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Parental-Notice Birth Control Case Seen as Step to End Right (1)

Dec. 22, 2022, 10:00 AMUpdated: Dec. 22, 2022, 2:38 PM

The war over reproductive rights is moving to a new front—access to contraceptives—with the opening salvo being fired by a Texas federal judge in a case involving a parent’s right to know when their child seeks family planning services from a federally funded provider.

Judge Matthew J. Kacsmaryk, of the US District Court for the Northern District of Texas, on Dec. 20 held invalid and set aside a 2021 US Health and Human Services Department provision that was intended to protect client confidentiality by preventing Title X program providers from telling minors’ parents when underage people come in for reproductive health-care counseling.

The final judgment is in effect for now, although Kacsmaryk ordered the parties to file briefs by Friday on whether he should amend the judgment setting aside the rule. The government argued that plaintiff Alexander Deanda wasn’t entitled to the Administrative Procedure Act remedy because he never argued or proved—and the judge didn’t find—an APA violation.

Kacsmaryk held earlier this month that the provision violates parental rights under state and federal law.

While that case is limited to minors, birth-control rights advocates say this won’t be the last one to try to restrict access to contraception. It’s part of “a coordinated campaign,” related to a “long-standing effort to control” reproductive health-care decision-making, said Robin Summers, vice-president and senior counsel at the National Family Planning & Reproductive Health Association.

“It’s not a one-off,” Summers said. Decisions like this one “build momentum and get replicated,” she said.

Kacsmaryk’s decision is “very concerning,” Summers said.

Concern Misplaced?

These concerns are misplaced, Ryan Bangert, senior vice president for strategic initiatives and special counsel to the president at Alliance Defending Freedom, told Bloomberg Law. Nothing in Kacsmaryk’s opinion presents a “threat” to contraceptive access. Reports that it does are “inaccurate,” he said.

The case turns mainly on a Texas law that gives parents the right to direct their children’s upbringing, including their medical care. It’s well-reasoned and narrowly decided, reaching a result that most parents undoubtedly would agree with, Bangert said. Kacsmaryk didn’t say Title X grantees can’t prescribe contraceptives for minors—only that they must get parents’ permission before doing so, he said.

The judge also made it clear that the federal regulation doesn’t displace Texas’ state law-created right, Bangert said.

Additionally, Kacsmaryk recognized that the US Constitution provides for parental rights through the 14th Amendment’s due process clause, Bangert said. While these rights aren’t enumerated in the controlling federal document, they’re deeply rooted in the country’s history and tradition, and there’s nothing controversial about Kacsmaryk’s decision recognizing them, he said.

The “sky isn’t falling,” Bangert said.

Jonathan Mitchell, the Austin attorney who represents Deanda, didn’t immediately respond to Bloomberg Law’s request for comment.

Title X

At the core of the case is Title X, the only federal program that provides money for family planning services for low-income people. Established in the early 1970s, the program has an annual budget of about $286.5 million, according to HHS’ Office of Population Affairs. About 1.7 million people receive services from Title X grantees each year, and the majority are low-income, the agency said.

Deanda, who filed his class action complaint as the father of three under-age daughters in 2020, initially objected to a regulation that required providers to encourage family participation in their programs, but was silent as to parental notification and consent. He amended the complaint in 2021, after HHS added a sentence that affirmatively prohibited providers from notifying parents or guardians when minors seek their services.

Kacsmaryk’s order affects only the second sentence. The judge denied class certification in March.

Carrie Flaxman, senior director for public policy litigation and law at Planned Parenthood Federation of America, told Bloomberg Law that the case is an example of how reproductive rights opponents are targeting birth control.

They’re going after contraceptive access the same way they went after abortion, with the goal of overturning Griswold v. Connecticut, just like they did with Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, Flaxman said. In Griswold, the US Supreme Court held that there’s a right to contraception grounded in the 14th Amendment’s right to privacy.

Dobbs “provides a blueprint for overturning” Griswold, Summers said. By holding that a right to abortion can’t be inferred because it isn’t deeply rooted in the nation’s history and tradition, the top court made it clear that courts can justify recognizing some unenumerated rights, but not others.

Additionally, as Kacsmaryk pointed out in a footnote—Justice Clarence Thomas in his concurring opinion in Dobbs, put Griswold at the top of his list of cases to be reconsidered using the same reasoning.

Kacsmaryk’s decision, moreover, “eviscerates” the confidentiality that Congress and the US Court of Appeals for the D.C. Circuit have recognized as critical to the program’s success, Summers said.

In 1983, the D.C. Circuit in Planned Parenthood Federation of America v. Heckler invalidated Reagan-era HHS regulations that required Title X providers to tell parents or guardians when they prescribed contraceptives for minors and to comply with state laws regarding parental notification and consent. The regulations were “fundamentally inconsistent with Congress’ intent and purpose in enacting Title X,” the court said.

Looking Ahead

Kacsmaryk said in a follow-up order that he’ll consider amending the judgment based on the government’s argument that setting aside the rule for violating the APA wasn’t a proper remedy.

But even if the final judgment stands as written, it’s not clear exactly what it means. It may simply roll back the provision to its prior form, in which HHS encouraged but didn’t require providers to urge clients to involve their families, though Deanda originally challenged that provision.

Nothing in the judgment requires HHS to stop funding providers who refuse to notify parents or to make parental notification a condition of participation. Providers, however, could face litigation by parents trying to enforce their rights.

An appeal is expected, the attorneys interviewed for this article said. The Department of Justice declined to comment, and HHS didn’t respond to Bloomberg Law’s request for comment.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

(Updates to add new third paragraph and language in last section to the effect that judge is considering amending the final judgment.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com