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Release Date: March 22, 2024
OPA Program Policy Notice: 2024 – 01
Purpose
The purpose of this PPN is to update Title X grantees regarding adolescent confidentiality requirements in response to the recent Fifth Circuit ruling in Deanda v. Becerra.
Background
On March 12, 2024, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Deanda v. Becerra. On December 20, 2022, the U.S. District Court for the Northern District of Texas had ruled that HHS’s administration of Title X to allow minors access to Title X services without parental consent violates Plaintiff Deanda’s rights under Section 151.001(a)(6) of the Texas Family Code and under the Fourteenth Amendment. The district court also held unlawful and set aside the second sentence of 42 C.F.R. § 59.10(b). That sentence reads: “However, Title X projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services.”
In its March 12 decision, the Fifth Circuit affirmed only part of the district court’s ruling. The Fifth Circuit agreed with the district court that HHS’s administration of Title X to allow minors access to Title X services without parental consent violates Deanda’s rights under Section 151.001(a)(6) of the Texas Family Code. But it did not reach the constitutional question, and it reversed the part of the district court’s judgment that held unlawful and set aside the parental consent language in HHS’s regulation. Once the Fifth Circuit’s mandate issues, the regulatory language will no longer be vacated, but the district court’s grant of declaratory relief to Deanda will remain in effect.
Guidance
Pursuant to the court’s declaratory judgment, Title X projects may not provide Mr. Deanda’s minor daughter with Title X family planning services without parental consent. In addition, in light of the Fifth Circuit’s decision, the Title X confidentiality regulation at 42 C.F.R. § 59.10(b) will remain in effect.
OPA will not be enforcing 42 C.F.R. § 59.10(b) in the State of Texas, nor will it enforce that regulation elsewhere in the fifth circuit to the extent it conflicts with state law. OPA will continue to enforce § 59.10(b) throughout the rest of the country.
Title X projects in states in the Fifth Circuit other than Texas may wish to consult with their own counsel regarding their states’ requirements with respect to confidentiality.