No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 08 May 2025
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.
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).
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.
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).
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.
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).
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).