rates.
       ``Condoms don't prevent HIV transmission. * * * They just 
     reduce risk,'' said W. Shepherd Smith Jr., president of 
     Americans for a Sound AIDS/HIV Policy, a group that has kept 
     track of much of the research on condoms.
       ``It's wrong for the government to overpromote something 
     that's not nearly as safe as they claim when we're talking 
     about a fatal disease,'' he said.
       His protests are in line with the observations of Ronald F. 
     Carey and other researchers at the Food and Drug 
     Administration in a report published in the journal Sexually 
     Transmitted Diseases in July 1992.
       The FDA researchers found that ``leakage of HIV-sized 
     particles through latex condoms was detectable for as many as 
     29 of the 89 condoms tested.'' They concluded that condom use 
     ``substantially reduces but does not eliminate the risk of 
     HIV transmission.''
       In launching the ad campaign, Dr. David Satcher, director 
     of the CDC, cited a European study presented last year at the 
     International AIDS Conference in Berlin that found latex 
     condoms had a ``99 percent plus'' effectiveness rate in 
     preventing HIV transmission ``when used consistently and 
     correctly.''
       People who call the CDC's AIDS hot line (800/342-AIDS) are 
     told about two recent European studies--a French-based study 
     that recruited couples from nine countries and an Italian 
     study--that found a 0 percent and 1.1 percent failure rate, 
     respectively, for latex condoms when used consistently.
       But Tom Smith, executive director of the Medical Institute 
     for Sexual Health in Austin, Texas, said he wonders why 
     federal health officials haven't mentioned a late-1980s study 
     by University of Miami researchers ``which found a 17 percent 
     condom failure rate over an 18-month period.''
       And he's concerned that no one at the Department of Health 
     and Human Services is discussing a ``meta-analysis'' of 
     condom effectiveness in preventing heterosexual transmission 
     of HIV that was published last year by Susan Weller of the 
     University of Texas Medical Branch. After reviewing 11 
     published studies of condom effectiveness, ``she suggested 
     there was a 31 percent condom failure rate,'' Mr. Smith said 
     in a telephone interview.
       ``Condoms will not eliminate risk of sexual transmission, 
     and, in fact, may only lower risk somewhat,'' Miss Weller 
     concluded in her report in the British journal Social Science 
     Medicine.
       C.M. Roland, the editor of Rubber Chemistry and Technology, 
     has strong doubts about the ability of latex to prevent HIV 
     transmission. He has written that ``the rubber comprising 
     latex condoms has intrinsic voids about 5 microns [0.0002 
     inch] in size. Since this is roughly 10 times small than 
     sperm, the latter are effectively blocked in ideal 
     circumstances. * * * Contrarily, the AIDS virus is only 0.1 
     microns [0.000004 inch] in size. Since this is a factor of 50 
     smaller than the voids inherent in rubber, the virus can 
     readily pass through the condom should it find such a 
     passage.
       As for the European study that found that no HIV 
     transmission by infected partners who used condoms, Tom Smith 
     noted that the researchers could only get half of the 245 
     couples who participated to use condoms faithfully.
       ``These people should have been highly motivated [to reduce 
     sexual risks] because they knew their partners were infected 
     with HIV,'' he said. ``So why couldn't they get them to use 
     condoms if they are so wonderful. And if you can't get highly 
     motivated people to use them, how are you suppose to get 
     other people to use them?''
       W. Shepherd Smith Jr. pointed out that in the Italian 
     study, which found a 1.1 percent failure rate among those who 
     always used condoms, 22 women where on the pill.
       ``They didn't use condoms, and they didn't get infected'' 
     by their infected partners, he said. ``Does this mean the 
     pill is as effective as a condom'' in preventing HIV 
     transmission?
       Even groups that believe the condom ad campaign is long 
     overdue say it's missing crucial information needed to 
     protect people against HIV infection.
       ``What's the deal with dancing condom without water-based 
     lubricant--essential information--a million-dollar campaign 
     that doesn't have essential information?'' Wayne Turner of 
     ACT-UP D.C. asked Miss Shalala recently after interrupting a 
     speech she was delivering to members of the National Abortion 
     Rights Action League.
       In one ad, a packaged condom leaps from a dresser drawer, 
     scurries across a bedroom floor and wriggles under the covers 
     with an amorous couple.
       ACT-UP says the ads should make it clear that condoms must 
     be used only with water-based lubricants because oil-based 
     lubricants cause latex condoms to deteriorate.
       The protest by Mr. Turner was one of two unwelcome 
     surprises for Miss Shalala after she introduced the condom 
     ads. The other was a disclosure that Anthony Kiedis, lead 
     singer of the funk-rock group Red Hot Chili Peppers, who was 
     used in one of the radio ads, is a convicted sex offender.
       The Kiedis ad, titled ``Naked,'' was immediately pulled 
     from the campaign. Federal health officials said the ad was 
     withdrawn before it aired. But officials of Americans for a 
     Sound AIDS/HIV Policy said they've spoken to people who heard 
     the ad on the radio.
       Sources say Miss Shalala was the driving force behind the 
     government's first condom advertising campaign.
       ``Clearly, she was the one behind the current initiative,'' 
     said a source with ties to the CDC.
       Shalala spokesman Victor Zonana said: ``She was the force 
     responsible for the message that the best way to prevent the 
     sexual spread of HIV is to refrain from sex . . . but if you 
     have sex, use a latex condom consistently and correctly.''
       But critics say abstinence messages decidedly take a back 
     seat to condom promotion in the aid campaign.
       And two of the three television public service 
     announcements on abstinence in the campaign are not new. The 
     male and female versions of the ad, titled ``We'll Wait,'' 
     are recycled from the CDC's ``America Responds to AIDS'' 
     campaign during the Reagan and Bush administrations.
       And some critics say offering condom and abstinence 
     messages sends mixed signals. ``It's like handing a drug 
     addict a needle and asking him not to use drugs,'' said Tom 
     Wykes, executive director of the Catholic Campaign.

                           are condoms safe?

       Some studies the Health and Human Services Department 
     didn't mention as it unveiled its new condom ad campaign:
       Study led by Dr. Margaret Fishl, an AIDS researcher at the 
     University of Miami, found a 17 percent condom failure rate 
     in preventing transmission of the human immunodeficency virus 
     over an 18-month period.
       Researchers at the University of Amsterdam found condoms 
     had a 27 percent combined slippage and breakage rate for 
     homosexual males practicing anal sex. Study published in 
     British Medical Journal on July 11, 1987.
       In a study of 50 prostitutes, researchers at St. Mary's 
     Hospital in London found that those engaged in anal sex said 
     condoms split more than 50 percent of the time. Released Dec. 
     21, 1985.
       Consumer Reports, in its March 1989 issue examining 40 
     different latex condom models, found 32 had maximum failure 
     rates of 1.5 percent; six had maximum failure rates of 4 
     percent; and two had failure rates of up to 10 percent.
       A study using two brands of condoms, published in Family 
     Planning Perspectives in February 1992, found that nearly 15 
     percent either broke or slipped off the penis during 
     intercourse.
       In a 1993 review of 11 published studies on condom 
     effectiveness in reducing heterosexually transmitted HIV, 
     Susan C. Weller of the University of Texas Medical Branch in 
     Galveston found that condoms reduce HIV infection risk by 
     approximately 69 percent.
       In a study published in the July/August 1992 issue of the 
     journal Sexually Transmitted Diseases, Ronald F. Carey of the 
     FDA found that ``leakage of HIV-sized particles through latex 
     condoms was detectable for as many as 29 of the 89 condoms 
     used'' in his research.
  Mr. HELMS. Mr. President, before I finish, I feel the Record should 
reflect at least a few of the statistics concerning the rate of failure 
of condoms as mentioned in the Washington Times article, because it is 
almost criminal that our children are being given condoms without being 
told about these statistics.
  The article notes that a study led by an AIDS researcher at the 
University of Miami, Dr. Margaret Fishl, found a 17-percent condom 
failure rate in preventing HIV transmission over the 18-month period of 
her study.
  Researchers at the University of Amsterdam in 1987 found an even 
higher condom failure rate of 27 percent for homosexual males.
  Another study, in 1992, in ``Family Planning Perspectives''--a 
publication put out by Planned Parenthood, by the way--found that the 
overall failure rate of condoms in the United States is 15 percent.
  And finally, a 1993 review by the University of Texas of 11 different 
studies published on the effectiveness of condoms in reducing HIV 
infection among heterosexuals found that condoms reduced the risks of 
HIV infection by just 69 percent--hardly the 100-percent iron-clad 
guarantee our kids are led to believe when the schools hand the condoms 
out.
  Dr. Theresa Crenshaw, a past president of the American Association of 
Sex Education Counselors and Therapists summed the situation up way 
back in 1987 when she testified before a congressional subcommittee in 
the House and said: ``Saying that use of condoms is safe sex is in fact 
playing Russian Roulette. A lot of people will die in this dangerous 
game.''
  Mr. President, it is our school children who are going to die in this 
dangerous game unless the Senate votes to put a stop to this nonsense 
of handing out condoms to children in the schools without parental 
consent.
  Mr. President, I am now going to yield to my friend from New York, 
who will discuss the appellant court opinion on this issue from his 
State. I appreciate his bringing that information to the attention of 
the Senate.
  I yield the remainder of my time to the Senator from New York.
  The PRESIDING OFFICER. The Senator from New York has 21 minutes.
  Mr. D'AMATO. Mr. President, let me commend the Senator for bringing 
forth this amendment because what we are talking about is a basic, 
constitutional right as it relates to parents and parental 
responsibility, and whether or not a government, even with a well-
intended purpose, has the right to usurp that.
  I do not believe that anyone can say that the Second Department 
Appellate Division, which made the decision affecting that program of 
condom distribution in the public schools in New York, is not a court 
of learned, distinguished jurists. Some might say liberal, or even 
ultraliberal, but let me say regardless of political philosophy, as it 
relates to interpreting the law and the Constitution, they are second 
to none.
  I think it is interesting to note that the amicus brief filed by the 
parents really made the point that no matter how laudable the intent or 
the purpose, the parents should not be taken out of the process, 
because otherwise we could do that with any number of things.
  What we are really saying here is, we should not be imposing programs 
with Federal dollars whereby the rights and obligations and duties of 
parents will be abridged, the duties and responsibilities will be cut 
off, will be terminated, they will have no say; they will be left out. 
I do not think that is the business of Government, to become intrusive 
in family life and family matters, other than seeing to it youngsters 
have education, public education, sound public education.
  Let me quote from the New York court's opinion, appellate division 
1993. It says:

       The petitioner parents are being compelled by State 
     authority to send their children into an environment where 
     they will be permitted, even encouraged, to obtain a 
     contraceptive device which the parents disfavor as a right of 
     private belief. Because the Constitution gives the parents 
     the right to regulate their children's sexual behavior as 
     best they can, not only must a compelling State interest be 
     found supporting the need for the policy at issue but that 
     policy----

  And this is important. This is the court speaking.

     must be essential to serving that interest as well.

  The court went on to say:

       We do not find that the policy is essential.

  Of course, you cannot say it is essential. So if it is a matter of 
preserving the child's life, we have had the decisions where the court 
said you cannot withhold a lifesaving technique to this child simply 
because you may not believe in a blood transfusion. And we have had 
that because, again, it has to be essential.
  And so here we are. This is very clear. It is not a matter of whether 
or not we are for or against this particular program. That is not my 
point. But I do argue and say the parents have a right to make that 
decision. And the Government should not be intruding, into that right 
and responsibility unless, again, the court says not only is there a 
compelling interest, but it is essential to the life of that child.
  So where there may be a laudable goal, that goal has to be more than 
laudable. It has to be more than compelling. It has to be essential and 
has to go absolutely to that life.
  I do not know how many of us are going to have an opportunity to 
really understand and study the nuances of the Senator's amendment, but 
what he is really saying is basically there are those decisions that 
should be rendered by Caesar, by Government, and those that should 
never be taken away that lie properly within the responsibility and 
realm of the family. Let us see that the two do not cross.
  May I inquire as to how much time we have remaining?
  The PRESIDING OFFICER (Mrs. Feinstein). The Senator has 16 minutes 
and 45 seconds.
  Mr. D'AMATO. I thank the Chair.

                          ____________________