THE TEXAS TRIBUNE – For almost a year, Texas teens have been shut out of a federal program that allows minors to access birth control without parental consent.
On Monday, the 5th U.S. Circuit Court of Appeals indicated they may uphold the court ruling that stymied the program. The three-judge panel did not rule from the bench, but seemed supportive of conservative attorney Jonathan Mitchell’s case, with one judge calling the contraception program a “destruction” of parental rights.
Mitchell, a former Texas solicitor general, filed the case on behalf of Alexander Deanda, an Amarillo-area father raising his daughters “in accordance with Christian teaching on matters of sexuality.”
The U.S. Department of Justice’s cornerstone argument is that Deanda has no legal right to bring this case because he cannot show that his daughters have ever even visited one of the clinics, let alone were prescribed birth control without his consent.
Less than 30 seconds after the DOJ began arguments Monday, Judge Catharina Haynes interrupted.
“If your kid knows you don't want them to go have sex when they're 15, they're certainly not going to tell you they want to go and get some medicine so that they don't end up pregnant,” Haynes said. “So how the heck is [Deanda] going to know that?”
Appeals courts have repeatedly ruled that minors have a right to confidential contraception under the Title X program, which Mitchell acknowledged Monday. But he asked the judges — two appointed by President George W. Bush and one appointed by President Donald Trump — to reject that precedent and instead find that Texas’ parental consent code should dictate how this federal program operates in the state.
“Texas has been the birthplace of a lot of bad sexual and reproductive health policy that other states have replicated,” said Stephanie LeBleu, program director with Every Body Texas, a nonprofit that administers the Title X grant in Texas. “If the 5th Circuit upholds this ruling, there’s a bigger question about what this means for access to birth control, full stop, and not just in Texas.”
Title X long under attack
In 1969, President Richard Nixon, a Republican, declared that “no American woman should be denied access to family planning assistance because of her economic condition.” The next year, he signed Title X into law, creating a nationwide system of clinics dedicated to providing contraception to anyone who needed it, regardless of age, income or immigration status.
Over the last 50 years, Republicans have tried to require Title X clinics get parental consent before they prescribe birth control to adolescents. But federal appeals courts have repeatedly rejected those claims, pointing to Congress’ original mandate that clinics are required only to “encourage family participation … to the extent practical.”
In Texas, that makes Title X clinics unique. In virtually every other setting, teens must have parental consent to get contraception. Even a teen who has had a baby must get a parent’s permission to get on birth control. (Texas teens on Medicaid don’t need a parent’s permission, but the program doesn’t guarantee confidentiality the way Title X does.)
Texas’ Title X clinics do encourage teens to involve their parents in decision-making, said LeBleu.
“But not every young person has that … trusted adult or a parent or legal guardian that they can go to and get consent to get the services that they need,” she said, pointing to young people in abusive or coercive situations as an example. “There are young people who have no other recourse except to be able to access these services confidentially.”
Texas has 156 Title X clinics, largely centered in urban areas. Nationally, the program has been flat-funded for years, making it difficult to expand its reach in Texas and across the country.
“If Title X funding had kept up with inflation, it would be funded at nearly triple the amount of money that it is right now,” said Robin Summers, vice president with the National Family Planning and Reproductive Health Association. “We are stuck with a Congress that refuses to increase the funding, and instead tries to treat Title X as a political football.”
The program has faced significant national political headwinds. In 2019, the Trump administration disqualified any Title X clinics that performed or provided information about abortions. The number of clinics dropped from nearly 4,000 to 2,700, according to the National Family Planning and Reproductive Health Association, and the number of patients dropped by half between 2019 and 2020.
The federal Office of Population Affairs estimates the Trump-era regulations led to more than 180,000 unintended pregnancies. The Biden administration lifted those regulations in October 2021 and the program is slowly rebuilding.
New legal front
This Texas lawsuit, originally filed in 2020, could potentially undermine a core component of the federal program.
Deanda claims that this program injured him and other parents by subverting their authority and “weakening their ability to raise their children in accordance with the teachings of the Christian faith,” the original filing said.
The lawsuit argued that the program guidance to “encourage family participation” in minors’ contraception decisions established a minimum level of parental involvement, and Texas’ state laws requiring parental consent should supersede.
Mitchell declined to comment on behalf of himself and Deanda.
But U.S. District Judge Matthew Kacsmaryk agreed with their arguments in a December 2022 ruling. Since Trump appointed him as the sole federal judge in Amarillo in 2019, Kacsmaryk has become a popular judge for conservative attorneys and the State of Texas. Before joining the bench, Kacsmaryk worked for First Liberty, a Plano religious liberty law firm, where he litigated against contraception and abortion access.
“Although other courts have held Title X ‘preempts’ state-imposed parental-notification and consent requirements, the Court finds those authorities unpersuasive,” Kacsmaryk wrote. He ruled that Title X clinics “must encourage (under federal law) family participation and obtain (under Texas law) parental consent.”
DOJ attorney Courtney Dixon told the 5th Circuit that this ruling is at odds with the “particular approach” Congress chose when laying out the Title X program.
“Congress considered adolescent services to be so important that it explicitly amended the statute to specify those services in the program,” she said, later adding, “Congress understood that even that goal of encouraging family participation may well have to give way to other competing considerations.”
On the three-judge panel was Judge Stuart Kyle Duncan, a conservative Trump appointee best known for arguing the Supreme Court case that allowed Hobby Lobby and other religious employers to not cover contraception as part of their health insurance plans.
Duncan equated Texas’ parental rights statute to a fence around a family’s home that’s “helping you be a parent,” he said.
“The federal government comes in, in this case, and says, ‘Well, we’ve taken the fence away. We preempted. No more fence for you. Good luck. Maybe your daughters will listen to you. I hope they do, but maybe they won’t,’” he said. “How can we say that [Deanda] is not injured by that?”
Up on appeal
The 5th Circuit has taken a wide view of standing in recent cases, including another controversial Kacsmaryk case involving the abortion-inducing drug mifepristone, where a panel of judges agreed that doctors who opposed abortion had standing to challenge the medication’s approval.
“We are clearly in a period where there's a conservative, judge-driven expansion of standing in a number of different ways,” said Liz Sepper, a law professor at the University of Texas at Austin. “This could be a bridge too far, though.”
Sepper said this ruling is in line with other cases conservative lawyers have brought to Kacsmaryk about sexual and reproductive health.
“It seems entirely outcome driven,” she said. “I think it similarly showcases a willingness to bulldoze over lots of precedent and lots of procedural arguments.”
While this case has moved through the courts, Title X clinics in Texas began requiring parental permission before they provided birth control to minors. Teens already receiving birth control through a Title X clinic lost access unless they could go back and get parental permission, LeBleu said.
“It was devastating,” LeBleu said. “There was a lot of confusion from providers about what’s still available, what documentation was required, what new policies they had to draft up, which takes energy and effort away from caring for clients.”
It’s unclear when the 5th Circuit will rule on this case. If the appeals court overturns Kacsmaryk’s ruling, Title X clinics in Texas are prepared to “flip the switch” and resume offering confidential contraception to teens, LeBleu said.
But if it is upheld, this case will serve as a “harbinger for things to come,” Summers said.
“They're following a playbook here,” she said. “Once they have successful litigation in one place, then they start replicating it across the country.”
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This article originally appeared in The Texas Tribune.