Title X Parental Consent for Contraceptive Services Litigation: Overview and Initial Observations (Part 1 of 2)

Title X Parental Consent for Contraceptive Services Litigation: Overview and Initial Observations (Part 1 of 2)

Legal Sidebari

Title X Parental Consent for Contraceptive
Services Litigation: Overview and Initial
Observations (Part 1 of 2)
February 10, 2023
Enacted in 1970, the Title X Family Planning Program (Title X) is a federal program that provides grants
to public and nonprofit agencies to deliver family planning and related preventive health services. The
Program directs grantees to furnish such services in a manner that prioritizes low-income individuals,
with reduced or no cost to such individuals. At more than 3,000 service sites, Title X projects offer a
range of clinical services including pregnancy testing and counseling, contraceptive services and
counseling, basic infertility services, breast and cervical cancer screening, services related to sexually
transmitted infection (STI), and adolescent-friendly health services. 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. Consistent with this case law,
current Department of Health and Human Services (HHS) regulations codified at 42 C.F.R. § 59.10(b)
prohibit Title X projects from requiring parental consent and notification for services provided to minors.
In December 2022, however, the U.S. District Court for the Northern District of Texas issued an order in
Deanda v. Becerra, ruling in favor of a parent who challenged Title X’s parental consent and notification
prohibition, objecting on religious grounds to his daughters’ access to prescription contraception and other
family planning services. The district court held that Title X’s prohibition infringes upon the plaintiff’s
statutory right to parental consent under Texas law as well as his fundamental parental right under the
U.S. Constitution to direct the upbringing of his children. Based on this conclusion, the court set aside the
relevant portion of § 59.10(b). The court’s constitutional ruling has potentially broad implications beyond
Title X.
This two-part Sidebar series provides an overview of this litigation. Part 1 provides an overview of the
relevant legal background. Part 2 provides a summary of the district court’s order, as well as certain
preliminary observations for Congress’s consideration.
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Legal Background
State Law on Parental Consent
In the United States, the right of parents and guardians to consent to health care services for their minor
children is primarily governed by state law. The default rule that parents have the legal authority to
consent on behalf of their children evolved initially through the common law. Over time, however, many
states have enacted various statutory exceptions to the default rule. The exceptions vary from state to state
but generally fall within two categories: (1) laws that permit certain categories of minors, such as those
who are emancipated, married, or above a certain age, to consent to medical services; and (2) laws that
permit minors—or minors above a certain age—to consent to certain types of medical services, such as
services related to substance abuse, mental health, STIs and other infectious diseases, and contraceptive
and other reproductive health services.
Constitutional Dimensions of Parental Consent
As an aspect of parents’ broader authority over their children’s welfare, parents’ right to consent to their
children’s medical care also has constitutional dimensions. In the early twentieth century, the Supreme
Court twice struck down certain state laws as “unreasonably interfer[ing] with the liberty of parents and
guardians to direct the upbringing and education of children under their control” under the Fourteenth
Amendment’s Due Process Clause. In Meyer v. Nebraska, the Court struck down a state law that
prohibited schools from teaching any language other than English to grade school children. In Pierce v.
Society of Sisters, the Court struck down an Oregon law that required parents and guardians in the state to
send children between the ages of eight and sixteen to public schools. About two decades later, however,
the Court, in Prince v. Massachusetts, upheld a state law that prohibited minors from selling merchandise
in the streets. In so holding, and over the objections of the plaintiff parents who wanted their minor
children to sell religious literature, the Court recognized that the state “has a wide range of power for
limiting parental freedom and authority in things affecting the child’s welfare.”
Over the next few decades, the Supreme Court continued to develop and recognize, in disparate lines of
cases, certain fundamental, substantive rights under the Due Process Clause that warrant heightened
protection. However, even as the Court reiterated parents’ “fundamental liberty interest in the care,
custody, and management of their children” as a substantive right in the modern era, the Court has notably
avoided articulating a uniform standard that applies to claims alleging an infringement of this right. In
Parham v. J.R., for example, the Court upheld a state’s voluntary civil commitment procedures that
allowed minors to be committed to state psychiatric hospitals by their parents without an adversarial
hearing before an impartial tribunal. The Court so concluded after balancing the specific competing
interests at issue, including the child’s liberty interest, the parents’ interest to decide, and the state’s
interests in the child’s welfare and the efficient administration of its mental health facilities.
More recently in Troxel v. Granville, the Court, in a plurality opinion, invalidated a state law that
authorized state courts to award more visitation to two children’s grandparents against the wishes of the
sole surviving parent. While a majority of justices agreed that parents have a fundamental right over the
care, custody, and management of their children, no majority agreed on whether or to what extent the state
law infringed upon such a right, or what standard to apply in such an analysis. In fact, as Justice Clarence
Thomas observed in his concurrence, several of the accompanying opinions—including the plurality
opinion—“curiously [did not] articulate[] the appropriate standard of review.”
As a result of this lack of guidance, lower courts have applied different standards in different
circumstances that implicate the parental right in the care, custody, and control of their children. In some
cases—for example, those involving certain challenges to a school’s mandatory uniform policy or

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community service requirement—courts applied rational basis review, the most lenient form of review. In
other cases—for example, in several cases involving local juvenile curfew laws—courts applied
intermediate or strict scrutiny. In still other instances, including cases involving local health clinics
providing contraceptives to minors without parental notification, courts have applied a context-specific
balancing test, consistent with the Court’s approach in Parham. In those cases, the Sixth Circuit and the
Third Circuit applied a balancing test that weighed the relevant competing interests, including that of the
parent, the minor, and the government, as well as the nature of the government’s intrusion, to conclude
that the practice did not unconstitutionally infringe upon the parents’ rights.
Federal Law on Parental Consent
Layered within the patchwork of state laws allowing unilateral minor consent to varying degrees and the
uncertain constitutional scope of the right of parental consent are various federal laws that address the
issue through different approaches. Some, like the Health Insurance Portability and Accountability Act
(HIPPA) and its implementing regulations, expressly incorporate relevant state laws on minor consent. At
least one federal grant program, the Student Support and Academic Enrichment Grants, specifically
defines certain parental consent requirements that grant recipients must implement when providing
school-based mental-health assessments or services.
Title X’s Prohibition on Parental Consent and Notification
Title X, as amended, does not specifically address consent requirements for services funded by the
Program. Instead, 42 U.S.C. § 300(a) authorizes the HHS Secretary to “make grants . . . with public or
nonprofit private entities to assist in the establishment and operation of voluntary family planning projects
which shall offer a broad range of acceptable and effective family planning methods and services
(including natural family planning methods, infertility services, and services for adolescents).” The statute
further instructs that “[t]o the extent practical, entities which receive grants or contracts under this
subsection shall encourage family participation in projects assisted under this subsection.” Congress
added this additional instruction in 1981, after amending the statute in 1978 to specifically include
“services for adolescents.” Congress further provided that Title X grants and contracts “shall be made in
accordance with such regulations as the Secretary may promulgate.”
In 1983, HHS promulgated a final rule that sought to implement the statutory directive to encourage
family participation by imposing certain parental notification and consent requirements for adolescent
services. The rule, among other requirements, directed Title X grantees to notify (with limited exceptions)
a parent or guardian within 10 working days of initially prescribing contraceptive services and to comply
with any state parental notification or consent laws related to the provision of family services. Several
plaintiffs—including certain Title X grantees and the state of New York—challenged the final rule. Later
that year, both the D.C. Circuit, in Planned Parenthood Federation of America, Inc. v. Heckler, and the
Second Circuit, in New York v. Heckler, ruled in favor of the plaintiffs and enjoined the final rule as
exceeding the Secretary’s statutory authority.
According to these courts, the text and legislative history of the 1981 amendments unambiguously evince
an intent not to require family involvement but merely to encourage it. Moreover, in the courts’ view, in
encouraging family participation only “to the extent practical,” Congress intended to maintain the
longstanding administrative practice of maintaining teenage confidentiality, recognizing that
confidentiality was a crucial factor in attracting teenagers to Title X clinics and reducing incidence of
teenage pregnancies. This intent to not require parental notification or consent, the Second Circuit also
observed, is further buttressed by the fact the Title XX Adolescent Family Life Demonstration Projects—
enacted at the same time as Title X’s 1981 amendments—expressly imposed parental notification and
consent requirements on grantees. In the court’s view, that choice demonstrated that “Congress knew how

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to require parental notice and consent when that was its intention.” As to the requirement to comply with
relevant state notification and consent laws, the D.C. Circuit concluded that the requirement improperly
delegated to states the authority to establish eligibility requirements for Title X funds.
Relying on these decisions, other courts that later considered whether Title X projects are subject to state
laws that require parental consent—including the Tenth Circuit and Eighth Circuit—concluded that such
laws conflict with Title X. Consistent with this case law, HHS continued with its policy of maintaining the
confidentiality of minors that receive services at Title X projects. In 2021, HHS formally adopted 42
C.F.R. § 59.10(b) through rulemaking proceedings, which prohibits Title X projects from requiring
parental consent and notification for services provided to minors.
Before HHS issued the 2021 final rule that includes 42 C.F.R. § 59.10(b), in Deanda v. Becerra, a parent
sued the agency in the Northern District of Texas, challenging HHS’s then-policy of prohibiting Title X
projects from requiring parental consent and notification. Part 2 of this Sidebar series provides a summary
of the case and the district court’s order, as well as certain preliminary observations about the litigation.

Author Information

Wen W. Shen

Legislative Attorney

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