Earlier this month, the 5th Circuit Court of Appeals upheld a Texas law that requires parental consent for minors to obtain contraception.
A three-judge panel affirmed a 2022 ruling from the U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, that stopped one of the only ways for teens and adolescents in the state to have access to birth control, in confidence, via federally funded clinics under Title X. Since 1970, Title X has provided free birth control to anyone across the country regardless of age, immigration status or income. First created with bipartisan support during the Nixon administration, Title X has now become a target from anti-abortion advocates.
In 2019, the Trump administration implemented a new rule that forced some Planned Parenthood clinics to drop out of the program (the rule was later reversed by the Biden Administration). But the 5th Circuit’s ruling upheld a Texas law that requires parental consent, which many said was in conflict with the goals of the federally-funded Title X program that guaranteed privacy to minors. While Texas law requires minors to get parental permission, Title X clinics were previously exempt from that law.
“Adolescents in Texas really can't get services without parental permission, even in Title X clinics that are federally funded,” Dr. Cynthia Harper, a professor in the Obstetrics, Gynecology and Reproductive Sciences department at the University of California-San Francisco, told Salon. “You can see that sets up a direct conflict between the federal and the state.”
When it comes to Title X clinics, Harper emphasized that most adolescents are encouraged to have discussions with their parents— but there’s a difference between requiring it, and helping make it happen.
If the 5th Circuit and Judge Kacsmaryk sound familiar, it’s because it’s a similar trajectory that the case Alliance for Hippocratic Medicine v. FDA, which concerns the abortion drug mifepristone, has taken. As one source warned to the Texas Tribune, if this case were to escalate to the U.S. Supreme Court, and the 5th Circuit’s ruling was upheld, it could eventually restrict access to birth control to adolescents and teens nationwide.
“The concern is that the Supreme Court really has their own ideas on issues of reproductive rights that don't align with everyone's in the country and that they would take the opportunity to restrict access to contraception for adolescents if they had a case before them,” Harper said. “And I think people are right to be concerned about that.”
Certainly access to contraception is on the minds of many people. After Alabama’s state Supreme Court ruled that frozen embryos were “extrauterine children” putting the practice of IVF in jeopardy in the state, Hillary Clinton shared her thoughts in a post on X, formerly known as Twitter. “They came for abortion first,” Clinton said. “Now it’s IVF, and next it’ll be birth control.”
When asked how vulnerable access to contraception is in the United States right now, Harper said her response today is different from what her response would have been before Dobbs.
“As we've seen, there is a lot of eagerness, politically and legally, to restrict reproductive rights,” Harper said. How far politicians will get remains unknown, but the Supreme Court could be a pathway to that.
Brigitte Amiri, deputy director of ACLU's Reproductive Freedom Project, told Salon that the “alarm bells” people are sounding are warranted. However, she emphasized that while the Texas case could go to the Supreme Court, that the case itself is an outlier.
“This is the only court that has found that the Title X statute does not protect confidentiality of access for minors,” Amiri said. “All other courts that have considered the question have found unanimously that contraception access for minors and the Title X program must be protected.”
She added that the potential effect could be limited because it’s a question of Texas state law, and no other states require parental consent for medical care. As explained by Guttmacher Institute, the last few decades states have expanded minors’ ability to consent to health care themselves. A trend reflecting the 1977 U.S. Supreme Court ruling in Carey v. Population Services International that affirmed the constitutional right to privacy for a minor to obtain contraceptives.
But the question in the Texas case will ultimately be whether state or federal law should be followed when it comes to parental consent for contraception access. Amiri said there are a number of states that could require parental consent to access birth control and could pass them in the near future, which could restrict access to birth control to minors in some states.
“I think that we are seeing the beginning of the campaign from the other side to eliminate access to birth control, and one of the first stepping stones that they are taking is minors' access to contraception,” Amiri said. “It is not the only avenue in which they are seeking to destroy access to contraception, but it is one of the primary focuses of the other side right now.”
Amiri said she is concerned that the Texas case is part of the campaign in “a coordinated effort” to get a case to the Supreme Court and have them overturn the right to privacy for contraception for minors — just as they did for access to abortions by overturning Roe v. Wade.
Notably, this comes at a time when over-the-counter birth control is available for the first time in the United States. Anyone, regardless of age, can buy it. Amiri said her first thought was that this option will be a “lifeline” to adolescents in Texas.
“They'll be able to walk into a pharmacy to get birth control and that's huge,” Amiri said. “This is one of the places where this is tremendous progress, and could be a game changer, but it's not to say that it means that we don't need the other forms of prescription contraception available and accessible to everybody, including minors.”
