Revocation of the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization1 has raised concern that other substantive due process rights may face a similar fate.2 Concurrently, parental rights have only expanded as advocates have increasingly attempted to assert legal control over children’s education and access to medical treatment.3 Recently, in Deanda v. Becerra,4 the Fifth Circuit upheld a Texas parental consent requirement that blocks minors’ ability to confidentially access contraception at Title X clinics.5 By focusing its reasoning solely on standing and preemption doctrine, the Fifth Circuit strategically avoided the key underlying question of how to balance parents’ and minors’ Fourteenth Amendment rights. This avoidance has significant implications for minors’ access to confidential reproductive care via mechanisms such as judicial bypass.
Enacted by Congress in 1970, Title X6 provides low-income individuals comprehensive family planning services,7 excluding abortion care.8 Grantee healthcare providers are mandated to offer “services for adolescents.”9 In 1981, Congress added a requirement for grantees to “encourage family participation” “[t]o the extent practical.”10 The “longstanding guidance” of the Department of Health and Human Services (HHS) has interpreted the statute as constraining grantees from requiring parental consent.11 In October 2021, HHS codified this guidance in a final rule that explicitly prohibits parental consent requirements.12
In 2020, prior to the promulgation of this final rule, Alexander Deanda filed suit in federal court challenging HHS’s administration of Title X.13 Deanda “alleged that he is the father of three minor daughters” whom “he is raising . . . according to his Christian beliefs.”14 As such, “he want[ed] to be informed if any of his children . . . try to access contraceptives.”15 Texas law ostensibly provides Deanda a statutory basis to require parental notification and consent, as section 151.001 of the Texas Family Code gives parents “the right to consent to the child’s . . . medical and dental care.”16 Accordingly, Deanda advanced two claims.17 First, Deanda asserted that Title X, as interpreted by HHS, did not preempt the parents’ statutory right of parental consent.18 Second, Deanda contended that Title X violated his Fourteenth Amendment constitutional right to direct his children’s upbringing.19
The district court granted summary judgment to Deanda in full.20 After finding that Deanda had Article III standing,21 the court held that the Texas Family Code was not preempted because Title X’s “to the extent practical” language definitionally set a “floor” for family involvement that could accommodate a parental consent requirement.22 Even if Title X did preempt the Texas law, the district court held that “the right of parents to consent to the use of contraceptives” was a substantive due process right that rendered the interpretation of Title X to preempt Deanda’s right of consent unconstitutional.23 Assessing Title X in light of this constitutional holding, the district court partially vacated HHS’s 2021 rule that bars parental consent requirements.24
The Fifth Circuit affirmed in part and reversed in part.25 Writing for the panel, Judge Duncan26 first agreed with the district court’s determination that Deanda had Article III standing.27 Focusing its analysis on Deanda’s alleged injury, the court found that Title X’s “invasion”28 of Deanda’s right to consent was more than just a “bare procedural violation.”29 It was instead a concrete harm, as courts had long honored the right of parents to direct their children’s religious upbringing.30 The court also rejected the government’s additional injury-related arguments on appeal: (1) that Deanda’s injury was not imminent because he had not alleged that his daughters were likely to obtain contraception, and (2) that his grievance was generalized because it applied to all parents.31 The court found the first argument tautological because Title X enabled minors to seek access absent parental knowledge.32 It additionally found the second argument unpersuasive because Deanda was asserting a harm specific to religious parents, not on behalf of all parents.33
The court then held that Title X did not preempt section 151.001 of the Texas Family Code, relying primarily on the premise that states’ “historic police powers”34 should not be preempted “unless that was the clear and manifest purpose of Congress.”35 First, the court held that the plain text of Texas’s law did not obstruct the purpose of Title X, as the “overarching goal[s] of encouraging family participation” and “requiring parental consent” reinforced each other.36 Thus, interpreting Title X otherwise would “distort the text”37 — thereby flouting “the presumption against preempting state family law.”38 Next, the court held that Title X’s legislative history — a failed pre-1981 congressional amendment to Title X requiring parental notification and a conference committee report indicating that grantees should refrain from directly notifying parents — did not support preemption.39 In particular, the court found that neither piece of evidence clearly communicated Congress’s intention, and thus reliance on them would effectively amend Title X’s current language.40 Third, the court rejected the persuasive authority of Planned Parenthood Federation of America, Inc. v. Heckler,41 a D.C. Circuit decision invalidating 1982 HHS regulations that required Title X grantees to notify parents.42 Judge Duncan asserted that Heckler answered questions related to regulatory authority, not those related to preemption.43 The court recognized that HHS’s finalized regulation could, in theory, independently preempt Texas’s statute.44 However, it declined to rule on this issue because it believed that if it did, it would be erroneously acting as a court of “first view” rather than one of review.45
As the court held that Texas’s law was not preempted, it declined to evaluate the district court’s determination that Title X violated Deanda’s constitutional right to direct his children’s upbringing per the doctrine of constitutional avoidance.46 Finally, the court held that the district court erred by partially vacating HHS’s finalized rule, as Deanda had not actually challenged this rule under the Administrative Procedure Act.47
In Deanda, the Fifth Circuit strategically avoided addressing how parents’ and minors’ competing Fourteenth Amendment rights can be reconciled, with key implications for minors’ future access to confidential reproductive care. The Supreme Court has held that individuals have a fundamental substantive due process right to access contraception.48 Although the scope of minors’ right to access contraception is less certain,49 a majority of the Court has recognized that minors retain at least some liberty interest.50 By declining to assess the merits of the district court’s constitutional holding, the Deanda court allowed the district court’s skepticism about minors’ liberty interest in contraception to go unchallenged.51 This has significant implications for minors’ access to confidential contraceptive care via procedures such as judicial bypass.
The Supreme Court has long recognized the fundamental right to contraception, holding “[t]hat the constitutionally protected right of privacy extends to an individual’s liberty to make choices regarding contraception.”52 In Carey v. Population Services International,53 the Court analyzed the scope of this right as applied to minors. Though the Supreme Court has held that minors presumptively enjoy constitutional protections,54 it has acknowledged that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”55 Applying this framework,56 the Carey Court enjoined enforcement of a state law criminalizing the sale of contraceptives to minors,57 but the Justices disagreed on the proper standard of review. Writing for a four-Justice plurality, Justice Brennan argued that laws restricting access are “valid only if they serve ‘any significant state interest that is not present in the case of an adult.’”58 As such, “a blanket prohibition, or even a blanket requirement of parental consent . . . [was] foreclosed.”59 Writing separately, Justice Powell contended that laws restricting access — while not “free from judicial review”60 — should instead be subject only to the rational basis test.61 Thus, laws allowing parents to regulate access were likely permissible.62 The Carey Court certainly fragmented on the constitutionality of parental consent laws. However, a majority agreed that minors retained at least some liberty interest in contraception access.63 Lower courts have interpreted this fractured opinion as requiring courts to balance minor and parental due process rights when directly reviewing parental-rights challenges to laws that allow confidential contraception access.64
By declining to reach the merits of the district court’s constitutional holding, the Fifth Circuit allowed the district court’s doubt regarding minors’ liberty interest in contraceptive access to go uncontested.65 Of course, the Deanda court was not procedurally bound to review the district court’s due process analysis. After all, per the doctrine of constitutional avoidance,66 courts often decline to decide more than necessary in order to leave thorny questions to the political process.67 However, constitutional avoidance is but one prudential factor that ought to be balanced against other strategic considerations.68 In many cases, the federal judiciary is best positioned to define the scope of individual rights.69 Moreover, when other circuit courts have squarely answered the constitutional question at issue,70 federal courts ought to prioritize doing the same in the interest of clarity.71
Justified or not, the Deanda court’s invocation of constitutional avoidance enabled it to hide behind the cloak of judicial minimalism while still signaling that it would overturn Carey if directly presented with the issue. Some have described this phenomenon as “anticipatory overruling” — a practice in which lower courts “disregard Supreme Court decisions when they are reasonably sure that the Supreme Court would overrule them given the opportunity.”72 The district court explicitly embraced this framework by asserting that the “correctness of Carey’s holding” regarding contraception bans was “in doubt” based on Dobbs.73 Even if not overtly, the Fifth Circuit adopted this view by valorizing parental authority throughout its opinion. Indeed, the court emphasized that “parental rights” fall within “enduring American tradition”74 — thus indicating that it believed that the Supreme Court would prioritize this interest as it has other historical practices.75 To be sure, the Supreme Court has categorically rejected the practice of anticipatory overruling.76 Yet, lower courts have sometimes engaged in the practice anyway,77 increasing the risk that the Fifth Circuit could do the same.
Recognizing an unqualified right of parents to regulate minors’ contraception access would have significant implications for minors’ access to confidential reproductive care via mechanisms such as judicial bypass. In the context of abortion access, the Supreme Court has held that minors must be allowed the option of petitioning a court to waive parental consent requirements.78 Recognizing that this mandate may be on shaky footing post-Dobbs, some scholars have noted that the common law right to bodily integrity79 may alternatively provide minors a way to overcome statutory parental consent requirements in certain cases — thus requiring states with these laws to allow judicial bypass.80 This common law right ought to extend to minors’ access to contraception as well. After all, confidential access to contraception, at least via judicial bypass, is consistent with this doctrine’s recognition of minors’ right to autonomy.81 Yet, an unqualified constitutional right of parents to direct their children’s medical care would trump even this last-resort failsafe.
Deanda v. Becerra should be viewed as part of a concerning trend of chipping away at constitutional rights simply by omission. Especially in an era when the Supreme Court is reconsidering many of its precedents,82 lower courts’ signaling that they would be willing to anticipate changes in jurisprudence breeds uncertainty. By declining to engage with the district court’s proposition that minors retain little to no liberty interest in contraceptive care, the Fifth Circuit indicated that the right to contraception, codified in jurisprudence for decades, may indeed already be on the chopping block.