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

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.

Even so, it's not at all clear that Deanda has stated a claim that arises under federal law, as required to satisfy the jurisdictional statute. Lawyers and law students will recall the famous 1908 SCOTUS case  of Louisville & Nashville Ry. Co. v. Mottley as setting out the well-pleaded complaint rule: to get into federal court on federal question jurisdiction, the federal question must be part of the plaintiff's affirmative case; it cannot arise as a defense or in response to an anticipated defense. But plaintiff Deanda is anticipating a defense. He's saying that he has a right under state law to control his minor children's access to contraception. The federal issue arises by way of defense: the defendants say that the state law right doesn't control because it is pre-empted by federal law. At that point and only at that point--in response to an anticipated defense of federal pre-emption--plaintiff Deanda says that federal law does not pre-empt state law.

Thus, had Deanda filed a complaint that contained only the pre-emption claim, it would have been properly dismissed for lack of subject matter jurisdiction. However, Deanda's complaint contained two additional claims that are unquestionably federal: a claim for an exemption from federal law under the Religious Freedom Restoration Act (RFRA) and a claim that federal law violates Deanda's federal substantive due process right to direct the upbringing of his children. Under the federal supplemental jurisdiction statute, if there was federal question jurisdiction over either of those claims, then the pre-emption claim (which, as noted above, does not arise under federal law) can come along for the ride. 

The plaintiff withdrew his RFRA claim, so that can't be the federal anchor for the state law "not pre-empted" claim. Meanwhile, the federal parental rights claim is quite weak (even though Judge Kacsmaryk accepted it). Even if Carey plus the judicial bypass cases of the pre-Dobbs era are no longer good law (contrary to Justice Alito's assurances), that would mean only that there is no constitutional right of minors to contraception in the face of parental opposition; it would not mean that parents have a right to complete control over their minor children's medical care.

So far as I can tell, the government did not raise an objection to the statutory basis for subject matter jurisdiction, but that shouldn't matter. Courts have an obligation to assure themselves of subject matter jurisdiction regardless. So, what did the Fifth Circuit say about all of this?

Nada. Zip. Zilch.

After concluding that the plaintiff had Article III standing (more about that below), the court immediately proceeded to address the substantive pre-emption question without pausing to notice that that question arises under state, not federal law, and without assuring itself that the only remaining federal claim--the substantive due process parental rights claim--is substantial enough to anchor the non-pre-emption state law claim.

Only after concluding that federal law does not pre-empt the state law did the Fifth Circuit panel turn to the substantive due process parental rights claim, saying that because Deanda wins on pre-emption, the court need not address "the district court's holding that the Secretary's administration of Title X violates Deanda's constitutional right to direct his children's upbringing."

But that's wrong. If the parental rights claim fails as a matter of law, then it should be dismissed. And if it is dismissed, then per the supplemental jurisdiction statute, the district court "may decline to exercise supplemental jurisdiction" over the state law non-pre-emption claim. 

Ah, you say, may means may. Except that it doesn't really. As the Fifth Circuit has repeatedly held, including in this 2019 case, generally when all federal claims are dismissed before trial, the state law claims--here the state law claim and its anticipation of a federal defense--should also be dismissed and sent to state court. Failure to do so by a district court judge is a reversible abuse of the discretion granted by that permissive word "may."

If the Fifth Circuit panel had taken seriously its duty to assure itself of subject matter jurisdiction, it would have evaluated the parental rights claim and, if it found the claim wanting (as it ought to have), ordered the dismissal of the rest of the case.

But wait. There's more.

Deanda appears to have sued the wrong defendants. The complaint named three defendants: the federal Secretary of Health and Human Services; the Deputy Assistant Secretary for Population Affairs; and the United States itself. If this were a case under the Administrative Procedure Act (APA), something like that might have been proper. But it wasn't. It was a standard-issue lawsuit seeking declaratory relief to protect Deanda's asserted parental rights against violation.

Yet neither the United States nor either of the federal government officials Deanda sued can violate his asserted state or federal parental rights by distributing contraceptives to his minor daughter without his consent for the simple reason that the federal government does not distribute contraceptives. Rather, it distributes money to clinics. As a condition of receiving that Title X money, the clinics agree that they will keep patient information confidential--which has the effect of denying Deanda and other Texas parents such rights as they may have to deny their consent to treatment. But it's the clinics, not the federal government, that would be doing the distributing without parental consent.

Deanda ought to have sued a Title X clinic claiming a violation of his parental rights. At that point, the clinic would have raised federal law as a defense: federal pre-emption. Then Deanda could have argued that the state law is not pre-empted. The federal government could have intervened as a defendant to join the clinic in arguing for pre-emption. But the initial lawsuit had to have been against some party that was capable of distributing contraceptives to Deanda's minor children.

Why didn't Deanda sue some particular clinic? Presumably because he had no credible fear that his daughter would go to any Title X-funded clinic. Had Deanda sued a particular clinic or even a group of clinics, it would have been incumbent on him at least to allege a substantial risk that his minor daughter might show up there some day without his knowledge or consent.

Notably, the Fifth Circuit panel nonetheless found standing because it conceptualized Deanda's injury as the deprivation of his right to know whether his minor daughter was seeking contraception (thus also depriving him of his right to consent to or not consent to its provision). That's a clever move, but it's hardly clear that Deanda has a concrete and particularized injury absent some allegation that his minor daughter poses a substantial risk of visiting a Title X clinic--even assuming that Deanda had sued the right party.

Consider an analogy. Longstanding federal regulations require well-controlled experiments for phase 3 drug trials, which often means blinding patients to whether they are receiving the experimental drug or a placebo. Suppose that P asserts a right to know whether he's receiving the experimental drug or the placebo. It's  too late to challenge the longstanding regulations via an APA case (before anyone other than Judge Kacsmaryk!), so let's imagine that in this hypothetical case, as in the real contraception case, P brings an ordinary lawsuit against the Secretary of Health and Human Services. There would still be the problem that P is suing the wrong defendant, but put that issue aside. Even to have standing, P would need to allege that he is either enrolled in or currently seeking to enter a phase 3 trial for some drug. At the absolute minimum, P would have to allege that he has some illness for which there is a drug trial in the offing. Surely it does not suffice for standing (under the SCOTUS precedents) for P to say that it's always possible that he'll get some illness for which approved treatments, if any, are not likely to be as effective as some experimental treatment, and thus he has standing to challenge the blinding requirement. Yet that is equivalent to what Deanda is alleging with respect to the Title X confidentiality requirement.

There is one final odd twist to this case that makes it potentially unimportant but also terribly confusing. After Deanda filed his initial lawsuit and after briefing on summary judgment, the government promulgated a regulation requiring that federally funded clinics must keep patient information confidential, expressly stating further that "Title X projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services." That regulation obviously pre-empts the Texas law. There is simply no way to reconcile a federal prohibition on notifying parents with a state requirement to seek their consent (which requires knowledge).

Yet because the plaintiff didn't challenge the regulation under the APA, the Fifth Circuit panel held (correctly on this point) that Judge Kacsmaryk went too far by invalidating the reg. But if the reg is still valid, what remains of Judge Kacsmaryk's order of judgment? Here is the order:

1. The Court DECLARES that Defendants' administration of the Title X program violates Plaintiff's rights under Section 151.001(a)(6) of the Texas Family Code, as there is nothing in 42 U.S.C. § 300(a) that purports to preempt state laws requiring parental consent or notification before distributing contraceptive drugs or devices to minors.

2. The Court DECLARES that Defendants' administration of the Title X program violates Plaintiff's fundamental right to control and direct the upbringing of his minor children, which is protected by the Due Process Clause of the Fourteenth Amendment, as protected by the Supreme Court of the United States.

3. The Court HOLDS UNLAWFUL and SETS ASIDE the second sentence of 42 C.F.R. § 59.10(b) as “not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” and “in excess of statutory ... authority.” 5 U.S.C. § 706(2)(A)–(C).

The Fifth Circuit panel decision affirms point 1, doesn't reach point 2, and reverses on point 3. But reversing on point 3 renders point 1 unimportant: so what that Title X doesn't pre-empt the state law? The federal regulation at 42 C.F.R. § 59.10(b) clearly does pre-empt the state law.

What about point 2? The Fifth Circuit panel said it didn't need to reach it, but that can't be right. If point 2 stands, then no provision of federal law--neither Title X nor the reg--can bar parental consent. A federal constitutional right supersedes both a federal statute and a federal regulation. So point 2 effectively invalidates the reg, even though the Fifth Circuit panel reversed Judge Kacsmaryk's point 3. What gives? Is the reg valid for now or not?

My best guess is yes, the reg remains valid (unless and until Deanda or someone else successfully challenges it under the APA), but the panel sowed confusion by saying that it didn't need to reach the substantive due process claim. That claim underwrites broader relief than point 1.

Perhaps when the government seeks en banc review and/or certiorari, it can seek to have the substantive due process claim adjudicated--both for purposes of destroying supplemental jurisdiction and, in the event that fails, to clarify what exactly the status of the reg is.