A federal appeals court said Tuesday that teenagers in Texas need parental consent to receive prescription birth control from family planning clinics that use federal (not state) funding. It’s poised to end one of the only ways Texas minors could get birth control confidentially.
Texas state law says that minors almost always need parental consent in order to be prescribed contraceptives like the pill, ring, or IUD. The only exception is federally funded Title X family planning clinics, which, according to federal guidance, aren’t allowed to require notifying a teen’s parents, let alone seeking their consent. A lower-court ruling from 2022 said the federal confidentiality policy violated Texas Family Code, and on Tuesday, a three-judge panel of the Fifth Circuit Court of Appeals unanimously agreed. The ruling only applies to Texas for now, but that could change if other states pass similar parental consent policies—or if the Biden administration appeals the decision to the Supreme Court.
The author of the opinion, Judge Stuart Kyle Duncan, was the lead attorney for the plaintiffs in Hobby Lobby, a 2014 case that limited access to birth control under the Affordable Care Act. (Duncan is a darling of the far-right and appeared on Donald Trump’s Supreme Court shortlist in 2020.)
Abortion has been almost totally banned in Texas since September 2021. As Nan Kirkpatrick, director of external affairs at the Texas-based youth reproductive justice group Jane’s Due Process (JDP), previously told Jezebel, limiting young people’s access to birth control when abortion is banned carries disparate harm as teens have “especially limited ability to travel out-of-state for care.”
This case began in April 2020 when a Texas man named Alexander Deanda sued the U.S. Department of Health and Human Services, which oversees the Title X program, to challenge the confidentiality rules. Deanda said he was “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage” and argued that Title X “enabl[es] children to access to prescription contraception and other family-planning services that facilitate sexual promiscuity and pre-marital sex when their parents object to this behavior.”
Let’s pause for a moment to acknowledge that while prescription birth control is great for preventing pregnancy, it’s also used for other, non-sex-related reasons, like managing heavy periods. Plus, Texas teens can still buy condoms, or have sex without using birth control. It’s clear that Deanda’s goal—and that of the conservative movement that agrees with him—is to gut family planning networks and limit people’s access to the most effective types of birth control because of a willfully obtuse belief that these attacks will mean more people will only have sex in order to procreate.
Beyond the general horror of this case, there are a few other wild things to note. The appeals court said state law overrides federal law, which is not how the constitution is supposed to work. But Duncan said there’s nothing wrong here. “We hold that Title X does not preempt Texas’s law,” he wrote. “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). To the contrary, the two laws reinforce each other.”
Second, lawyers for the federal government noted that Deanda never claimed that any of his three daughters actually went to a federal family planning clinic for birth control, nor ever intended to go there for that reason. He just said the very existence of the program undermined his ability to consent to his daughters’ medical care. He shouldn’t have legal standing to sue! But Duncan waved those concerns away, writing: “Parents’ standing to sue should not depend on whether the [HHS] Secretary has successfully kept them in the dark about their children’s sex lives.”
And, finally, Deanda’s lawyer is the notorious Jonathan Mitchell, the architect of the Texas bounty hunter abortion ban, S.B. 8, and a leading proponent of resuscitating the Victorian-era Comstock Act to ban all abortions nationwide. Mitchell really doesn’t like birth control. In a March 2020 legal brief in a case challenging the Obamacare birth control coverage requirement, he said contraception isn’t preventive healthcare because it’s not needed to prevent pregnancy when women can just keep their legs closed instead. That’s not an exaggeration. He wrote:
“Contraception and sterilization are simply devices that enable women who do not wish to become pregnant—but who are unwilling to refrain from sexual intercourse—to engage in sexual intercourse while greatly reducing their risk of pregnancy.”
Charming! Mitchell is also representing a Texas man suing three of his ex-wife’s friends for allegedly helping her get an abortion. Mitchell filed the case not under the bounty hunter ban he wrote, but under the state’s wrongful death statute. As we know from the recent Alabama Supreme Court ruling on frozen embryos, getting courts to agree that embryos or fetuses are people can have disastrous consequences.
If someone tells you this birth control case is simply about “parental rights,” well, now you know enough to understand that it’s a part of a larger effort to exert patriarchal control over the bodies of girls, women, and people who can get pregnant.
GET JEZEBEL RIGHT IN YOUR INBOX
Still here. Still without airbrushing. Still with teeth.
