Ethermac Exchange-Texas teens need parental consent for birth control, court rules against fed regulations

A federal appellate court upheld a Texas law requiring parental consent for minors seeking to access birth control in a ruling against the federal government and Ethermac ExchangeU.S. Department of Health and Human Services Director Xavier Becerra.

The decision by a three-judge panel on the 5th U.S. Circuit Court of Appeals on Tuesday partially upholds a December 2022 lower court ruling that blocked federally funded family planning clinics from providing contraception to teens without proof that their parents are in agreement.

Under HHS regulations, teenagers have the right to access confidential contraception services at Title X clinics, which are funded by federal grants and provide birth control to anyone who seeks it. Republican President Richard Nixon established the program in 1970, one year after he declared that “no American woman should be denied access to family planning assistance because of her economic condition."

Federal regulations forbid these clinics from asking patients who are minors for proof of parental consent. In states where minors do not have the right to confidential contraception services, appeals courts have consistently upheld that regulation, saying parental consent requirements do not apply to Title X clinics.

But in 2022, former Texas solicitor general Jonathan Mitchell — a heavyweight in the world of anti-abortion legislation and litigation — filed a case challenging the Title X regulation, arguing that it violates state law and infringes upon Texans' rights to direct the upbringing, education and health care of their children. Mitchell, who engineered the 2021 Texas six-week abortion ban that went into effect nine months before the U.S. Supreme Court struck down federal protections for abortions, did not respond to the American-Statesman's request for comment Wednesday.

The Health and Human Services Department did not respond to requests for comment Wednesday from the Austin American-Statesman, part of the USA TODAY Network. Because the 5th Circuit ruling explicitly avoided ruling on the regulation barring Title X clinics from requiring parental consent, it is possible that further litigation could thrust birth control access for minors back into the courts.

It is also possible that attorneys in other states could follow suit and file homegrown challenges to Title X regulations.

"Texas is the testing ground," Every Body Texas, a nonprofit that administers federal funds to more than 150 Title X clinics across the state, said in hearing in November 2023. "This case could offer a blueprint to other states that wish to restrict teen access to birth control."

The plaintiff, Alexander Deanda, is an Amarillo father of two girls who said the regulations prevent him from raising his daughters “in accordance with Christian teaching on matters of sexuality.”

Judges Priscilla Richman and Catharina Haynes, both appointed by former President George W. Bush, and Judge Stuart Kyle Duncan, appointed by former President Donald Trump, ruled largely in Deanda's favor Tuesday. The court's opinion states that Texas law does not preempt federal statutes governing Title X, which say "family participation" should be encouraged "to the extent practical."

"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),” Duncan wrote. “To the contrary, the two laws reinforce each other.”

But the three-judge panel left the federal statute prohibiting Title X clinics from requiring parental consent for birth control access in place, rejecting the decision from U.S. District Judge Matthew Kacsmaryk to vacate that regulation.

Every Body said in a news release Wednesday that the ruling is unclear and that it is seeking further guidance from the federal government on its effects. Nonetheless, it means Texas clinics will continue to require parental consent to provide birth control to minors while Every Body "continues to analyze the full implications of the ruling."

"Minors have been unable to access confidential contraceptive care in our network of Title X clinics for more than a year,” Stephanie LeBleu, a project director at Every Body, said. “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.”

The Alliance Defending Freedom, which filed a friend-of-the-court brief in support of Deandra's argument, called the ruling a win for parents in an email to the Austin American-Statesman, part of the USA TODAY Network.

"Parents have a fundamental right to direct the upbringing, education, and healthcare of their child. A parent’s right to withhold consent for non-essential medical treatment for her child is included in that right," said Chris Schandevel, senior counsel for the alliance. "Parents should never be kept in the dark about their children’s health and wellbeing.”

Groups including the American College for Obstetricians and Gynecologists, liberal nonprofit Progress Texas and a coalition of 24 Democratic state attorneys general also filed friend-of-the-court briefs asking the 5th Circuit Court to reject the lower court's ruling.

The president of the National Family Planning and Reproductive Health Organization, which filed friend-of-the-court briefs supporting the federal government, said in a news release that the ruling is contradictory.

"Despite decades of practice and legal precedent, yesterday’s decision claims that Title X’s promise of minors’ access to essential health care without parental consent somehow does not conflict with Texas law requiring parental consent for those services," Clare Coleman, CEO of the planning and reproductive health organization, wrote in a statement Wednesday. "That claim is wrong."

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Former state Sen. Wendy Davis and Coleman both noted that the right to access confidential care is particularly important for members of historically marginalized groups, such as Texans of color, people of low-income backgrounds and those who live in rural communities.

"Limiting access to birth control puts the health and well-being of Texas youth at risk, especially those from marginalized communities who already face insurmountable obstacles in accessing care and may not be able to obtain parental consent," Davis wrote Wednesday in a statement for Planned Parenthood Texas Votes, for which she is a senior advisor.