The Right-Wing Crusade Against Teen Birth Control Could Be Coming to Your State Soon
Teens in Texas today can’t get birth control at federally funded clinics without their parents’ permission. That goes for new patients, as well those already on the pill or receiving quarterly shots, who now need permission before getting a refill. It also goes for teens who already have children of their own, putting underage moms in the awkward position of being in charge of their children’s medical decisions, while still not being in control of their own. (In addition to having one of the highest teen birth rates, Texas has the second-highest repeat teen birth rate in the nation.)
This is all a relatively recent development, thanks to a ruling issued by a controversial judge in December that ended access to free, confidential birth control in Texas through Title X, the Nixon-era federal family planning program. The Biden administration announced on Thursday that it will appeal the ruling, but doing so is somewhat risky. It could either lead to the restoration of birth control access in the state, or, if the ruling is upheld by a higher court, similar restrictions could spread beyond Texas’ borders.
“Things that are born and bred in Texas very often find themselves in other states,” says Stephanie LeBleu, citing both Senate Bill 8 — the abortion bounty law — and state laws restricting gender-affirming medical care. LeBleu is the acting Title X project director at Every Body Texas, which oversees Title X funding for 32 agencies operating 156 clinic sites across the state. Last year, the organization funded services — everything from birth control to STI testing — for 8,870 clients under the age of 18. One way or the other, she says, “We expect to see our counterparts in other states having to deal with this issue pretty soon.”
The Texas lawsuit was brought by a man named Alexander Deanda, who, according to the complaint, is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.” His lawyer is Jonathan Mitchell, the man who helped fashion the legal framework for Senate Bill 8, which effectively outlawed abortion after six weeks in Texas months before Roe was overturned. Mitchell initially attempted to file Deanda’s lawsuit as a class action suit on behalf of “all parents of minor children in the United States” — but the judge denied that motion, declaring it overly broad.
The lawsuit has a number of fundamental deficiencies, starting with the fact that Deanda lacks standing to bring the case. Mitchell doesn’t claim that Deanda or his daughters have sought Title X care at any point in the past, or that they will in the future. For that reason alone it should have been quickly dismissed. But there are other reasons to think the suit would fail: past attacks on Title X’s confidential services have been rejected over privacy concerns, and courts have long held that parents don’t have a right to sue the government over contraceptive care.
Nonetheless, Judge Matthew Kacsmaryk ended Texas teens’ access to free confidential birth control in December, writing that Title X violates a parent’s “fundamental right to control and direct the upbringing of his minor children.” (The judge is himself the father to five minor children.) If the name sounds familiar it’s because Kacsmaryk — a religious rights activist installed on the federal bench by Donald Trump in 2019 — is the same judge who could effectively ban the abortion pill in all 50 states very soon.
Despite the lawsuit’s glaring problems, there was a period of time when advocates in Texas were concerned that the federal government might choose not to appeal the ruling. Multiple inquiries made by Rolling Stone to the Department of Justice, the Department of Health and Human Services, and the Office of Population Affairs seeking information about whether the administration would appeal before the Monday deadline went unanswered in advance of the DOJ filing Thursday night.
The appeal’s success is far from guaranteed considering the make-up of the courts where it would be heard. The case will go first to the ultra-conservative Fifth Circuit Court of Appeals, where Republicans hold 12 of the court’s 17 active judgeships, with Trump himself appointing one-third of the bench. After that, the case could be further appealed to the Supreme Court, where Justice Clarence Thomas this past summer signaled his willingness to strike down Griswold v. Connecticut — the landmark ruling that declared state restrictions on birth control unconstitutional. Kacsmaryk cited Thomas’ concurrence in his December opinion, sparking fears among some advocates that if this case does make it to the Supreme Court it could be a vehicle for the conservative majority to “reconsider” federal protections for birth control.
In the meantime, Kacsmaryk’s decision to strip birth control rights in Texas still stands. “Young people will continue to be harmed by the judgment here in Texas,” LeBleu says. “It ignores their humanity, it compromises their future, it dismisses their rights to their own body. That’s something that we all have to live with in Texas. And that’s really sad, and pretty devastating.”
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