Yes, Dorothy, you really can tell your doctor about sex in Kansas. A while ago, I wrote about the Kansas Attorney General’s interpretation of a law prohibiting sex with minors under the age of 16 as requiring doctors to report any sexual activity by people under 16 to the state authorities (here and here).
Recently, a federal district court judge concluded in Aid for Women v. Foulston:
An individual’s right to informational privacy may be implicated when the government compels disclosure of that individual’s personal sexual or health-related information to the government and/or to other third parties. Compelled disclosure may violate an individual’s right to informational privacy unless the disclosure serves a compelling state interest in the least intrusive manner. To determine whether information is of such a personal nature that it demands constitutional protection, the court considers: “1) if the party asserting the right has a legitimate expectation of privacy; 2) if disclosure serves a compelling state interest; and 3) if disclosure can be made in the least intrusive manner.” A “legitimate expectation of privacy,” is based “at least in part, upon the
intimate or otherwise personal nature of the material.” . . .
The Supreme Court and this Circuit have extended to minors the constitutional right to privacy, including the right of informational privacy. However, in a variety of contexts the power of the state to control or regulate the conduct of children has been found to reach beyond the scope of its power over adults. For the narrow issue of whether mandatory reporting of consensual sexual activity of minors violates a minor’s informational privacy rights, the court begins with a three-prong analysis: 1) is there is a legitimate expectation of privacy; 2) does disclosure serve a compelling state interest; and 3) can disclosure be made in the least intrusive manner? The court finds the Kansas reporting statute encompasses these elements. First, the statute recognizes an expectation of privacy in conduct when there is no reason to suspect injury as a result of abuse. Second, the state clearly has a compelling interest in protecting children from abuse, but, as the statute indicates, this interest is limited to circumstances when there is a reason to suspect injury. Thus, a minor’s privacy ends where the state’s interest in protecting the minor begins. Finally, the statute recognizes that privacy should be breached only when injury to the child is reasonably suspected. By its very terms, the statute recognizes an element of privacy in mandatory reporting of unlawful sexual activity of a minor.
As the court concluded above, the statute itself wasn’t a problem. The Kansas AG’s interpretation of the law, however, went too far, and the court enjoined it. According to the court: