Fifth Circuit Decision Granting Texas Parents a Right to Veto Federal Access to Contraception is a Hot Mess

[In It to Win It]

Dorf on Law

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit (mostly) affirmed yet another ruling against the Biden administration issued by Federal District Judge Matthew Kacsmaryk--who is probably best known for his decision invalidating the long-ago FDA approval of the abortion pill mifepristone. In Tuesday's ruling in Deanda v. Becerra, a panel of the Fifth Circuit upheld a decision by Judge Kacsmaryk obligating federally-funded Title X clinics to comply with a Texas law that gives parents veto power over their minor children's access to contraception, notwithstanding the federal government's argument that Title X pre-empts the state law.

In today's essay I don't directly address the Fifth Circuit's substantive conclusion. Rather, I'll delve into a number of oddities and procedural puzzles that call into question both the court's decision to reach the merits and the implications of the ruling going forward.

The Texas law at issue isn't specific to contraception. It grants to parents of a minor child "the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment." Contraception is medical care. Thus, the state law does appear to give the plaintiff Alexander Deanda a right to block his minor daughter's access to contraception. (According to the Fifth Circuit panel, Deanda originally sued in his capacity as father of three minor daughters, but only one remains a minor.)

As an initial matter, the Texas law could well be unconstitutional. In Carey v. Population Services, Inc. (1977), SCOTUS held that minors have a constitutional right to contraception. Meanwhile, in various post-Roe cases, the Court held that parents cannot be given blanket control over their minor children's access to abortion; a parental consent or even a parental notification law for minors seeking abortions was valid only with a judicial bypass. Presumably that would also be true of contraception, as some lower courts held. And because Dobbs purported to preserve the right to contraception, there remains a strong argument that state laws requiring parental consent for contraception are unconstitutional unless they provide for a judicial bypass. If that's so, then one never even gets to the pre-emption question because the Texas law, which does not include a judicial bypass, is simply invalid as applied to block minors' access to contraception.

But no one seems to have made that argument, so I'll set it aside for now.

Link to tweet

[jmowreader]

1. Whoever wrote this law never had a minor child try to enlist

I enlisted at 17. I had to have consent from both parents to do it - by federal law.

[UTUSN]

2. K&R

[B.See]

3. Like every other MAGA false flag issue

including trans people in sports and bathrooms, drag queen story time, critical race theory, dei, so called voter fraud, and other bullshit issues, this case is just another cover for a greater objective: the complete elimination of contraceptives.

Arizona Republicans Refuse To Even Consider Basic Birth Control Protections -Huffpost