HHS Birth Control Rule Unlawful, Federal Judge in Texas Says (2)

A federal judge in Texas has set aside a rule that prohibits federal family planning providers from telling parents about their children’s request for birth control and related services, at least for now.

The Health and Human Services Department’s rule governing its Title X program is contrary to constitutional rights and in excess of the HHS secretary’s statutory authority, Judge Matthew J. Kacsmaryk, of the US District Court for the Northern District of Texas, said in Tuesday’s final judgment.

But Kacsmaryk also agreed to consider HHS’ argument that the remedy doesn’t apply here. Setting aside an agency rule is a remedy for a rule that’s found to have been adopted in violation of the Administrative Procedure Act, it said.

Plaintiff Alexander Deanda never pleaded or proved the elements of an APA claim, and Kacsmaryk’s Dec. 8 opinion didn’t decide that issue, the government said. Deanda raised it only after winning summary judgment, it said.

Kacsmaryk gave the parties until Dec. 23 to brief the question and said he’d amend the judgment “if necesssary.”

While the judgment’s effect remains unclear, it appears that the US government officials who run the Title X program can’t mandate that providers protect minor clients’ confidentiality anywhere in the country, at least for now.

Additionally, although Deanda brought the case in 2020, the judgment only sets aside a part of Title X added in 2021 that requires program participants to maintain client confidentiality. It’s thus unclear if a pre-2021 provision in which HHS pushed—but didn’t require—providers to encourage family involvement when minors seek their services remains in effect.

An appeal is expected, according to attorneys familiar with the case.

Contraceptive rights advocates decried the judgment, while a critic of the rule said the court reached the right conclusion.

“This ruling threatens the health and lives of young people, who may be stripped of their ability to access the health care they need to build healthy lives,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement about the case.

“In a family planning setting, it is critical that adolescents have access to high-quality, confidential care from a provider who supports and respects their values,” the National Family Planning and Reproductive Health Association said in a statement condemning the judgment. This ruling seeks to dismantle that access, the group said.

But Ryan Bangert, senior vice president for strategic initiatives and special counsel to the president of Alliance Defending Freedom, told Bloomberg Law that “it’s an appropriate remedy because the court found the rule violates the citizen’s constitutional rights.”

Title X is the only federal program that provides money to family planning service providers that serve low-income people. HHS says program participants should encourage family involvement in birth control planning, but specifically forbids providers from seeking parental notification or consent for minors.

Kacsmaryk granted summary judgment Dec. 8 to Deanda, a Texas father who argued that HHS’s prohibition on parental notification violated his state and US Constitutional rights to direct his daughters’ upbringing, including a right to direct their medical care.

But the judge left open the scope of the remedy. Deanda argued Dec. 15 for a “universal” order setting aside the rule and forbidding its enforcement.

HHS had argued that the court’s remedy should be limited to an injunction requiring service providers to notify Deanda should one of his daughters request birth control in contravention of Christian teachings against sex outside of marriage.

The case could prompt further debate about the validity of “unenumerated rights,” as there’s no express right to either parental control or access to contraception in the US Constitution. The US Supreme Court, in Dobbs v. Jackson Women’s Health Organization—its decision striking the right to abortion—said it will recognize unenumerated rights only when they’re firmly rooted in the country’s tradition and history.

Kacsmaryk held that parental rights met that test, and that the government lacked a compelling reason for infringing Deanda’s rights. He also clarified in the judgment that he was rendering summary judgment for HHS on Deanda’s claim that the officials’ administration of the Title X program violates his rights under the Religious Freedom Restoration Act.

The final judgment also declares that HHS’ administration of the rule violates Deanda’s parental rights under Texas law and the US Constitution.

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

Jonathan Mitchell of Austin, Fillmore Law Firm LLP, D. Bryan Hughes of Tyler, Texas, and Underwood Law represent Deanda. The US Department of Justice represents the federal government defendants.

The case is Deanda v. Becerra, N.D. Tex., No. 20-cv-92, judgment entered 12/20/22.