Deanda v. Becerra

• Docket Number: 23-10159
• Decision Date: 12 March 2024
• Citation: 96 F.4th 750
• Parties: Alexander R. DEANDA, on Behalf of Himself and Others Similarly Situated, Plaintiff—Appellee, v. Xavier BECERRA, in his official capacity as Secretary of Health and Human Services; Jessica Swafford Marcella, in her official capacity as Deputy Assistant Secretary for Population Affairs; United States of America, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

96 F.4th 750

Alexander R. DEANDA, on Behalf of Himselfand Others Similarly Situated, Plaintiff—Appellee, v. Xavier BECERRA, in his official capacity as Secretary ofHealth and Human Services; Jessica Swafford Marcella,in her official capacity as Deputy Assistant Secretary forPopulation Affairs; United States of America, Defendants—Appellants.

No. 23-10159

United States Court of Appeals, Fifth Circuit

FILED March 12, 2024

Appeal from the United States District Court for the Northern District of Texas, USDCNo. 2:20-CV-92, Matthew Joseph Kacsmaryk, U.S. District Judge

Jonathan F. Mitchell(argued), Austin, TX, Charles William Fillmore, Attorney, Fillmore Law Firm, L.L.P., Fort Worth, TX, Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, for Plaintiff-Appellee.

Courtney Dixon(argued), Abby Christine Wright, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants-AppellantsXavier Becerra, Jessica Swafford Marcella, United States of America.

Hillary Schneller, Center for Reproductive Rights, U.S. Litigation, New York, NY, for Amici Curiae Jane's Due Process, Advocates for Youth, AAUW IL, Abortion Access Front, Abortion Coalition for Telemedicine Access (ACT Access).

Stephanie Toti, Esq., Staff Attorney, Lawyering Project, Brooklyn, NY, Jamila Asha Johnson, Lawyering Project, New Orleans, LA, Paige Suelzle, Lawyering Project, Burien, WA, for Amicus Curiae Power to Decide.

Elizabeth Myers, Jennifer R. Ecklund, Esq., Thompson Coburn, L.L.P., Dallas, TX, for Amicus Curiae Every Body Texas.

Chelsea G. Tejada, American Civil Liberties Union Foundation, Reproductive Freedom Project, New York, NY, for Amicus Curiae National Family Planning & Reproductive Health Association.

Elizabeth A. Brody, Office of the Attorney General for the State of New York Appeals & Opinions, New York, NY, for Amici Curiae State of New York, State of Arizona, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, Commonwealth of Massachusetts, State of

Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, District of Columbia.

Maher Mahmood, Jeffrey B. Dubner, Democracy Forward Foundation, Washington, DC, for Amici Curiae American Academy of Pediatrics, American Medical Association, American College of Obstetricians and Gynecologists, Society for Adolescent Health and Medicine.

Christopher Paul Schandevel, Alliance Defending Freedom, Lansdowne, VA, John J. Bursch, Alliance Defending Freedom, Washington, DC, for Amicus Curiae Alliance Defending Freedom.

Before Richman, Chief Judge, and Haynes and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

INTRODUCTION

Since 1970, the federal Title X program has given clinics hundreds of millions of dollars in grants to distribute contraceptives and other family planning services.By statute, Title X grantees must serve "adolescents" while also "[t]o the extent practical . . . encourag[ing] family participation."42 U.S.C. § 300(a).The question before us is whether Title X preempts a Texas law giving parents the right to consent to their teenagers' obtaining contraceptives.SeeTEX. FAM. CODE § 151.001(a)(6).

We hold that Title X does not preempt Texas's law.A grantee can comply with both.Moreover, Title X's goal (encouraging family participation in teens' receiving family planning services) is not undermined by Texas's goal (empowering parents to consent to their teen's receiving contraceptives).To the contrary, the two laws reinforce each other.We therefore affirm the district court's judgment declaring that Title X does not preempt Texas's parental consent law.

In doing so, we agree with the district court that the plaintiff, Alexander Deanda, has standing.If Title X preempts Texas's law, as the government maintains, it would nullify Deanda's right to consent to his children's medical care.That invasion of Deanda's state-created right alone creates Article III injury.SeeSpokeo, Inc. v. Robins, 578 U.S. 330, 342, 136 S.Ct. 1540, 194 L.Ed.2d 635(2016);Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975).

Because we agree on preemption, we need not reach the district court's holding that Title X violates Deanda's constitutional right to direct his children's upbringing.

We depart from the district court on one point, however.Its final judgment partially vacated a regulation, 42 C.F.R. § 59.10(b), which forbids Title X grantees from notifying parents or obtaining their consent.The regulation, promulgated after Deanda filed suit, was not challenged by Deanda under the Administrative Procedure Act("APA") or otherwise.Nor did the summary judgment order address the regulation's validity or preemptive force.We therefore conclude that the court erred by vacating the regulation under 5 U.S.C. § 706(2) of the APA.

Accordingly, we AFFIRM in part, REVERSE in part, and RENDER.

I.BACKGROUND

A.

In 1970, Congress enacted Title X of the Public Health Service Act to "mak[e] comprehensive voluntary family planning services readily available to all persons desiring such services."Pub. L. No. 91-573, § 2(1),84 Stat. 1504, 1504(1970)(codified as amended at 42 U.S.C. § 300 et seq.).The law authorizes the Secretary of the Department of Health and Human Services("HHS")"to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services."42 U.S.C. § 300(a).Grants "shall be made in accordance with such regulations as the Secretary may promulgate."Id.§ 300a-4(a).

"Title X grantees have served the teenage population from the inception of the program."Planned Parenthood Fed'n of Am., Inc. v. Heckler, 712 F.2d 650, 652(D.C. Cir.1983).A 1978amendment made this explicit, requiring grantees to include "services for adolescents."Pub. L. No. 95-613, § 1(a)(1),92 Stat. 3093, 3093(1978);see alsoHeckler, 712 F.2d at 652(notingthe 1978amendment"simply codified accepted past practice" with respect to providing services to "sexually active adolescents")(quotingS. Rep. No. 822, 95th Cong., 2d Sess. 24(1978)).

In 1981Congress amended Title X to require that, "[t]o the extent practical," grantees "shall encourage family participation in projects assisted under this subsection."Pub. L. No. 97-35, § 931(b)(1),95 Stat. 357, 570(1981).In 1983, the Secretary promulgated regulations requiring grantees to notify parents before prescribing contraceptives to minors and to comply with state parental notification and consent laws.See48 Fed. Reg. 3600(Jan. 26, 1983).Those regulations never went into effect, however, because the D.C. and Second Circuits ruled them unlawful.SeeHeckler, 712 F.2d at 663-64;New York v. Heckler, 719 F.2d 1191, 1196(2d Cir.1983).The courts reasoned that Congress had declined to add such requirements to Title X and that, in any event, the regulations would "undermine" a "primary purpose" of the program—making "family planning services readily available to teenagers."Heckler, 712 F.2d at 660, 663.

As a result, the Secretary's "longstanding guidance" to Title X grantees has been that they cannot require parental consent or even notify parents.See, e.g., 86 Fed. Reg. 56,144, 56,166(Oct. 7, 2021)("Specifically with respect to adolescents, courts have for decades recognized minors' rights to receive confidential services under the Title X program.")(citingHeckler, 712 F.2d 650).The Secretary formalized this policy by promulgating a final rule in October 2021.Seeid. at 56,144.While reiterating that "[t]o the extent practical, Title X projects shall encourage family participation," the rule forbids grantees from requiring parental consent or notifying parents before or after a minor receives family planning services.42 C.F.R. § 59.10(b).

B.

In 2020, Alexander Deanda filed a federal lawsuit challenging the Secretary's administration of the Title X program.He alleged that he is the father of three minor daughters¹; that he is raising his daughters according to his Christian beliefs to abstain from pre-marital sex; and that he wants to be informed if any of his children access or try to access contraceptives.He further alleged that Texas law gives him a right to consent before his children obtain contraceptives.SeeTEX. FAM. CODE § 151.001(a)(6);§ 102.003(a)(1).Finally, he alleged that the Secretary administers Title X unlawfully by funding grantees who provide contraceptives to minors without notifying parents or obtaining parental consent.Accordingly, Deanda sought declaratory and injunctive relief on behalf of himself and a putative class, claiming that the Title X program violates (and does not preempt) Texas law and that it violates his constitutional right to direct his children's upbringing as well as his rights under the Religious Freedom Restoration Act("RFRA").²After the district court declined to certify a class, Deanda moved for summary judgment on his own behalf, which the district court granted.

The district court first ruled that Deanda had standing because the Secretary's administration of Title X threatens his right under Texas law "to consent to his children's medical care" and also "increas[es] the risk that [his] children might access birth control without his knowledge or consent."On the merits, the court concluded that Title X does not preempt Texas's parental consent law and also that the Secretary's administration of Title X violates Deanda's constitutional right to direct the upbringing of his children.

The court then ordered the parties to file proposed final judgments.Deanda's proposed...