How Texas teens lost the one program that allowed birth control without parental consent

Various birth control pills available at a Planned Parenthood in Austin. (Todd Wiseman/The Texas Tribune, Todd Wiseman/The Texas Tribune)

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Teenagers come to Access Esperanza’s family planning clinics in the Rio Grande Valley for birth control. They leave with a full reproductive life plan.

Appointments often run close to two hours, CEO Patricio Gonzalez said, as they counsel teens on everything from contraception and sexually-transmitted infections, to healthy relationships, consent, and the client’s hopes and dreams.

In a state that doesn’t require sex education, this is often the first time teens have thought about how reproductive health decisions can impact their future plans, Gonzalez said.

Access Esperanza encourages teens to involve their parents in these conversations. For some, this is an easy ask. For others, it’s an immediate non-starter.

“You just see their shoulders slump and we know this is someone who doesn’t feel they can talk to their mom and dad about this topic,” Gonzalez said. “Some parents want to pretend it isn’t happening. We’ve seen parents get violent when their child talks about being sexually active.”

Texas is in the minority of states that requires parental consent before a teenager can get birth control, in virtually all circumstances. But there’s long been one exception to that rule: the federal Title X program, which provides confidential contraception regardless of age, income or immigration status.

This program has been a “lifeline” for teens in the Rio Grande Valley, Gonzalez said.

But no more.

In 2022, a federal judge in Amarillo ruled the Title X program violated Texas parents’ rights. Last month, the 5th U.S. Circuit Court of Appeals upheld that decision.

Now, unlike in the other 49 states, Texas’ 156 Title X clinics must require parental consent for teens. It’s a radical rewriting of a long-standing federal program, and a huge shift for the clinics and the clients they serve.

“Our numbers have dropped,” Gonzalez said. “When [teens] see a negative change in the program, they tend to stay away. And they spread the word.”

The Deanda lawsuit

Four years ago this month, a lawsuit was filed in Amarillo, a Panhandle city almost 800 miles from the Rio Grande Valley.

A man named Alexander Deanda argued the Title X program violated his parental rights, as enshrined in Texas law, to consent to his teenage daughters’ medical care. Deanda does not say his daughters went to a Title X clinic or got birth control without his knowledge, but that there was a risk they would as long as this program remained in effect in Texas.

Deanda is represented by Jonathan Mitchell, the former solicitor general of Texas, best known for designing Senate Bill 8, a novel state law banning abortion after about six weeks of pregnancy through private lawsuits.

Mitchell has since filed dozens of controversial lawsuits advancing conservative causes, from ending affirmative action to Texas’ first wrongful death lawsuit for allegedly abetting an illegal abortion. He recently successfully argued at the U.S. Supreme Court that former President Donald Trump should remain on the primary ballot in Colorado.

Mitchell files many of his suits in Amarillo, where almost all federal cases are heard by one man — U.S. District Judge Matthew Kacsmaryk. Before Trump appointed him to the federal bench in 2019, Kacsmaryk was a stalwart of the conservative Christian legal movement, litigating cases involving abortion and contraception access.

Mitchell declined to comment and declined to make his client available. But in the original lawsuit, Mitchell explained that Deanda was “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.”

Deanda argued that he had a right under state law to decide whether his daughters were prescribed contraception. In Texas, minors must get parental consent for most medical care, unless the teen is emancipated or in the military. Even teenage parents, who can consent to medical care for their children, must get their parents’ approval for their own medical care, including birth control.

For decades, one exception to this rule was the federal Title X program. Created during the Nixon administration, Title X was designed to help anyone, regardless of age, income or immigration status, access contraception without barriers.

Federal courts have repeatedly ruled that Title X clinics cannot require teens to get parental consent. The regulation says clinics should “encourage family participation … to the extent practical.”

In the Deanda lawsuit, Mitchell argued that encouraging family participation represents the “floor,” the minimum a clinic must do to comply with regulations. The U.S. Department of Health and Human Services argued that it is, instead, the “ceiling”: The most a clinic can do is encourage family participation, so requiring consent would be a violation.

“If Congress had intended to require parental consent, it would have stated such a requirement in Title X,” as it does in certain other programs, the federal government wrote in a reply brief. “Instead, Congress chose to require no more of Title X entities than to encourage family participation, to the extent practical.”

Kacsmaryk disagreed.

“Although other courts have held Title X ‘preempts’ state-imposed parental-notification and consent requirements, the Court finds those authorities unpersuasive,” Kacsmaryk wrote. He ruled that Title X clinics “must encourage (under federal law) family participation and obtain (under Texas law) parental consent.”

The ruling came just a few days before Christmas 2022. Title X providers like Family Circle of Care, a federally qualified health center in Tyler, in northeast Texas, had to scramble to ensure they were in compliance with the new interpretation of the law.

“We were making calls [to teenagers] saying, ‘There’s been this change. I know you’re scheduled to get your depo [Depo-Provera] shot this afternoon, but I’ve got to get written consent from your parents now,’” chief medical officer Dr. Josephine Porter said, referring to the three-month contraceptive that is injected. “It’s already a logistical nightmare to try to track down a teenager.”

Family Circle of Care has always emphasized parental involvement, Porter said. She counsels teens on how to broach the subject with their parents, and once they are all in the exam room together, she helps mediate the tense moments these conversations bring up for everyone.

“Nobody wants this kid getting pregnant, and we all want them to be healthy and happy. That’s the framework we use to get parents on board who might be hesitant,” Porter said. “And we tell the kids, your parents are just concerned about you, and want to keep you safe.”

But as Deanda’s stance makes clear, not all parents are open to the idea of their child getting birth control. Some teens take the newly created consent form and never show back up, Porter said. Others just pocket condoms and whatever education Porter can arm them with during the appointment. She worries most about the clients who never show up at all, knowing they won’t be able to get their parents’ permission.

“Those are the ones that tend to be invisible to the health care system, until they show up pregnant or with an STD,” she said.

Project Vida, a federally qualified health center in El Paso, has seen a 50% drop in teens making appointments for contraception, chief medical Dr. Luis Garza said. Birth control appointments can be a critical entry point to the health care system for teens, where they can get screened for sexually transmitted diseases and discuss mental health issues and primary care needs.

“They’re scared to even come in because they think their parents are going to find out, and they’re missing out on a lot because of that,” Garza said.

In 2021, Texas banned abortion after about six weeks of pregnancy. As a result, the teen pregnancy rate rose for the first time in decades. The 2022 near-total ban on abortion, as well as restricting access to contraception, are expected to accelerate the increase.

“Unwanted teenage pregnancies are going to lead to people dropping out of school, single parent homes, and then the strain that it puts on the health care system,” Garza said. “The pregnant woman has to get on Medicaid, the kids’ going to be on Medicaid, that’s a lot of Medicaid dollars that could have been prevented.”

5th Circuit ruling

Last February, the federal government appealed Kacsmaryk’s ruling to the 5th U.S. Circuit Court of Appeals in New Orleans. The court, which hears cases from Texas, Louisiana and Mississippi, is considered one of, if not the, most conservative appellate courts in the country.

The case was heard by a three-judge panel, including Trump-appointed Judge Stuart Kyle Duncan, who called Title X a “destruction” of parental rights during arguments.

The other two judges, both appointed by President George W. Bush, agreed with Duncan’s assessment. The panel ruled that Title X clinics in Texas can — and, in fact, must — comply with both the federal regulation and Texas’ parental consent requirements.

“As Deanda argues, Title X establishes a ‘floor’ for grantees’ participation (encouraging family participation), and Texas law establishes a specific means of achieving that goal (obtaining parents’ consent),” Duncan wrote in the ruling. “So, far from undermining Title X’s purposes, Texas law concretely furthers them.”

The ruling focused entirely on the question of state versus federal law, leaving aside Kacsmaryk’s ruling that Title X violated Deanda’s 14th Amendment rights under the U.S. Constitution.

The panel did disagree with Kacsmaryk on one point: His ruling vacated part of a 2021 HHS rule that forbade Title X providers from requiring parental consent. Because that rule came down after the lawsuit was filed and was not addressed in Deanda’s original complaint, the appeals court said Kacsmaryk should not have weighed in on it.

“This isn’t the end all, be all, because at some point, the courts are going to have to clarify that,” said Lucie Arvallo, executive director of Jane’s Due Process, a teen-focused reproductive rights group and abortion fund. “So the fight isn’t over.”

HHS did not respond to a request for comment. The feds could ask for a rehearing before the entire 5th Circuit or appeal to the U.S. Supreme Court, but with conservative majorities on both courts, either option is potentially risky, said Joanna Grossman, a professor at SMU Dedman School of Law.

“The danger of putting it in front of the Supreme Court is their anti-agency, anti-federal government attitude right now,” Grossman said. “I would hate for this to get caught up in that somehow.”

As of now, the ruling remains in effect, leaving Texas clinics operating under a different set of rules than their peers in the rest of the country. While providers hope to be able to go back to the way things were, many of them worry the tide may move in the opposite direction.

“This is setting a terrible legal precedent. Other states may be emboldened and follow suit,” Garza said. “And who knows, they may be going after emergency contraception next, and then they may be going after birth control in general.”

Where things stand now

When the 5th Circuit issued its ruling last month, Jane’s Due Process got a surge of texts to its helpline as teens scrambled to understand what the latest news meant for their access to health care.

This happens after every major court ruling, Arvallo said, and while she wishes things were less confusing, she’s thrilled when teens reach out.

“We worry about the folks who read a headline and it creates an immediate chilling effect where they no longer ask these kinds of questions, because they just assume they no longer have the right to birth control in the state of Texas,” she said.

Arvallo said they are trying to get the word out about what these changes mean, and what contraception teens can still access without parental consent, including condoms and emergency contraception. The Food and Drug Administration recently approved the first over-the-counter oral contraception, which has no age restriction. Marketed under the name Opill, it is being sold at major pharmacies nationwide, including Texas.

“Doing this work, you see that once you trust young people with the information they need to make the relevant decisions about their bodies and lives, they are fully equipped and capable to do that,” Arvallo said. “Really what they need is just a trusting space to be able to receive that information so that they can make informed decisions about what's best for them.”

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