The Courts and
Family Planning

In December 2022, US District Court Judge Matthew Kacsmaryk ruled that HHS's administration of Title X "violates the [federal] constitutional right of parents to direct the upbringing of their children" and a Texas state law requiring parental consent for contraception. The case was brought by a Texas resident claiming parental rights were being violated — even though there was no evidence any of his daughters had sought or received Title X services.

HHS appealed. NFPRHA submitted an amicus brief to the Fifth Circuit supporting Title X's longstanding prohibition on parental consent. On March 13, 2024, the Fifth Circuit upheld the holding that Title X's statute does not preempt Texas's parental consent law, but reversed the finding that §59.10(b) of the 2021 Title X regulation was unlawful.

HHS subsequently issued a Program Policy Notice stating it would not enforce §59.10(b) in Texas or other Fifth Circuit states (Mississippi and Louisiana) to the extent it conflicts with state law. The case was not appealed beyond the Fifth Circuit.

Texas Attorney General Ken Paxton filed a lawsuit seeking to vacate the parental consent prohibition in the 2021 Title X rule nationwide — despite parental consent already being required in Texas under Deanda. The suit seeks to permanently block HHS from funding any Title X project anywhere in the country that fails to comply with any state's parental consent or notification laws. The case is in early briefing stages.

In October 2021, Ohio and 11 other states sued over the 2021 Title X rule, challenging the abortion referral requirement and program integrity (physical separation) requirements. On November 30, 2023, the Sixth Circuit upheld the abortion referral requirement based on Rust v. Sullivan and Chevron deference, but held that the program integrity requirements are not a permissible interpretation of §1008 and granted Ohio a limited preliminary injunction.

NFPRHA filed amicus briefs in both the district court and Sixth Circuit in support of the 2021 rule. The case is now back in the district court for consideration on the merits.

The Supreme Court dismissed this case as "improvidently granted," returning to the lower courts the question of whether EMTALA (the federal Emergency Medical Treatment and Labor Act) preempts Idaho's abortion prohibition for medical emergencies. The dismissal also vacated the Court's prior stay of a district court preliminary injunction — restoring the injunction and allowing abortions for medical emergencies in Idaho.

Idaho's argument that EMTALA exceeds Congress's Spending Clause power has significant implications beyond abortion: if accepted, it could hinder the federal government's ability to enforce spending clause conditions against private parties — including in Title X. Oral argument before the Ninth Circuit is scheduled for December 2024.

The Court ruled that the default six-year statute of limitations for challenging a federal agency action under the Administrative Procedure Act (APA) does not begin to accrue until the plaintiff is injured by the agency action. In practical terms, a regulation could now be challenged decades after its publication by plaintiffs "newly injured" by it — not just within six years of when it was published.

The combination of overturning Chevron deference (Loper Bright) and allowing even longstanding regulations to be challenged (Corner Post) has the potential to create significant chaos in federal agency policies and programs — including Title X.