Federal Judge Launches First Shot At Contraception

Precedent? Don't know her.

Birth Control Pills

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Since the Dobbs decision was first leaked, we’ve been on notice that eliminating the right to contraception is on the far-right’s to-do list. As codified by Justice Clarence Thomas in his concurrence in Dobbs, “we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell.”

While some politicians have already taken a stab at undermining the right to contraception, last week, a federal judge threw his hat in the ring to be the one that takes down that right. As reported by Ian Millhiser at Vox, Matthew Kacsmaryk — a Trump appointee, natch — took his shot at Title X, which is a federal program providing funding to health care providers for voluntary and confidential family planning services to patients — including adolescents.

Kacsmaryk’s decision held “the Title X program violates the constitutional right of parents to direct the upbringing of their children.” The only problem with that (well, there are a bunch of problems but the most glaring from a legal perspective)? That’s NOT THE LAW. As Millhiser writes:

Kacsmaryk’s decision is riddled with legal errors, some of them obvious enough to be spotted by a first-year law student. And it contradicts a 42-year-long consensus among federal courts that parents do not have a constitutional right to target government programs providing contraceptive care. So there’s a reasonable chance that Kacsmaryk will be reversed on appeal, even in a federal judiciary dominated by Republican appointees.

Lest you forget, the district court’s role is to interpret existing law, not create its own. But the YOLO Supreme Court’s attitude toward precedent has apparently trickled down as right-wing trial court judges with lifetime appointments feel empowered to say they know better than decades of established law and if an appellate court disagrees, they merely shrug and continue with said lifetime appointment.

The problems with Kacsmaryk’s legal “reasoning” include the issue of standing:

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But Alexander Deanda, the father in this case seeking to stop Title X-funded programs from offering contraception to minors, does not claim that he has ever sought Title X-funded care. He does not allege that his daughters have ever sought Title X-funded care. And he does not even allege that they intend to seek Title X-funded care in the future.

….

But Deanda has offered nothing more than conjecture that, if Title X continues to operate as it has for decades, one of his daughters might, at some point in the future, obtain contraception. Kacsmaryk nevertheless allowed his suit to proceed.

Misunderstanding of the supremacy clause:

Additionally, Kacsmaryk places an astonishing amount of weight on a Texas state law which provides that parents have a right to consent to their child’s “medical and dental care.” But the Constitution states explicitly that federal law is “the supreme Law of the Land,” and when state laws prevent a federal law from operating as Congress intended — including the federal law creating the Title X program — then the state law must yield.

Plus ignoring the seemingly on-point caselaw:

In Doe v. Irwin (1980), a federal appeals court case, the plaintiffs brought a similar challenge as Deanda against a state-operated family planning clinic that served both adults and teenagers. Doe acknowledged that a line of Supreme Court decisions stretching back to the 1920s establish that parents have a limited constitutional right “to the care, custody and nurture of their children.” At the same time, however, Doe held that “as with adults, the minor’s right of privacy includes the right to obtain contraceptives.” And so the plaintiffs’ claims in Doe placed these two constitutional rights in tension.

But the court found an easy way to relieve this tension. In each of the Supreme Court’s previous parental rights cases, “the state was either requiring or prohibiting some activity” — that is, the government used its coercive power to either require a child to take an action their parents did not like, or forbid the child from taking an action their parents wanted the child to take.

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But, since no one is required under Title X to receive contraceptive care, there’s nothing coercive about it.

Don’t worry, this poor reading of caselaw continues in what Millhiser calls “a hodgepodge of half-formed arguments.” Including the judge’s reliance on Troxel v. Granville (2000), which Kacsmaryk says, “does not rely on a heavy distinction between ‘voluntary’ and ‘compulsory’ programs.” Of course, since the program at issue in Troxel *was* coercive, why exactly would that case ever talk about voluntary programs??

And what’s an off-the-wall, far-right court decision without a disingenuous reading of history?

Similarly, he claims that “the common law held minors were incapable of giving consent to make important life decisions.” But English and early American law permitted minors to consent to sex as early as age 12, a fact that is simultaneously deeply upsetting and completely inconsistent with Kacsmaryk’s implication that 17-year-olds historically did not have control over their sexuality.

The question of what happens next to Title X remains on the table, though as Kascsmaryk held the program “violates the constitutional right of parents to direct the upbringing of their children,” he asked the parties to submit briefing on what should be done in light of that holding. But somehow you just know Kascsmaryk is itching to issue a nationwide injunction that’ll get him on FedSoc’s “nice” list this year.


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).