5th Circuit upholds TX law requiring minors to obtain parental consent for contraception

AUSTIN, Texas — The 5th Circuit Court of Appeals upheld a Texas law requiring parental consent to obtain contraception for minors.

The decision from a three-judge panel of the federal appeals court in New Orleans largely affirms a 2022 ruling from U.S. District Judge Matthew Kacsmaryk in Amarillo, that ended one of the only avenues for Texas teens to confidentially obtain birth control, through federally funded family planning clinics. Since 1970, the federal Title X program has provided free contraception to anyone regardless of age, income, or immigration status.

The 5th Circuit panel, which heard the case last year, found parental consent required for minors’ medical treatment under the Texas Family Code does not conflict with federal law that allows U.S. teens to obtain contraception confidentially at federally funded family planning clinics.

“Moreover, Title X’s goal (encouraging family participation in teens’ receiving family planning services) is not undermined by Texas’s goal (empowering parents to consent to their teen’s receiving contraceptives),” wrote Judge Stuart Kyle Duncan. “To the contrary, the two laws reinforce each other.”

The decision, from Duncan and Circuit Judges Priscilla Richman and Catharina Haynes, mostly affirms the findings by Kacsmaryk, who ruled that the Title X program violates parents’ rights and state and federal law. Texas law requires minors to get parental permission before obtaining medical treatment, but Title X clinics were previously exempt from that law.

The case was filed by Jonathan Mitchell, a former Texas solicitor general, the legal architect behind the 2021 Texas law that banned abortion after the sixth week of pregnancy.

Mitchell represented Alexander Deanda, an Amarillo father who said he raised his three minor daughters in accordance with his Christian beliefs to abstain from premarital sex. Although Deanda didn’t show that his daughters obtained birth control without his consent, he still argued that the program violated his rights as a parent in Texas.

Under Title X, clinics are to “encourage family participationto the extent practical.” Federal courts have repeatedly held that clinics cannot require parental consent.

U.S. Department of Justice attorneys had argued in 2022 and again last year in New Orleans that Deanda had no standing to bring the case forward. The three-judge panel ruled Deanda did have standing because the program prevents him from exercising his parental rights to consent to his child’s medical care.

The three-judge panel did reverse part of Kacsmaryk’s ruling. The district judge had struck down a regulation that barred Title X-funded groups from notifying parents or obtaining consent. The 5th Circuit said it was too soon to rule on the new regulation.

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Every Body Texas is the nonprofit that administers the Title X grant in Texas. Since 2022, the group has advised its 156 clinics in Texas to require parental consent for minors “out of an abundance of caution” as it awaits further guidance from the federal government.

The Texas Title X administrator filed an amicus brief in the case before the 5th Circuit. On Wednesday, the group issued a statement, pointing out that the mixed ruling from the 5th Circuit was “not a clear statement on whether minors in Texas can legally access confidential contraceptive care without parental consent in Title X clinics” or whether the clinics must continue to comply with Texas state parental consent law.

For now, Every Body Texas believes its clinics should continue operating as they had after Kascmaryk’s ruling, by requiring parental consent for minors seeking birth control, as the group consults with the federal government as to how to proceed.

“While we agree with the court’s decision to keep in place the 2021 Title X rule that prohibits clinics from requiring parental consent, we remain concerned that the ambiguity of the ruling continues to impose barriers for young people in Texas who are trying to access birth control,” said Stephanie LeBleu, Title X Project Director.

“Minors have been unable to access confidential contraceptive care in our network of Title X clinics for more than a year,” said LeBleu. “Title X encourages young people to involve a parent or guardian in their healthcare decision-making. However, not all teens have a trusted adult with whom they can have those important conversations, and they turn to their healthcare provider for confidential care.”

and on Wednesday said but had little comment about the ruling late Tuesday.

“We are currently working to understand the full implications of the opinion from the 5th circuit today,” Mimi Garcia, spokesperson for Every Body Texas, said in a statement. “We continue to operate under previous guidance at this time.”

DOJ attorneys also declined to comment on the ruling or appeal plans.

The decision could have ripple effects across the country if other states adopt similar parental consent policies, said Lucie Arvallo, executive director of Jane’s Due Process, an organization that helps young people access abortions and contraceptives.

“We know from over two decades of working with teens that young people will frequently include parents in their reproductive health care decisions, but for some, parental involvement and legal decisions like this one are insurmountable barriers,” Arvallo said. “Teens should be able to access birth control, no matter their circumstances or where they live.”

Arvallo added that abortion rights groups will likely be hesitant to appeal the ruling to the U.S. Supreme Court, which in 2022 revoked a constitutional right to abortion. She said a U.S. Supreme Court ruling that affirms the 5th Circuit’s decision could decimate teen access to birth control nationwide.

Reporter Neelam Bohra contributed to this story.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/03/12/texas-parental-consent-birth-control-fifth-circuit-title-x/.