The Title X family planning program has defended against a complex web of attacks on standard, essential health services throughout its history.
Minor Consent for Contraception
Minor consent for contraceptive services is an emerging battleground with very high stakes, for young people and for the right to contraception itself.
Texas Parental Consent Cases
Deanda v. Becerra
In December 2022, US District Court Judge Matthew Kacsmaryk ruled that the US Department of Health and Human Services's (HHS) administration of the Title X program “violates the [federal] constitutional right of parents to direct the upbringing of their children” and a Texas state law requiring parental consent for contraception.
The case was originally brought in April 2020 by a Texas resident who alleged that his rights as a parent were being violated by Title X in that if any of his three minor daughters sought services from a Title X-funded health center, the Title X project would not seek or obtain parental consent before dispensing prescription contraception and other family planning services. There was no evidence that any of the plaintiff’s daughters had sought and/or received services from any Title X-funded health center or that they would in the future.
The district court ruling in favor of the plaintiff came despite decades of legal precedent protecting the right of adolescents to access contraception in Title X without parental consent or notification. The final judgment issued in the case additionally held as “unlawful” a provision of the 2021 Title X regulation pertaining to parental involvement.
HHS appealed to the US Court of Appeals for the Fifth Circuit. NFPRHA submitted an amicus brief to the Fifth Circuit in support of HHS and upholding Title X’s longstanding prohibition on parental consent.
On March 13, 2024, a three-judge panel of the Fifth Circuit issued its ruling, affirming in part and reversing in part the district court ruling. The Fifth Circuit upheld the portion of the district court ruling that Title X’s statute does not preempt Texas’s state parental consent law. But the ruling reversed the district court’s holding § 59.10(b) of the 2021 Title X regulation as unlawful under the Administrative Procedure Act (APA), because the issue had not been raised or briefed previously (the 2021 rule was proposed and finalized after the lawsuit was originally filed).
The Fifth Circuit did not reach the district court ruling’s holding that Title X violates a parent’s federal constitutional right to direct their children’s upbringing.
The case was not appealed beyond the Fifth Circuit.
On March 22, 2024, HHS issued a Program Policy Notice (PPN) to Title X grantees about the Fifth Circuit ruling. The PPN summarized the ruling and stated that the Office of Population Affairs (OPA) will not enforce § 59.10(b) of the 2021 Title X regulation in Texas once that section of the rule is back in effect. The PPN also that OPA would not enforce that section of the regulation in the other Fifth Circuit states (Mississippi and Louisiana) “to the extent it conflicts with state law.” No such conflicting state laws are currently on the books in either state, though both states’ legislatures are considering it.
Texas v. Becerra
On July 25, 2024, Texas Attorney General Ken Paxton filed a lawsuit seeking to have the parental consent prohibition in the 2021 Title X rule vacated for the whole country.
Texas v. Becerra alleges that the parental consent prohibition injures Texas, despite the fact that parental consent is already being required in Texas in Title X health centers because of the Deanda rulings, meaning the 2021 Title X rule being in place presents no “injury” to Texas, and despite the fact that Texas’s parental consent statute only applies in Texas.
Paxton is seeking to not only block the parental consent prohibition in the Title X rule nationwide, but is also seeking to permanently enjoin (block) HHS from funding any Title X project in Texas that fails to comply with the state’s parental-consent laws, or from funding "any Title X project that fails to comply with the parental consent or parental-notification laws of any other state." This seems designed to try and force Texas's parental consent law on all Title X projects across the country.
The case is in the early stages of briefing.
Challenge to 2021 Title X Regulation
Ohio v. Becerra
In October 2021, Ohio and 11 other states (Alabama, Arizona, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia; Arizona has since withdrawn from the case) sued the Biden administration over the 2021 Title X rule, which had rescinded and replaced the devastating 2019 Title X rule. The plaintiff states specifically challenged the regulation’s abortion referral requirement and program integrity (separation between Title X and abortion care) requirements.
The district court denied the plaintiff states' request for a preliminary injunction (PI) in December 2021. The states appealed to the US Court of Appeals for the Sixth Circuit.
On November 30, 2023, a three-judge panel of the Sixth Circuit ruled upheld the 2021 Title X rule’s abortion referral requirement, stating that under the precedent of Rust v. Sullivan and the principle of Chevron deference “we cannot say that the 2021 Rule’s referral requirement is an impermissible interpretation of §1008.”
The panel also held, however, that the 2021 rule’s program integrity requirements (financial and physical separation) are not a permissible interpretation of §1008, but the panel limited relief to the state of Ohio because “only Ohio made the requisite showing of irreparable harm.”
The PI granted to OH was further limited to “enjoining the United States from enforcing the 2021 Rule’s program integrity rules in Ohio in a manner that would affect the allocation of funding in Ohio.”
The case is now back in the district court for consideration on the merits (the merits stage had been on hold for the duration of the injunction stage).
NFPRHA filed amicus briefs in both the district court and Sixth Circuit in support of the 2021 Title X rule and urging the courts to deny a preliminary injunction.
Though not currently engaged in legal action, NFPRHA recently fought in court to prevent irreparable harm to the Title X program, NFPRHA’s members, and the millions of patients they serve each year. Information about those cases can be found here.