Hostname: page-component-74656f9884-npj9w Total loading time: 0 Render date: 2026-11-07T03:21:04.136Z Has data issue: false hasContentIssue false
  • English
  • Français

Deanda v. Becerra: The Implications of the New Legal Attack on Longstanding Title X Policy

Published online by Cambridge University Press:  08 May 2025

Elizabeth Tobin-Tyler  and
Aidea Downie
Elizabeth Tobin-Tyler*
Affiliation:
Brown University School of Public Health, Providence, RI, USA
Aidea Downie
Affiliation:
Brown University School of Public Health, Providence, RI, USA
*
Corresponding author: Elizabeth Tobin-Tyler; Email: elizabeth_tobin-tyler@brown.edu
Rights & Permissions [Opens in a new window]

Abstract

This commentary analyzes the recent attacks on adolescents’ access to contraception by religious and parental rights activists and the conservative legal movement. Specifically, we focus on Deanda v. Becerra, a 2024 case in which the Fifth Circuit Court of Appeals held that a Texas state law requiring parental consent for minors to access contraception is not preempted by a longstanding policy under Title X of the federal Public Health Service Act that prohibits clinics receiving federal funding from requiring parental consent or notification. We first describe existing laws governing minors’ confidential access to reproductive health care, including the federal constitutional framework for parental rights, state parental notification and consent laws, and Title X, the federal law that provides federal funds to reproductive health care clinics for low-income people. We then examine and critique the Federal District Court ruling in Deanda, which elevated individual religious and parental rights over public health concerns, and the Fifth Circuit Court of Appeals decision in that case, which undermined federal public health authority and jeopardized access to reproductive health care for low-income adolescents. Finally, we assess the public health and reproductive rights implications of restricted access to reproductive health care for minors and consider possible future directions and advocacy opportunities for reproductive, public health and legal advocates to promote continued access to contraception for adolescents despite mounting legal challenges.

Keywords

reproductive rightsminorsparental consentcontraceptionTitle X

Information

Type
Articles
Information
American Journal of Law & Medicine , Volume 51 , Issue 1 , March 2025 , pp. 166 - 177
Copyright
© 2025 The Author(s). Published by Cambridge University Press on behalf of American Society of Law, Medicine & Ethics and Trustees of Boston University

Introduction

In July 2022, just after the Supreme Court decided in Dobbs v. Jackson Women’s Health that access to abortion is not a constitutional right, Congressional Democrats introduced the Right to Contraception Act, which aimed to codify in federal law both the right for individuals to access and the ability of health care providers to provide contraception.Footnote 1 The bill failed in the House of Representatives, with 195 Republicans voting against it.Footnote 2 Reproductive rights advocates warned that Dobbs would embolden religious conservative efforts to roll back protections for contraception access.Footnote 3 Simultaneous to the attack on reproductive rights has been a growing “parents’ rights” agenda as part of the conservative legal and political movement. “Parental rights” are a flashpoint in many state legislatures when it comes to limiting government influence in the family, with such rights being leveraged in service of initiatives ranging from the parental rejection of vaccination requirements to parents seeking to limit public school education about gender, sexuality and race.Footnote 4

These conservative movements converged in 2022 in Deanda v. Becerra. In the case, a Texas father, Alexander Deanda, claimed that the federalFootnote 5 prohibition on requiring parental consent or notification for adolescents to access prescription contraception and family planning services, a longstanding policy under Title X of the Public Health Service Act, violated his constitutional right to direct the upbringing of his children and violated his rights under the Religious Freedom Restoration Act of 1993 (RFRA).Footnote 6 He also argued that U.S. Department of Health and Human Services (HHS) regulations precluding parental consent and notification by Title X clinics violated his rights under a Texas law requiring parental consent for provision of health care to minors.Footnote 7 Specifically, he argued that, in allowing his daughters to potentially access contraception at a federally funded Title X clinic without his consent, the federal government undermined both his parental rights and his religious beliefs against premarital sex.Footnote 8 The U.S. District Court’s ultimate decision siding with Deanda,Footnote 9 as well as the Fifth Circuit Court of Appeals decision upholding the District Court decision in part,Footnote 10 not only ignored the evidence demonstrating that confidential access to contraception is important to adolescent and public health, but also disrupted nearly forty years of Title X policy and significantly curbed the authority of HHS to ensure that federal law is carried out as intended by Congress.

Forty percent of individuals ages fifteen to nineteen report having had sexual intercourse.Footnote 11 Research demonstrates that most adolescents already seek parental involvement in reproductive health care and that requiring parental consent for contraception does not discourage teen sexual activity; it simply makes it riskier.Footnote 12 In a post-Dobbs world, contraceptive access for adolescents who are unable or unwilling to engage their parents in their reproductive health care is more important than ever, particularly in abortion ban states like Texas. This essay describes federal and state laws governing parental rights in the context of adolescent access to contraception and critiques the District and Fifth Circuit court decisions in Deanda, demonstrating how they ignore standard legal procedure and disrupt longstanding precedent. It then highlights existing evidence on the benefits to adolescent and public health of preserving confidential access to contraception and discusses the reproductive rights implications of removing that access. Finally, it discusses the dangers inherent in the conservative legal attack on contraception access and calls for advocates to remain vigilant in protecting reproductive rights for minors and adults.

The Legal Context: Parental Rights and Adolescent Access to Contraception

The Constitutional Framework

In the 1965 case Griswold v. Connecticut, the Supreme Court held that married individuals have a right to contraception under various guarantees within the Bill of Rights, which create penumbras supporting at least a limited right to privacy in seeking certain medical care.Footnote 13 Specifically, the Court found that “zones of privacy” emanate from the privacy-related interests protected by the First, Third, Fourth, and Ninth Amendments.Footnote 14 Then, in the 1977 case Carey v. Population Services International, the Court applied strict scrutiny in analyzing a New York law that prohibited the sale or distribution of non-prescription contraceptives to anyone under the age of sixteen and found the statute unconstitutional.Footnote 15 In doing so, the Court embraced the more common understanding at the time that the Due Process Clause of the Fourteenth Amendment itself protected privacy in certain intimate decisions.Footnote 16 The Court further noted that the “decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices.”Footnote 17 The right to contraception for adults and access to contraception for minors, at least in some circumstances, is thus longstanding constitutional precedent. Nonetheless, in his concurrence in Dobbs, Justice Clarence Thomas indicated that he believes prior cases decided based on the right to privacy were wrongly decided,Footnote 18 potentially opening the door for advocates to challenge these rights.

While the Supreme Court has protected certain reproductive rights for minors, it has also made clear that parents have a fundamental interest in decision-making related to their children’s medical care. In a line of cases beginning in the 1930s, the Supreme Court held that parents have a constitutional liberty interest under the Due Process Clause of the Fourteenth Amendment to make decisions about their children’s education free from undue government interference.Footnote 19 The Court later extended the right of parents to make most medical decisions for their children, subject to a weighing of state interests.Footnote 20 However, like other constitutionally protected rights, this right is not absolute. Government may subject parents’ rights to regulation if it can demonstrate a sufficient interest in limiting parents’ decision-making authority.Footnote 21 For example, the government may override parental decision-making to protect a child from harm, such as parental abuse or neglect, or to protect public health, such as by imposing school vaccination requirements.Footnote 22

State Parental Consent Laws

In addition to protections for parents to make medical decisions for their children under the Fourteenth Amendment, state laws generally require parental consent for medical treatment of a minor.Footnote 23 But courts have recognized that some state interests may outweigh requiring parental consent in every context. These interests include ensuring that adolescents receive needed medical care in cases where parents may not be acting in their child’s best interests and protecting public health, such as reducing the spread of infectious disease and preventing teen pregnancies.Footnote 24 Specifically, state laws have carved out particular types of medical care that minors may access without parental consent.Footnote 25 Relevant categories of treatment include: drug and alcohol treatment, sexually transmitted infection (STI) testing, and contraception.Footnote 26 The majority of states and the District of Columbia permit all minors to obtain contraception without parental consent, and twenty-four states allow limited categories of minors to do so.Footnote 27 States that do not explicitly permit access to contraception without parental consent may allow those deemed “mature minors” by clinicians — indicating they are sufficiently mature to make medical decisions on their own behalf — to receive contraceptive care.Footnote 28

While parental involvement in sexual and reproductive health care decisions for adolescents is ideal, the laws referenced above demonstrate that policymakers and clinicians have long recognized that some situations warrant protecting autonomous decision-making by minors. Studies show a majority of adolescents report involving parents in reproductive health care decisions, including contraception.Footnote 29 On the other hand, requiring parental consent has been shown to reduce adolescents’ willingness to access reproductive health services.Footnote 30 Most notably, a 2005 survey by Jones et al. found that only fifty-nine percent of youth under age eighteen who received care at Planned Parenthood clinics would continue utilizing the clinic for prescription contraceptives and that around forty-five percent would switch to an over-the-counter (“OTC”) contraceptive method (e.g., condoms) if parental consent was required.Footnote 31 Research also suggests that state laws requiring parental consent for reproductive health care can lead to a significant reduction in youth utilization of family planning services.Footnote 32

Title X

Title X of the Public Health Service Act was enacted in 1970 to provide grants to public and non-profit organizations that primarily offer family planning services to low-income individuals and households.Footnote 33 Historically, the Title X program has served roughly four million people annually, but these numbers have decreased in recent years due to the COVID pandemic and major cuts to the program by the Trump administration.Footnote 34 In 2023, eighty-five percent of the program’s downstream beneficiaries were female.Footnote 35 HHS regulations require that Title X clinics provide the following: 1) contraceptive education and counseling; 2) breast and cervical cancer screening; 3) STI and human immunodeficiency virus (HIV) testing, prevention, counseling, and referrals; and 4) pregnancy diagnosis and counseling.Footnote 36 In 2023, 60% of the individuals served by Title X clinics had incomes below 100% and 83% had incomes below 250% of the federal poverty level (FPL).Footnote 37 Those with incomes below 100% of the FPL receive free care; those above that threshold (up to 250% of the FPL) pay for care on a sliding scale.Footnote 38 To receive federal funding through Title X, participating clinics must abide by governing regulations or risk the loss of those funds.Footnote 39

Minors are a small proportion of Title X clinic patients. In 2023, only eight percent of Title X beneficiaries were below the age of eighteen.Footnote 40 However, Title X services are critical to reproductive health care for minors, especially low-income teens. A recent study found that Title X clinics provided fifty-eight percent more of the “most effective contraceptives” to adolescents at risk for pregnancy than non-Title X clinics.Footnote 41 Recognizing that parental notification and consent may not be appropriate in all circumstances, Congress specifically amended Title X in 1981 to direct clinicians to seek to “encourage” family participation “to the extent practical.”Footnote 42 Since then, regulations governing Title X-funded clinics have prohibited clinics from requiring that clinicians seek parental consent before providing services to minors. In 1983, courts relying on this statutory language invalidated regulations promulgated by the Reagan-era HHS requiring that Title X clinics obtain parental consent and to comply with any state parental notification laws.Footnote 43 In the decades following the invalidation of these regulations, courts have consistently held that state parental notification laws conflict with the language of Title X.Footnote 44 Current regulations, promulgated during the Biden Administration, affirmatively state that: “Title X projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services.”Footnote 45

Studies suggest that when adolescents do not have access to Title X-funded confidential reproductive health care, teens birth rates increase. For example, a study of McHenry County, Illinois, where policymakers rejected Title X funding in order to require parental consent for minors to receive contraceptives, found that birth rates increased relative to other counties that maintained confidential access to contraceptives through Title X clinics.Footnote 46 Furthermore, the availability of confidential contraceptive access, as provided under Title X, does not appear to encourage a rise in youth sexual activity as some critics allege.Footnote 47

Deanda v. Becerra: Texas’ Parental Consent Law in Conflict with Title X

The Federal District Court

In 2020, Alexander Deanda sued HHS Director Xavier Becerra in federal court in the Northern District of Texas, claiming that HHS’ administration of the Title X program allowing Deanda’s three minor daughters to obtain contraception without parental notification or consent violated his parental rights under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, his rights under RFRA, and his rights under the Texas Family Code, which requires parental consent for medical treatment of minors under the age of 18.Footnote 48 Specifically, Deanda argued that Title X offends his Christian beliefs, objecting to the regulations’ allegedly facilitating “sexual promiscuity and pre-marital sex” for his daughters.Footnote 49 None of Deanda’s daughters had ever sought confidential reproductive health care at a Title X clinic, nor did they appear to have plans to. Deanda’s case was supported by an amicus brief submitted by the conservative legal organization Alliance Defending FreedomFootnote 50 and was brought by conservative lawyer Jonathan Mitchell, who was the architect of Texas’ SB8 law, which permits non-governmental individuals to bring a civil action against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”Footnote 51

Federal District Court Judge Matthew Kacsmaryk, the only judge in the Northern District of Texas, is well-known for deciding cases in favor of conservative legal groups.Footnote 52 In deciding competing motions for summary judgment, Kacsmaryk dismissed the important threshold challenge as to whether Deanda had met the standing requirement — the legal requirement that a plaintiff in a lawsuit demonstrate a concrete injury from the law being challenged.Footnote 53 In this case, since his daughters had never received care at a Title X clinic, it would seem that Deanda did not have standing. However, Kacsmaryk wrote that Deanda’s daughters’ access to a Title X clinic created “an ongoing, continuous and imminent risk” burdening his Christian values.Footnote 54

Further signifying acceptance for the growing parental rights movement among conservative politicians and advocacy groups, the court also held that Deanda’s constitutional rights had been violated by HHS’ administration of Title X, by infringing on his right to direct his children’s upbringing.Footnote 55 In addition to finding that Deanda’s rights had been violated under Texas law and the Constitution, Kacsmaryk held unconstitutional the 2021 HHS regulations prohibiting health care providers from notifying parents or requiring parental consent when they provide reproductive health care to minors, even though the rules were not even in effect when Deanda filed his lawsuit and had not been directly challenged in his complaint.Footnote 56 In his opinion and order, Kacsmaryk did not address Deanda’s claim that his rights were violated under RFRA,Footnote 57 but found for HHS on that claim in his final judgment.Footnote 58 Deanda apparently withdrew his RFRA claim when the government appealed the District Court’s decision.Footnote 59

Perhaps most surprisingly, the court held that Title X does not preempt the Texas law requiring parental consent for medical treatment.Footnote 60 The U.S. Constitution Supremacy Clause requires that when a federal and state law conflict, the federal law supersedes the state law.Footnote 61 In a convoluted interpretation of Title X, the court suggested that because the federal law encourages “family participation,” the Texas law requiring parental consent does not create a direct conflict with federal law; it merely carries out this provision of the federal Act.Footnote 62 The court seemed to give little to no weight to the “to the extent practical” language in the law,Footnote 63 which clearly suggests that not all minors seeking care must have parental consent. In its preemption discussion and its finding the 2021 HHS regulations prohibiting parental consent or notification requirements by Title X clinics unconstitutional, the court at least suggested that these Biden-era regulations might not carry the weight of federal law.Footnote 64

The Fifth Circuit Court of Appeals

The Biden Administration appealed the District Court’s decision to the Fifth Circuit Court of Appeals in New Orleans (which covers Texas, Louisiana and Mississippi).Footnote 65 On March 12, 2024, a three-judge panel unanimously affirmed in part the District Court decision, holding that “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.”Footnote 66 The Fifth Circuit, however, vacated the District Court’s order blocking the 2021 Title X regulations.Footnote 67 Because the case could be decided on the issue of whether or not Title X preempts the Texas law, the Court of Appeals declined to decide Deanda’s constitutional claim.Footnote 68

Like the District Court, the Fifth Circuit rejected the Biden Administration’s objection that Deanda did not have standing since his daughters never sought care at a Title X clinic.Footnote 69 The Court was clear that Christian parents are injured just by virtue of HHS carrying out longstanding policy allowing adolescent contraceptive access without parental consent:

To be sure, if one of Deanda’s daughters did get contraceptives from a Title X provider without his knowing, that would also injure Deanda. But it would mean Deanda had been injured not once but twice—once by the Secretary’s nullifying his parental rights and a second time by the Secretary’s succeeding in delivering birth control to Deanda’s daughter behind his back.Footnote 70

The panel did recognize the problem with vacating the 2021 HHS regulations since they were not challenged in Deanda’s original lawsuit.Footnote 71 Nonetheless, it agreed with the lower court that longstanding Title X law and policy protecting confidential access to contraception for minors do not preempt conflicting Texas law,Footnote 72 rejecting forty years of precedent and turning constitutional principles governing preemption on their head. Although the Fifth Circuit decision only applies to Texas, it is clear that those challenging longstanding Title X policy are not finished. On July 25, 2024, Texas Attorney General Ken Paxton announced that he had filed a complaint in the Northern District of Texas — returning to the courtroom of Judge Matthew Kacsmaryk — claiming that the Biden Administration is “flouting the law of Texas” and previous court orders by enforcing its Title X rule.Footnote 73 Texas is asking the court to hold that the Biden rule is unlawful and to issue a permanent injunction against its enforcement.Footnote 74 Given Kacsmaryk’s previous decision in Deanda, it seems likely that he will grant Texas the relief it is seeking. If Kacsmaryk nullifies the rule, other states will undoubtedly argue that they are not bound by it.

Public Health Implications

Limiting minors’ access to contraception has many potential consequences for public health. While most teens report parental involvement in their reproductive health care, requiring parental consent in every case may have long-term effects related to sexually transmitted infections (STIs) and teen pregnancy.Footnote 75

Sexually Transmitted Infections (STIs)

Research shows that barriers to reproductive health care services may reduce or delay timely access to critical educational content and services essential to promoting STI prevention and treatment.Footnote 76 The prevalence and incidence of STIs within the fifteen to twenty-four age group has been on the rise.Footnote 77 In 2018, 45.5% of U.S. STI “incident infections,” or roughly 11.9 million incidences of STIs, were among that age group.Footnote 78 The most prevalent STIs were chlamydia, genital herpes, trichomoniasis, and human papillomavirus.Footnote 79 Delayed infection diagnosis and treatment may have short- and long-term physical, reproductive, neurological, and psychological implications for the patient.Footnote 80

Not only do STIs have an impact on patient health outcomes, but they also have nationwide economic ramifications. A study led by researchers from the Centers for Disease Control and Prevention (CDC) estimated that the incident STI cases from 2018 alone will result in about sixteen billion dollars in direct lifetime medical costs.Footnote 81 The staggering countrywide economic burden of STIs and the high incidence of STIs among adolescents and young adults demonstrates a need for accessible, confidential, and comprehensive reproductive health services. Limiting or chilling access, as the Fifth Circuit’s decision in Deanda will likely do, runs counter to the promotion of public health.

Teen Pregnancy Rates

Overall, the United States has seen significant declines in teen pregnancies in the past 30 years. The birth rate for the fifteen to nineteen age range declined seventy-eight percent from 1991 to 2021.Footnote 82 In 2022, the national teen birth rate declined further to 13.6 birth per 1,000 females aged 15 to 19.Footnote 83 The CDC suggests that this decline is the result of more teens abstaining from sexual activity as well as higher utilization of contraception.Footnote 84 It should be noted, however, that teen birth rates vary by race, ethnicity, and socioeconomic status. Rates are higher among Indigenous, Hispanic and Black female teens.Footnote 85 Maintaining Title X contraceptive access for these groups of adolescents is crucial, as they make up a large portion of Title X’s client base.Footnote 86

Geography also plays a large role in teen pregnancy rates. Although national teen birth rates have declined over the past three decades, many southern states, including Mississippi, Arkansas, Louisiana, Kentucky, Alabama, and Texas, have teen birth rates ranging from 1.5 to 2 times the national teen birth rate.Footnote 87 Mississippi has the highest rate with 26.4 teen births per 1,000 females aged fifteen to nineteen, nearly double the national rate.Footnote 88 The majority of these states have passed legislation curtailing minors’ ability to receive contraceptive services without parental notification or consent.Footnote 89 Researchers have found parental notification and consent laws to have varying effects on teen birth rates.Footnote 90 While the evidence does not conclusively demonstrate a causal link between teen pregnancy rates and state-mandated parental consent or notification laws, studies suggest that these laws are associated with higher teen birth rates and lower teen abortion rates.Footnote 91

Texas, the state involved in the Deanda v. Becerra case, has consistently ranked among the top ten states for teen birth rates, with one in six teen births being repeat births.Footnote 92 Texas also has among the most restrictive abortion bans in the country, providing an exception only if there is a “risk of death or substantial impairment of a major bodily function” for the pregnant person and providing no exception for rape or incest.Footnote 93

Implications for Reproductive Health and Rights

Deanda v. Becerra is in line with several recent cases brought by the conservative legal movement seeking to curtail reproductive rights, often based at least partially on religious grounds.Footnote 94 In siding with Deanda, the District Court and the Fifth Circuit understood the relevant injury to be the infringement of Deanda’s rightful patriarchal role (as understood through his Christian beliefs) to control his daughters’ reproductive health.Footnote 95 In viewing Deanda as the sole aggrieved party, both courts ignored the consequences of requiring parental consent for adolescent girls’ reproductive health and bodily autonomy. While Deanda’s victory was ultimately based on the Fifth Circuit’s determination that Texas’ parental consent law is not preempted by Title X, the case demonstrates a concerning trend: challenges to public health and civil rights laws using RFRA,Footnote 96 which requires that the federal government demonstrate a compelling interest in legislating or rulemaking to protect public health interests when such laws burden an individual’s free exercise of religion.Footnote 97 Individuals, supported by conservative legal organizations, are increasingly using RFRA to disrupt longstanding public health practices.Footnote 98

Neither the District Court nor the Fifth Circuit grappled with the large body of public health evidence demonstrating the need for and benefits of minors’ confidential access to reproductive health care. Despite contradicting evidence, the courts seemed to accept Deanda’s argument that his children’s ability to “access prescription contraception or other family planning services … facilitate sexual promiscuity and pre-marital sex.”Footnote 99 They also ignored the considerable stakes of limiting access to contraception for teens experiencing abuse. The CDC reports that at least twenty-five percent of girls and five percent of boys experience sexual abuse, most often by someone they know, such as family members.Footnote 100 For these teens, access to confidential reproductive health care may be lifesaving. For low-income teens, especially those from racial and ethnic minority groups, who may not access vital reproductive health care elsewhere and/or who need access to confidential services, Title X clinics offer essential health care. The continued challenges to Title X threaten to harm the health of countless minors, particularly those from under-resourced groups, exacerbating health and socioeconomic disparities.

Moving Forward

Given the conservative turn of the Supreme Court, the Biden Administration had to weigh carefully when to appeal unfavorable lower court rulings, especially when they involve regulatory authority. Recent Supreme Court decisions have continued to chip away at federal agency authority, culminating in the Court’s 2024 decision in Loper Bright Enterprises v. Raimondo Footnote 101 to overturn Chevron v. Natural Resources Defense Council. Footnote 102 In that case, the Court rejected long standing doctrine directing courts to defer to federal agencies when legislation is ambiguous in its delegation of regulatory authority.Footnote 103 Loper Bright gives lower courts, like the conservative Fifth Circuit Court of Appeals, much more leeway to reject agency regulations that they may deem to be beyond an agency’s statutory authority. Because the 2021 Title X regulations are particularly contested by conservative groups, it is likely that there will continue to be legal challenges to HHS authority. The Biden Administration did not appeal the Fifth Circuit’s decision in Deanda, likely because it feared that the Supreme Court might affirm, encouraging additional litigation challenging the regulations as inconsistent with state parental consent laws. The second Trump Administration is unlikely to sustain the Biden-era Title X regulations supporting confidential access to contraception for adolescents.

As courts and state legislatures continue to retract long held reproductive rights, new options for continuing to provide confidential access to contraception for minors are arising. One option is the growing availability of over-the-counter (OTC) contraception, which the American College of Obstetricians and Gynecologists (ACOG) supports without age restrictions.Footnote 104 Expanding access to OTC emergency contraception is also critical, especially for teens experiencing sexual assault or coercion. But because OTC contraceptives may be cost prohibitive for many adolescents, especially those who utilize Title X clinics, regulations requiring insurance coverage and confidentiality for OTC contraception are critical. In addition to OTC contraception, the types of providers that offer reproductive health care, including contraception to adolescents, should be expanded. Community health centers, which already serve low-income populations, can play a critical role in supporting reproductive health for adolescents.Footnote 105 Pediatricians should be trained and encouraged to provide reproductive health care to their teen patients. But even with expanded access outside of Title X clinics, legal advocates must continue to defend longstanding Title X protections to preserve access to reproductive care for minors.

Conclusion

The Fifth Circuit’s decision in Deanda v. Becerra demonstrates how reproductive rights are under fire well beyond access to abortion. But it also previews other potential conservative attacks on reproductive health care access that may gain steam in courts that are increasingly amenable to religious and parental rights claims and leery of federal government authority. Attacks on minors’ access to reproductive health care not only harms adolescent health, they signal the larger goals of conservative legal groups — undermining federal public health authority, privileging religious and parental rights over other rights, and stripping away reproductive freedom. As with abortion funding restrictions, those who depend on government assistance to access reproductive health care will suffer the worst consequences. Public health leaders, reproductive rights advocates, and lawyers must continue to fight for adolescent access to contraception and other reproductive health care services by pointing to the facts: confidential contraception access does not increase the number of teens who engage in sexual activity. It protects their health, well-being, and future opportunities.

References

1 See Right to Contraception Act, H.R. 8373, 117th Cong. (2022); Right to Contraception Act, S. 4557, 117th Cong. (2022).

2 Roll Call 385 | Bill Number: H.R. 8373, Clerk of the U.S. House of Representatives, https://clerk.house.gov/Votes/2022385?Page=17 (last visited Dec. 23, 2024).

3 See, e.g., Mary Ziegler, The Right’s War on Birth Control is Already Starting, MSNBC (Oct. 10, 2023, 1:58 PM ET), https://www.msnbc.com/opinion/msnbc-opinion/birth-control-ban-alliance-defending-freedom-rcna119675.

4 See Elizabeth Tobin-Tyler, The Past and Future of Parental Rights: Politics, Power, Pluralism, and Public Health, 30 Va. J. Soc. Pol’y & L. 313, 322–41 (2023).

5 Title X, passed by Congress in 1970 as part of the Public Health Service Act, provides federal funding to family planning clinics that serve low-income patients. See infra notes 33–39 and accompanying text.

6 See Complaint at 8–10, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092).

7 See id.; see also Tex. Fam. Code Ann. § 151.001(a)(6) (West 2007).

8 See Complaint at 8–10, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092).

9 See Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024).

10 See Deanda v. Becerra, 96 F.4th 750, 761–69 (5th Cir. 2024).

11 Adolescent Sexual and Reproductive Health in the United States, Guttmacher Inst. (Sept. 2019), https://www.guttmacher.org/fact-sheet/american-teens-sexual-and-reproductive-health.

12 See Rachel K. Jones & Heather Boonstra, Confidential Reproductive Health Care for Adolescents, 17 Current Op. Obstetrics & Gynecology 456 (2005); see also infra notes 29–32, 76–93 and accompanying text.

13 Griswold v. Connecticut, 381 U.S. 479, 484–86 (1965).

14 Id. In 1972, the Supreme Court extended this privacy-grounded right to non-married individuals. See Eisenstadt v. Baird, 405 U.S. 438 (1972).

15 See Carey v. Population Servs. Int’l, 431 U.S. 678, 691–99 (1977).

16 Id. at 684–85.

17 Id. at 685.

18 See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 331–36 (2022) (Thomas, J., concurring).

19 See Meyer v. Nebraska, 262 U.S. 390, 399–403 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 533–35 (1925); Troxel v. Granville, 530 U.S. 57, 65–67 (2000).

20 See Parham v. J.R., 442 U.S. 584, 602–04 (1979).

21 Unlike in its contraceptive access cases, where the Court appears to apply strict scrutiny regularly, the Supreme Court has never formally announced the appropriate level of scrutiny which should apply in parental rights cases. See Tobin-Tyler, supra note 4, at 321–22. In Meyer and Pierce, for example, the Court acknowledged that the state retains power to compel schooling of some kind and to prescribe “reasonable regulations for all schools.” See Meyer, 262 U.S. at 402–03; Pierce, 268 U.S. at 534. While this language might seem to suggest considerable deference, the Court in those cases seemed to engage in some searching scrutiny of the relevant states’ proffered motives in effectively holding those motives to be illegitimate or irrational, at least in the form the state sought to advance them. See Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534–35; see also Troxel, 530 U.S. at 65 (noting that certain liberty interests, including parental interests in directing the upbringing of their children, are entitled to “heightened” protection under the Fourteenth Amendment). In other parental rights cases, the Court seems to engage in an exercise of balancing the state and parental interests. See supra note 20 and accompanying text; see also Prince v. Massachusetts, 321 U.S. 158, 168–71 (1944) (holding that states have broader authority to regulate the activities of children than those of adults in the pursuit of their “legitimate objectives”).

22 Tobin-Tyler, supra note 4, at 317–21, 322–330.

23 Id. at 323.

24 Id.

25 Id.

26 Id.

27 Minors’ Access to Contraceptive Services, Guttmacher Inst. (Aug. 30, 2023), https://www.guttmacher.org/state-policy/explore/minors-access-contraceptive-services.

28 Jesse Hill, Minors’ Rights to Access Sexual and Reproductive Health Care, 113 Am. J. Pub. Health 350, 350 (2023).

29 Rachel K. Jones et al., Adolescents’ Reports of Parental Knowledge of Adolescents’ Use of Sexual Health Services and Their Reactions to Mandated Parental Notification for Prescription Contraception, 293 JAMA 340, 343 (2005).

30 Id. at 343–45.

31 Id.

32 Sourafel Girma & David Paton, Does Parental Consent for Birth Control Affect Underage Pregnancy Rates? The Case of Texas, 50 Demography 2105, 2112–15 (2013).

33 See What is Title X? An Explainer, Physicians for Reprod. Health, https://prh.org/what-is-title-x-an-explainer/ (last updated June 2024).

34 Brittni Frederiksen et al., Rebuilding the Title X Network under the Biden Administration, Kaiser Fam. Found. (May 25, 2023), https://www.kff.org/womens-health-policy/issue-brief/rebuilding-the-title-x-network-under-the-biden-administration/.

35 Phil Killewald et al., U.S. Dep’t of Health & Hum. Servs., Off. of Population Affs., Family Planning Annual Report: 2023 National Summary 46 (2023), https://opa.hhs.gov/sites/default/files/2023-10/2022-FPAR-National-Summary.pdf.

36 See Title X Statutes, Regulations, and Legislative Mandates, U.S. Dep’t of Health & Hum. Servs.: Off. of Population Affs., https://opa.hhs.gov/grant-programs/title-x-service-grants/title-x-statutes-regulations-and-legislative-mandates (last visited Dec. 23, 2024); Off. of Population Affs., U.S. Dep’t of Health & Hum. Servs., Title X Program Handbook 17 – 19 (2022), https://opa.hhs.gov/sites/default/files/2022-07/title-x-program-handbook-july-2022-508.pdf.

37 See Phil Killewald et al., supra note 35, at 59

38 Id. at 9.

39 See Mary Anne Pazanowski, Oklahoma to Ask Court to Unblock HHS Family Planning Money, Bloomberg L. (May 30, 2024, 12:23 PM ET), https://news.bloomberglaw.com/health-law-and-business/oklahoma-to-try-to-force-hhs-to-restore-family-planning-money.

40 See Phil Killewald et al., supra note 35, at 46.

41 Blair G. Darney et al., Title X Improved Access to Most Effective and Moderately Effective Contraception in U.S. Safety-Net Clinics, 2016–18, 41 Health Affairs 497, 503 (2022).

42 Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 931(b)(1), 95 Stat. 357, 570 (codified as amended at 42 U.S.C. § 300).

43 See Wen W. Shen, Congressional Research Service, Title X Parental Consent for Contraceptive Services Litigation: Overview and Initial Observations (Part 1 of 2) 3 (2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10916.

44 Id. at 1, 4 (“As to adolescent services, for almost four decades, lower courts—including the U.S. Courts of Appeals for the District of Columbia, Second, Eighth, and Tenth Circuits—have uniformly concluded that Title X precludes the imposition of a parental notification or consent requirement, including under relevant state laws.”); see also, e.g., Jane Does 1–4 v. Utah Dep’t of Health, 776 F. 2d 253, 255 (10th Cir. 1985); Cnty. of St. Charles v. Missouri Fam. Health Council, 107 F.3d 682, 684–85 (8th Cir. 1997).

45 42 C.F.R. § 59.10 (2024).

46 Madeline Zavodny, Fertility and Parental Consent for Minors to Receive Contraceptives, 94 Am. J. Pub. Health 1347, 1347, 1351 (2004).

47 See Jones & Boonstra, supra note 12; Minors’ Access to Contraceptive Services, supra note 27.

48 See Complaint, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092); see also Tex. Fam. Code Ann. § 151.001(a)(6) (West 2007).

49 See Complaint at 9, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092)

50 The Alliance Defending Freedom website describes the organization as “the world’s largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life. We defend your most cherished liberties in Congress, state legislatures, and courtrooms across the country—all the way to the U.S. Supreme Court if necessary.” See Who We Are, All. Defending Freedom, https://adflegal.org/about-us/ (last visited Dec. 26, 2024).

51 See Jonathan Mitchell, The Legal Mind behind the Texas Abortion Ban, NPR (May 27, 2023, 4:53 PM ET), https://www.npr.org/2023/05/07/1174672358/jonathan-mitchell-the-legal-mind-behind-the-texas-abortion-ban.

52 Most notably, Kacsmaryk also struck down the FDA’s approval of mifepristone, the drugs used for medication abortion. See Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, 668 F. Supp. 3d 507 (N.D. Tex.), aff’d in part and vacated in part, 78 F. 4th 210 (5th Cir. 2023), rev’d, 602 U.S. 367 (2024).

53 See TransUnion LLC v. Ramirez, 594 U.S. 413, 423–25 (2021) (explaining that Article III standing requires showing a “concrete and particularized injury caused by defendant”).

54 Deanda v. Becerra, 645 F. Supp. 3d 600, 613 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024).

55 See id. at 620–29.

56 See id.; see also Deanda v. Becerra, No. 20-CV-092, 2022 WL 17843038, at *1 (N.D. Tex. Dec. 20, 2022) (vacating, in part, the 2021 HHS regulations prohibiting the imposition of parental consent requirements by Title X clinics).

57 See Complaint at 9–10, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092).

58 See Deanda v. Becerra, No. 20-CV-092, 2022 WL 17843038, at *1 (N.D. Tex. Dec. 20, 2022).

59 See Deanda v. Becerra, 96 F. 4th 750, 755 n.2 (5th Cir. 2024).

60 See Deanda v. Becerra, 645 F. Supp. 3d 600, 616–21 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024).

61 See Altria Grp. v. Good, 555 U.S. 70, 76–77 (2008).

62 See Deanda v. Becerra, 645 F. Supp. 3d 600, 617–21 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024).

63 42 U.S.C. § 300(a).

64 See Deanda v. Becerra, 645 F. Supp. 3d 600, 620 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024) (quoting Wyeth v. Levine 555 U.S. 555, 602 (2009) (Thomas, J., concurring)) (“[O]ur federal system in general, and the Supremacy Clause in particular, accords pre-emptive effect to only those policies that are actually authorized by and effectuated through the statutory text[.]”); id. at 620–629 (discussing the unconstitutionality of the administration of the Title X program). The District Court opinion, and consequently the Firth Circuit’s decision, ultimately did not fully address whether the 2021 regulations prohibiting the imposition of parental consent requirements by Title X clinics might have independent preemptive force. See Deanda v. Becerra, 96 F. 4th 750, 767 (5th Cir. 2024).

65 See Deanda v. Becerra, 96 F. 4th 750 (5th Cir. 2024).

66 Id. at 753.

67 See id.

68 See id.

69 See id. at 755–760.

70 Id. at 759.

71 See Deanda v. Becerra, 96 F. 4th 750, 767–68 (5th Cir. 2024).

72 See id. at 761–67.

73 Complaint at 2, Texas v. Becerra, No. 24-cv-00159 (N.D. Tex. July 25, 2024), ECF No. 1.

74 Id.

75 See supra notes 29–32 and accompanying text.

76 See Angela M. Malek et al., Delay in Seeking Care for Sexually Transmitted Diseases in Young Men and Women Attending a Public STD Clinic, 7 Open AIDS J. 7, 9–13 (June 2013); Megan L. Kavanaugh et al., Financial Instability and Delays in Access to Sexual and Reproductive Health Care Due to COVID-19, 31 J. Women’s Health 469, 469–79 (2022).

77 See Cherrie B. Boyer et al., A Renewed Call to Action for Addressing the Alarming Rising Rates of Sexually Transmitted Infections in U.S. Adolescents and Young Adults, 69 J. Adolescent Health 189, 189 (2021).

78 Kristen M. Kreisel et al., Sexually Transmitted Infections Among U.S. Women and Men: Prevalence and Incidence Estimates, 2018, 48 Sexually Transmitted Diseases 208, 208 (2021).

79 Id.

80 See Malek et al., supra note 76, at 7; Sexually Transmitted Infections (STIs), World Health Org. (May 21, 2024), https://www.who.int/news-room/fact-sheets/detail/sexually-transmitted-infections-(stis); see also, e.g., Neurosyphilis, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/24772-neurosyphilis (last visited Dec. 27, 2024).

81 Harrell W. Chesson et al., The Estimated Direct Lifetime Medical Costs of Sexually Transmitted Infections Acquired in the United States in 2018, 48 Sexually Transmitted Diseases 215, 215 (2021).

82 Reproductive Health: About Teen Pregnancy, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/reproductive-health/teen-pregnancy/index.html (last visited Dec. 24, 2024).

83 Alexandria K. Mickler & Jessica Tollestrup, Cong. Rsch. Serv., Teen Birth Trends: In Brief 4 (2024), https://crsreports.congress.gov/product/pdf/R/R45184.

84 Trends in Teen Pregnancy and Childbearing, U.S. Dep’t of Health & Hum. Servs.: Off. of Population Affs., https://opa.hhs.gov/adolescent-health/adolescent-sexual-and-reproductive-health/trends-teen-pregnancy-and-childbearing (last visited Dec. 24, 2024).

85 Id.

86 See Jessica Swafford Marcella, The Title X Program: Setting Standards for Contraceptive and Health Equity, 112 Am. J. Pub. Health S511, S513 (2022).

87 See Stats of the State - Teen Birth Rates, Ctrs. for Disease Control & Prevention https://www.cdc.gov/nchs/pressroom/sosmap/teen-births/teenbirths.htm (last visited Dec. 24, 2024).

88 Id.

89 See Minors’ Access to Contraceptive Services, supra note 27.

90 Annette Tomal, Parental Involvement Laws and Minor and Non-Minor Teen Abortion and Birth Rates, 20 J. Fam. & Econ. Issues 149, 155–59 (1999); Theodore Joyce et al., Changes in Abortions and Births and the Texas Parental Notification Law, 354 New Eng. J. Med. 1031, 1033–36 (2006); Mandy S. Coles et al., How Are Restrictive Abortion Statutes Associated With Unintended Teen Birth?, 47 J. Adolescent Health 160, 163–66 (2010).

91 See Tomal, supra note 90, at 157 – 159; Joyce et al., supra note 90, at 1033–38; Coles et al., supra note 90, 163–66.

92 Eleanor Klibanoff & Mandi Cai, Texas Tops the Nation in Teens Who Give Birth Multiple Times, Tex. Trib. (Feb. 21, 2022, 5:00 AM CT), https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/.

93 Tex. Health & Safety Code Ann. § 170A.002 (West 2022).

94 See State and Federal Reproductive Rights and Abortion Litigation Tracker, Kaiser Fam. Found. (Dec. 4, 2024), https://www.kff.org/report-section/state-and-federal-reproductive-rights-and-abortion-litigation-tracker-federal-litigation/.

95 See Deanda v. Becerra, 645 F. Supp. 3d 600, 610–13 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024); Deanda v. Becerra, 96 F. 4th 750, 756–60 (5th Cir. 2024).

96 See, e.g., Burwell v. Hobby Lobby, 573 US 682 (2014); Braidwood Mgmt., Inc. v. Becerra, 104 F. 4th 930 (2024); see also Bostock v. Clayton County, 590 U.S. 644, 682 (2020) (describing RFRA a “super statute” that “might supersede Title VII [of the 1964 Civil Rights Act]’s commands in appropriate cases”). During the COVID pandemic, RFRA was used to challenge a range of public health interventions. See generally Ryan Houser & Andrés Constantin, COVID-19, Religious Freedom and the Law: The United States’ Case, 49 Am. J.L. & Med. 24 (2023); In response to this trend, in 2023, U.S. Representatives Robert C. Scott (D-VA-03), Rep. Steve Cohen (TN-09), Jamie Raskin (MD-08), Mary Gay Scanlon (PA-05) and Senator Cory Booker (D-NJ) proposed the Do No Harm Act, which would amend RFRA to limit its application against nondiscrimination laws, employment laws governing wages and collective bargaining, child labor and protection laws, access to health care, services provided through a government contract or grant, and services by government officials. H.R. 2725, 118th Cong. (2023).

97 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (1993).

98 See sources cited supra note 96.

99 Complaint at 9, Deanda v. Becerra, 645 F. Supp. 3d 600 (N.D. Tex. 2022) (No. 20-cv-00092); see also Deanda v. Becerra, 645 F. Supp. 3d 600, 610–13 (N.D. Tex. 2022), rev’d in part and aff’d in part, 96 F. 4th 750 (2024); Deanda v. Becerra, 96 F. 4th 750, 756–60 (5th Cir. 2024).

100 Child Abuse and Neglect Prevention: About Child Sexual Abuse, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/child-abuse-neglect/about/about-child-sexual-abuse.html (last visited Dec. 28, 2024).

101 See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).

102 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).

103 See Loper Bright, 144 S. Ct. at 2266–70.

104 See Committee on Gynecologic Practice, American College of Obstetricians and Gynecologists, ACOG Committee Opinion Number 788: Over-the-Counter Access to Hormonal Contraception, 134 Obstetrics & Gynecology e96 (2019), https://journals.lww.com/greenjournal/fulltext/2019/10000/over_the_counter_access_to_hormonal_contraception_.46.aspx

105 See generally Katherine H. Mead et al., The Role of Federally Qualified Health Centers in Delivering Family Planning Services to Adolescents, 57 J. Adolescent Health 87 (2015).