“This is a Jonathan Mitchell case, and I am convinced how we really lose birth control.”
That’s what Jessica Mason Pieklo, Rewire News Group’s executive editor and my nine-year work partner, said to me a month ago about Deanda v. Becerra, the case about a Christian father of three from Texas who alleges that the federal Title X family planning program, which bars Title X clinic staff from telling parents that their kid is seeking contraception, violates his constitutional rights as a parent.
And after listening to Deanda’s attorney Jonathan Mitchell make his case before a federal appeals panel of three conservative judges—one of them infamous Trump appointee Kyle Duncan—I have to agree with her. (Mitchell is the architect of Texas’ bounty hunter law, which ended the legal right to abortion in Texas nine months before the Supreme Court overturned Roe v. Wade.)
The law is not on Mitchell’s side. For 40 years, every appeals court to consider the question has ruled that Congress considered the issue of family participation in the Title X program and chose an approach that would encourage but not require family participation, qualifying it with the phrase “to the extent practical.”
In other words, sometimes it’s not practical for a teen to tell their parents they want birth control due to violence and abuse in the home, and requiring parental notification undercuts the point of Title X.
So this should be a no-brainer, right? Just point to court precedent and say, “See?”
But that’s not how it works anymore. This Supreme Court no longer concerns itself with such trifles as institutional norms and the rule of law.
We’re living in an era of theocracy that isn’t so much creeping as it is a firehose in the face of those of us who believe that everyone, including teenagers, should have the right to decide what to do with their body when it comes to their sexuality or gender identity. And Alexander Deanda’s claims are chum for the conservative theocrats who are desperate to end birth control access in order to increase the domestic supply of infants.
Deanda the patriarch
Deanda claims he is raising his three adolescent daughters according to Christian teachings. Those teachings, of course, include keeping your legs closed until marriage. But how is Deanda supposed to preserve the chastity of his daughters when the federal government is practically force feeding his baby girls birth control pills?
In Deanda’s view, that’s basically what Title X does—allow teens to circumvent the rules that patriarchs like him lay down in their households. It allows his daughters to exercise agency and subvert his parental authority. Deanda wants to be informed if his three daughters are taking or trying to take birth control. His daughters are his property, just like in the good old days of coverture, and they will remain his property until he decides to give them away for a trunk full of gold doubloons and a couple of goats.
But here comes Uncle Sam telling him he can’t do that.
According to Mitchell, a section in the Texas Family Code gives him the right to consent to his daughters’ medical care, including whether or not they receive contraception. And because Title X regulations bar its clinics from notifying parents, Deanda is claiming that the United States is “flouting” Texas law.
You read that correctly: The federal government—the law of which reigns supreme according to the pocket Constitution that Mitchell probably carries in his breast pocket—is flouting Texas law.
Matthew Kacsmaryk, conservatives’ favorite nationwide injunction-happy district court judge, sided with Deanda to the surprise of no one. Kacsmaryk said the way the Department of Health and Human Services (HHS) administers Title X violated Deanda’s parental rights under Texas law and under the due process clause of the 14th Amendment.
But what about the supremacy clause, you may be asking, which says federal law preempts state law?
Good question, because Title X and its regulations prohibit parental notification. But Texas law gives parents the right to consent to medical care. Federal law is in clear conflict with state law and therefore Title X preempts Texas’ law. That’s the way it works.
There’s also Supreme Court precedent. In Carey v. Population Services International, the Court ruled in 1977 that the right to privacy in connection with decisions affecting procreation extends to minors as well as adults. In that case, the Court struck down a New York law that banned the distribution of contraceptives.
There’s also appeals court precedent. In Planned Parenthood v. Heckler, for example, the D.C. Circuit blocked an HHS rule promulgated in 1983 that would have required Title X clinic staff to notify a parent or guardian within ten working days of prescribing contraception to a minor.
Mitchell isn’t arguing within the bounds of the law. He’s arguing for a reshaping of the law, and he’s explicitly doing so. And based on oral arguments last week, the Fifth Circuit Court of Appeals is probably going to go for it.
The Fifth Circuit is probably on board
After the Fifth Circuit’s ridiculous rulings in United States v. Rahimi and Alliance for Hippocratic Medicine v. FDA, I don’t have any confidence that the rule of law matters. Precedent certainly doesn’t matter anymore. What matters is outcome. Everything else is an exercise in reverse engineering legal arguments to fit a predetermined outcome.
One has to read these opinions with an eye not toward what the Supreme Court has said in the past 40 or 50 years, but what it has said in the last few, particularly when it comes to substantive due process rights like the right to privacy.
Justice Clarence Thomas warned us in his concurrence in Dobbs v. Jackson Women’s Health Organization that Griswold v. Connecticut, along with Lawrence v. Texas and Obergefell v. Hodges, are on the table. These are right to privacy cases based on the same foundations as Roe v. Wade—and we all saw how that worked out. Arguments that previously would be dismissed as ridiculous are now acceptable.
Deanda’s arguments, to the extent he can get past his standing problem—and I think he can—are out of line with current law, but they are in line with the ongoing regressive backlash when it comes to human sexuality that is being driven by Christian nationalists with their co-conspirators at every level of government.
Ian Milhiser, whose Vox piece on the case you should read, thinks there’s a decent chance the Supreme Court will kick this case on standing. I’m not so sure there’s any chance.
The government disputes that Deanda has standing, arguing that he didn’t allege that his daughters had sought or were planning to seek contraception from a Title X clinic, nor did he allege that they were even of child-bearing age (which prompted a very uncomfortable colloquy between the government’s lawyer, Courtney Dixon, and Judge Catharina Haynes about 9-year-olds getting pregnant.)
And given that the Supreme Court has in the past said hypothetical injuries don’t cut it for standing, perhaps the government is right.
But I’d be very surprised if this case gets smacked down on standing grounds once it wends its way to the Supreme Court. Just last term in 303 Creative v. Elenis, the Court issued what amounted to an advisory opinion letting a woman off the hook for discriminating against LGBTQ+ people in connection with a business she hadn’t even created yet.
Standing. Ripeness. Justiciable controversy.
Used to be a requirement.#303Creative is a preenforcement action which is sometimes allowed but not when there’s no credible threat of enforcement which here there absolutely is not.
The SCOTUS is illegitimate.
— Imani Gandy (Orca’s Version) ⚓️ (@AngryBlackLady) December 5, 2022
Besides, the standing issue hits different in Deanda. One can imagine there are scores of patriarchs like Deanda who want their daughters to remain chaste. Also, it wouldn’t be hard for Deanda to amend his complaint to include allegations that his daughters are on the verge of giving away the proverbial milk for free. I’m even willing to concede that the daughters of Christian patriarchs might decide to get out there and have a bunch of sex just to stick it to their dads.
In truth, the laser focus on standing in this case gives me agita because it means the meatier discussion about the merits of birth control access for teens and how much control a parent should wield over their child becomes an afterthought to procedural concerns. It’s giving me Dobbs flashbacks.
In Dobbs, Mississippi asked the Supreme Court to take the case and rule as to whether the then-current abortion laws—Roe and Planned Parenthood v. Casey—barred the state from enacting a 15-week abortion ban. Mississippi didn’t say anything about wanting the Court to overturn Roe until after the Court had accepted the case. Then, Mississippi essentially filed a brief that said, “Oh, by the way, just overturn Roe.”
Dobbs was an “oh, by the way” decision. Mississippi didn’t ask the Court to overturn Roe at first. There was no full and robust discussion about what would happen if Roe were overturned because it wasn’t even on the table until the last minute. Given the gravity of the case, one would have expected a real reckoning with what it would mean to end the legal right to abortion.
I fear that Deanda is headed in the same direction. I fear there will be no robust discussion about teen pregnancy, teen access to contraception, and how child-rearing has changed to give children more agency so that they’re not the property of their fathers as part of some neo-coverture tradition lifestyle. I fear Deanda will end up on the shadow docket, and the Court will say HHS overstepped its authority when it issued regulations barring parental notification, and it just cannot possibly be that good Christian fathers should be kept in the dark about their children’s sexual activities.
And Judge Kyle Duncan, who’s probably going to write the Fifth Circuit panel decision, tipped his hand during last week’s oral arguments with his line of questioning and reverent references to, of all people, Robert Bork.
We’re in for a borking
In 1983, the D.C. Circuit Court of Appeals issued a ruling in Planned Parenthood v. Heckler. Planned Parenthood had filed a lawsuit challenging Title X regulations issued by the HHS secretary that required parental notification (with limited exceptions). The D.C. Circuit ruled that the regulations were invalid because they were outside the scope of HHS’ authorizing legislation. In other words, the secretary wasn’t authorized under the Title X statute to issue a rule that required parental notification.
In that case, Robert Bork, the man who was too extreme to ascend to the Supreme Court, essentially arguing that there’s no way Congress could have meant “the federal government will assist teenagers in conducting active sexual lives but that their parents may not be told.”
Duncan directly quoted that line during oral arguments. He was cosplaying as a judge baffled by the idea that the federal government could ever tell a parent they have no right to know whether their kid is accessing birth control or is trying to, even though that’s been the law for 40 years.
According to Duncan, Congress could very well make the policy decision to allow teens access to birth control with no parental consent requirement, but they haven’t made that policy decision in the statutory language of Title X. Never mind the cases that look to congressional committee reports and legislative intent. According to Duncan, there hasn’t been enough focus on what the statutory language says: that family participation should be encouraged to the extent practical. The statute itself doesn’t say that parents must be notified (which is why parental notification regulations were struck down in 1983 in Heckler). And while Rule 59.10(b), which HHS dropped in 2021, expressly forbids parental notification, surely Congress did not intend for Title X to preempt state laws regarding parental consent.
So it doesn’t matter that the rule expressly allows teen access to birth control with no parental consent—who cares? Those regulations exceed the HHS secretary’s authority as much as the 1983 regulations did.
In Duncan’s view—and in Bork’s view—if Congress wants the federal government to sanction teens having sex without their parents’ knowledge, Congress must explicitly say so. And when you think about who Bork is, it’s ironic that his 40-year-old view of Title X might win the day. In 1987, Ronald Reagan nominated Bork to the Supreme Court and Democrats went ballistic—with good reason. Bork’s politics were extreme: He didn’t believe in the right to privacy, opposed the Civil Rights Act, and his rulings as D.C. Circuit Court judge terrified Democrats.
It is ironic, therefore, that Bork, the man who was too extreme to be nominated to the Supreme Court, is the person who may provide the constitutional basis for the Supreme Court striking the first blow against birth control access.
Yes, Deanda is about teen access to birth control. But once teens are cut off from access to birth control, it won’t be long before adults are too, and we can say bye-bye to Griswold and Eisenstadt v. Baird, the cases that allowed married couples and all the single ladies, respectively, to legally use birth control.
Deanda is the aperitif to a multicourse meal that will give the FedSoc Six the opportunity that they and their rich benefactors have been gagging for since Clarence Thomas suggested in his concurring opinion in Dobbs that the Court revisit other substantive due process rights to see if they could be stripped away like abortion.
If this is what getting borked looks like, count me out.
CORRECTION: An earlier version of this story misstated who replaced Robert Bork to fill an empty Supreme Court seat. In fact, Bork was replaced by Anthony Kennedy.