BY Beth Anne Jackson, Brown & Fortunato
In a recent opinion and judgment, U.S. District Judge David Kacsmaryk declared that the United States Department of Health and Human Services (HHS) rule prohibiting clinics funded through Title X of the Public Health Service Act (Title X) from requiring parental consent or notice for the provision of services to minors was unlawful. Title X services include not only contraceptive services, but also sexually transmitted infection (STI) testing and treatment, basic infertility services, preconception health services, and related preventive services (breast and cervical cancer screenings). However, the case at issue, Deanda v. Becerra, was limited to contraceptive services. (All states have provisions that allow minors to consent to testing and treatment for STIs.) This ruling could have significant implications for adolescent health and result in an increase in teen pregnancies, specifically those with low incomes who rely on Title X-funded clinics for services.
Congress amended Title X in 1981 to require clinics “to the extent possible . . . encourage family participation” in Title X projects. In October of 2021, the Office of Population Affairs (OPA) in HHS revised the relevant regulations to clarify that, while encouraging family participation, Title X-funded entities “may not require consent of parents . . . for the provision of services to minors.” This regulation formalized OPA’s longstanding policy. The plaintiff, Deanda, a father of three daughters, sought summary judgment against this prohibition on the basis that it impeded both his statutory right under the Texas Family Code to consent to his child’s medical care and treatment, his parental rights under the U.S. Constitution, and his right to raise his children according to his Christian values. Plaintiff sought to have the Court declare that the parental consent provisions of the Texas Family Code apply to all Title X grantees in Texas and, further, enjoin HHS from funding any Title X grantees that violate those consent provisions.
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In its final judgment, the Court declared that HHS’s administration of the Title X program not only violates the parental consent provisions of the Texas Family Code, but also the plaintiff’s “fundamental right to control and direct the upbringing of his minor children, which is protected by the Due Process Clause of the Fourteenth Amendment, as protected by the Supreme Court of the United States.” The Court also stated that it “holds unlawful and sets aside” the rule’s prohibition on requiring parental consent because it, among other things, exceeds the statutory authority of HHS.
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This last holding is a remedy available under the Administrative Procedure Act (APA). HHS, therefore, filed a motion to strike, objecting to this remedy because the plaintiff never plead for or requested relief of an APA claim. However, after having the parties brief the issues, the Court subsequently rejected the motion to strike and maintained the final judgment without alteration.
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At this time, the ultimate effect of the Court’s decision is unknown because the final judgment did not address the scope of the judgment and no injunction was issued. Several legal considerations are at issue here. First, multiple courts have previously recognized and upheld adolescents’ right to access health services related to reproductive health services (other than abortions), leaving this decision in conflict with others involving parental rights in the context of a voluntary governmental program. Second, plaintiff relied heavily on rights granted by a Texas statute, limiting the ruling to Title X clinics in Texas given the Court’s jurisdiction. Third, plaintiff is not a “class” representative, which means that the ruling could be limited to an individually tailored remedy on appeal because plaintiff has not demonstrated to a court that other parents face similar damages. Fourth, in setting aside that portion of the regulation that prohibits requiring parental consent for Title X services, the Court relied on a right unenumerated in the Constitution. In the Dobbs decision that overturned Roe v. Wade, Justice Samuel Alito stated that unenumerated rights are those “deeply rooted in the Nation’s history and tradition.” Will parental rights to consent to adolescents’ access to contraception pass muster on this test?
For health care professionals, this decision raises significant public health concerns, because it is almost certain to result in an increase in the number of teen pregnancies in Texas. Because Title X services low-income families, it will also have a disproportional impact on those teens most at risk (according to Healthy Futures of Texas): “Hispanic and Black youth; those residing in rural areas; those who have experienced trauma and/or have foster system involvement; and youth who have already had an unintended pregnancy.” Title X providers are in a vulnerable state, as is the population they serve. Everybody Texas, which administers Title X funding in Texas, is advising its Title X sub-recipients to require parental consent for contraceptive services. An HHS appeal is anticipated.