Birth Control Access, Parental Rights Collide in Fifth Circuit

A lawsuit to be argued in the Fifth Circuit on Nov. 6 that sits at the intersection between minors’ reproductive health and parents’ rights could lead the US Supreme Court to examine at least one of those issues.

Reproductive rights advocates see the case as a stepping stone on their opponents’ way to eliminating a privacy right in accessing birth control that dates to the Supreme Court’s 1965 decision in Griswold v. Connecticut.

It’s part of a “clear effort to curtail people’s right to control their own bodies,” said Robin Summers, vice-president and senior counsel at the National Family Planning & Reproductive Health Association. Griswold “is at significant risk,” she said.

That group promotes and supports the work of family planning providers and administrators, especially in the safety net. It filed a friend of the court brief supporting the Department of Health and Human Services in its attempt to have the US Court of Appeals for the Fifth Circuit reverse a December 2022 decision by Judge Matthew J. Kacsmaryk.

The trial judge granted summary judgment for a Texas father who challenged a Title X regulation that prohibits family planning program grantees from telling parents when their children seek the providers’ services.

Kacsmaryk also set aside the rule’s confidentiality provision, citing procedural irregularities during its 2021 adoption by the US Department of Health and Human Services. Title X is the only federal program that supports family planning services.

Contrary to Practice, Policy

The Fifth Circuit should reverse because Kacsmaryk ignored decades of policy, practice, and precedent establishing that minors can access reproductive health care confidentially, Summers said.

Requiring parental notification and consent contradicts Congress’ intent that family planning services be available to everyone, including teenagers who might be reluctant to seek it if required to tell their parents, she said.

Federal courts have recognized that intent, including the US Court of Appeals for the District of Columbia Circuit, which invalidated similar Reagan-era HHS regulations in 1983.

While minors’ rights have been the first target, threats to reproductive rights “are emerging at every level,” Summers said. “Keep an eye out for what happens next,” she said.

‘Cynical’ Position

That position is “cynical and dishonest,” said Ryan Bangert, senior vice president for strategic initiatives and special counsel at Alliance Defending Freedom, a conservative, Christian legal advocacy group.

The Title X case has no connection to Griswold—it’s solely about the fundamental, constitutional right of parents to direct their children’s upbringing, including making decisions about medical care, he said. ADF filed an amicus brief supporting the father’s position.

Kacsmaryk said that parents have a fundamental right under the 14th Amendment due process clause to direct the custody, control, and care of their children, which includes medical care. HHS unlawfully stepped on that right, he said.

‘Muddy’ Question

“The constitutional status of parental rights is a muddle,” and Kacsmaryk’s decision to apply strict scrutiny to the HHS regulation muddied the waters even more, Jeffrey Shulman, a visiting professor at Georgetown Law, said. Shulman is the author of “The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child.”

“A claim of parental rights doesn’t quite work, or should not work,” to protect parents from all government interference, Shulman said. The interests of the child “are always implicated; and in some cases the child has rights, too,” he said.

Parental rights are unenumerated—not set out in the text of the constitution. For these rights—including contraception and abortion—the Supreme Court has considered whether, read narrowly, the right is “deeply rooted” in the country’s history and tradition, Shulman said.

Kacsmaryk said that a parent’s right to consent to their child’s medical care met that test. But the US Court of Appeals for the Sixth Circuit recently rejected a similar argument in a gender-affirming care ban case.

Medical Cases Different

The gender-affirming care cases are very different, Bangert said. They involve medical treatments that states say is harmful, whereas the question here is whether the government can legally “keep parents in the dark” about their children’s care, he said.

The level of constitutional review will determine the outcome, Bangert said.

For “fundamental rights,” courts normally use strict scrutiny, which requires governments to show that they have compelling interests that require infringing on citizens’ rights. A lower level of review, known as rational basis, applies if the state has legitimate interests that will be served by the provision.

It’s a question of whether the government’s interest is important enough to justify an intrusion, Bangert said.

HHS’s interest in keeping parents’ ignorant about their children’s attempts to get birth control isn’t important enough to justify the confidentiality rule, Bangert said. A parent’s right to know “falls squarely” within the fundamental rights subject to strict scrutiny review, he said.

The Supreme Court is primed to define the scope of parental rights, Bangert said.

But Shulman doesn’t think the top court is “in a hurry to tackle” the due process question.

Other Issues

The Fifth Circuit has several other issues to consider in this case. For example, did the father have standing? He didn’t allege that any of his daughters had gone to a Title X clinic to get birth control, HHS said.

Alternatively, the appeals court could focus on HHS’ federal preemption argument or whether the judge properly vacated the rule, even though the father never argued that the agency had violated the Administrative Procedure Act in adopting it.

The arguments will be heard by Chief Judge Priscilla Richman and Judges Catharina Haynes and Stuart Kyle Duncan in New Orleans.

Jonathan F. Mitchell of Austin, a former Texas solicitor general, is expected to argue for the father, and Courtney Dixon of the US Justice Department is listed as counsel for HHS.

The case is Deanda v. Becerra, 5th Cir., No. 23-10159, oral arguments scheduled 11/6/23