Texas Law Requiring Parental Notice and Consent for Contraception Not Preempted by Title X

The Fifth Circuit ruled today that Title X does not preempt a Texas law that requires parental notice and consent when a child tries to access contraceptives.

The ruling leaves the Texas law on the books, but also leaves open the question whether a federal regulation is valid and may preempt it.

The case, Deanda v. Becerra, arose when a father claimed that Texas law gave him the right to consent before his minor daughters obtained contraceptives, and that the Secretary unlawfully administered Title X by funding grantees who provide contraception to minors without parental notification and consent. The government argued that Title X preempted Texas law.

The Fifth Circuit disagreed. The court noted that Title X says, "To the extent practical, entities which receive grants or contracts [to provide contraception] shall encourage family participation in projects assisted under this subsection." The court said that there's "no real conflict" between that provision and Texas law:

The federal text plainly conveys the overarching goal of encouraging family participation in adolescents' family planning decisions. The Texas law pursues the same goal through more specific means: requiring parental consent before minors obtain contraceptives. Those objectives reinforce each other. As Deanda argues, Title X establishes a "floor" for grantees' participation (encouraging family participation), and Texas law establishes a specific means of achieving that goal (obtaining parents' consent). So, far from undermining Title X's purposes, Texas law concretely furthers them.

But there's a hitch. After Deanda sued, HHS implemented a regulation that prohibits Title X projects from "requir[ing] consent of parents or guardians for the provision of services to minors." (The regulation codifies long-standing HHS practice.) The regulation, if valid, would independently preempt Texas law. The district court vacated the reg, but the Fifth Circuit reversed that portion of the ruling, noting that Deanda never challenged the reg, and the district court never assessed it under the APA. (That's not surprising, because HHS issued the reg after Deanda sued.)

The upshot: the court says that Title X does not preempt Texas law, but leaves opens the question whether the HHS reg does. Both the Texas law and the HHS reg stay on the books, awaiting the next challenge.