I have experienced this debate from both sides now — as a teenager and as a mother of teenagers. And while I agree that parental involvement is preferable and think it’s understandable that parents want a say in their children’s medical decisions, I also know those discussions are not always going to happen. In many families, the consequences could be far worse than invasions of privacy and uncomfortable conversations.
Congress understood this, too, when it provided federal funding for family planning clinics and, in 1978, worried about the explosion in teen pregnancy, explicitly amended the Title X law to include contraceptive coverage for adolescents. In 1981, it further changed the law to “encourage family participation,” to “the extent practical.”
The Reagan administration tried to seize on this language a few years later to require that parents be notified when their children sought contraception from federally funded clinics. This so-called squeal rule was struck down by two federal appeals courts. In addition, every appeals court to address the conflict between state parental consent rules and Title X has found that the state rules conflict with Title X and can’t be enforced.
In short, for four decades now, the rules have been clear: Teenagers can obtain contraception in confidence. Or so we thought. Texas law gives parents the right to consent before their children get contraceptives. Alexander Deanda, who said he was raising his three daughters to conform to his Christian beliefs that they should abstain from premarital sex, filed suit to challenge the administration of Title X as a violation of Texas law and of his constitutional right to direct his children’s upbringing. U.S. District Judge Matthew Kacsmaryk, a Trump nominee famous for his ruling against the abortion drug mifepristone, agreed.
Last week, the 5th Circuit sided with Deanda. The all-Republican panel — two George W. Bush nominees and Trump nominee Stuart Kyle Duncan — brushed aside the Biden administration’s argument that Deanda lacked standing because he hadn’t shown any real risk of being harmed by the confidentiality policy. There was no assertion that his daughters had obtained contraceptives from a Title X clinic or were inclined to do so.
That didn’t concern the 5th Circuit, in an opinion written by Duncan. (You may recall him from being shouted down by Stanford Law School students unhappy with his position on LGBTQ+ rights.) “The Secretary’s policy is to spend millions to get contraceptives to minors without telling their parents,” Duncan wrote. “It should not come as a shock that there could be a correspondingly large number of parents who can challenge it in court.”
Duncan said the federal law didn’t interfere with — and therefore didn’t preempt — the Texas rule. Really? One — the federal law, the one that’s supposed to take precedence — says that family participation should be “encourage[d],” so far as “practical.” The other — the Texas law, which is supposed to give way under the supremacy clause — mandates parental consent.
Duncan looked at the two laws and said he discerned “no conflict between Title X’s objectives and Texas’s.” Both want to encourage family participation — Texas, he said, just “establishes a specific means of achieving that goal.” So much for paying attention to the statutory text.
Still, the 5th Circuit didn’t go as far as Kacsmaryk, something that’s becoming a trend with this extremist judge. Having concluded that the federal law didn’t preempt the Texas consent requirement, the appeals court didn’t answer the broader constitutional question of whether Title X violated Deanda’s rights as a parent to control his children’s upbringing.
One additional wrinkle: In 2021, after Deanda’s lawsuit was filed, the Biden administration issued a regulation providing that recipients of Title X funds can’t require parental consent or notify parents that minors have requested contraceptive services. Kacsmaryk declared the new rule unlawful. But the appeals court said that went too far because Deanda hadn’t properly challenged it.
In other words, watch this space. But don’t sleep easy. As we’ve seen with interference with in vitro fertilization in Alabama, and as we see with contraceptives in Texas, outlawing abortion is just the start.
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