Religious supremacy, not Supremacy Clause, is key to Fifth Circuit contraception ruling

Judge Kyle Duncan held that longstanding federal Title X policy protecting adolescents’ confidential access to contraception is wrong.

Two of Donald Trump’s most conservative, religiously motivated judicial appointees have now issued a two-tier attack on the federal government’s longstanding policy that clinics receiving Title X funding need to provide adolescents with confidential access to contraception.

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit, in an opinion by Judge Kyle Duncan on behalf of a unanimous three-judge panel, held that Health and Human Services Secretary Xavier Becerra’s enforcement of Title X to protect that confidential access violated Texas law. The ruling came in a challenge brought by a Texas father, Alexander Deanda, who says his religious and parental rights — and his rights under state law — are violated by the enforcement of the federal law.

In Duncan’s opinion for the court, affirming much of U.S. District Judge Matt Kacsmaryk’s December 2022 ruling in the case, he was joined by Chief Judge Priscilla Richman and Judge Catharina Haynes, both George W. Bush appointees.

The Fifth Circuit rejected the federal government’s argument in the case that the federal law — which states that Title X grantees must serve “adolescents” and “[t]o the extent practical … shall encourage family participation” — preempts the Texas law — which says that a parent has “the right to consent” to a child's medical care.

The Constitution’s Supremacy Clause, which forms the underlying basis for preemption claims, ultimately took a backseat to religious supremacy.

The Fifth Circuit opinion, like the district court’s ruling before it, was written to include explicit religious protections — in addition to those granted under the First Amendment and any specific statutory religious protections. They are, instead, religious protections that these judges highlighted under generally applicable laws (like the Texas medical care law) and even broader legal principles (like standing).

That underpinning for the ruling makes the authors of these opinions all the more notable. Before Duncan took his seat on the Fifth Circuit, he was the general counsel for the Becket Fund for Religious Liberty and then worked on similar issues at his own firm. Before Kacsmaryk took his seat on the U.S. District Court for the Northern District of Texas, he was deputy general counsel for the First Liberty Institute, an organization that bills itself as “first in the fight for religious freedom.”

Both were anti-abortion, anti-LGBTQ figures before taking the bench, and both have continued in that vein as judges — taking some of the most extreme actions and and issuing some of the most extreme rulings in the country in recent years. Kacsmaryk, of course, drew national attention in 2023 for his ruling that would have halted the 2000 approval of mifepristone — a ruling too extreme even for the Fifth Circuit, which reversed that part of his ruling.

The same partial reversal happened here. But first, and most importantly, the Fifth Circuit affirmed Kacsmaryk’s rulings that Deanda has standing, that Title X does not preempt Texas’s law, and that the longstanding Title X interpretation thus violates the Texas law.

It also should be noted that Deanda is represented by Jonathan Mitchell, the former solicitor general of Texas who represents or has represented many far-right conservative and religious clients and causes — including Donald Trump.

---

How is that happen?

Let’s start with the federal law:

Then, Duncan continued, “In 1981 Congress amended Title X to require that, ‘[t]o the extent practical,’ grantees ‘shall encourage family participation in projects assisted under this subsection.’”

A plain reading of the federal law is that it will not always be “practical” to encourage — let alone include — family participation. For this reason, the longstanding interpretation of the federal law is that it requires the possibility of confidential services.

For Duncan, like Kacsmaryk before him, however, the federal law’s language becomes a “floor” for protection of family involvement, allowing states like Texas to go further and require such involvement.

Because the federal government said clinics should try to involve families where possible, that means — the Fifth Circuit held on Tuesday — that it “concretely furthers“ the “same goal” to “requir[e] parental consent before minors obtain contraceptives.” Then, because the administration, like many before it, interpreted the law differently, Duncan concluded for the court that the “Secretary’s administration of Title X violates Deanda’s rights under” the Texas law.

It is a Escher drawing argument: The longstanding interpretation of the federal law is wrong, Duncan and Kacsmaryk tell us, walking up the stairs. Texas’s policy actually “furthers” the federal “goal” of family participation, as they walk right. Because of that, going down now, there is no preemption. Then, however, the stairs shift and they’re walking sideways: Under that longstanding interpretation of Title X, the current enforcement of Title X violates the Texas law.

The appeals court, as noted, did not sign off on all of Kacsmaryk’s ruling.

In addition to the preemption ruling, Kacsmaryk also had found that the longstanding interpretation of Title X “violates Plaintiff's fundamental right to control and direct the upbringing of his minor children” in violation of the Fourteenth Amendment. On Tuesday, Duncan wrote that the Fifth Circuit did not need to decide the Fourteenth Amendment question given that it decided the preemption question in Deanda’s favor.

Kacsmaryk also had ruled that a 2021 federal regulation implementing the federal government’s interpretation of the federal law is “unlawful” and was to be “set[] aside.” Duncan wrote for the appeals court, however, that Kacsmaryk had gone too far in addressing the rule because “Deanda never challenged the regulation, under the [Administrative Procedure Act] or otherwise.” Duncan noted that it was also a problem that Kacsmaryk hadn’t really even explained his reasoning for doing so.¹

It’s not surprising to see the Fifth Circuit pull back some of the most extreme aspects of the district court’s decision — while nonetheless keeping fundamental elements of the lower court ruling in place that move the law sharply right. This is happening with increasing frequency. As with the U.S. Supreme Court’s handling of far-right appeals courts, this could be as much of an opportunity for those who would push the law right as it is a burden on the courts.

It looks like that’s what happened here. There is much more to the case, and many troubling implications of the Fifth Circuit’s decision from Duncan — not to mention Kacsmaryk’s ruling before it — but this is the major news.

Underlying Duncan’s opinion, though, is an even more stark reality: The two Fifth Circuit judges who allowed Duncan to write the views expressed in this opinion into law are not, traditionally, among the most conservative of the Fifth Circuit judges. Richman is solidly conservative, but does not generally stand out as an extremist (on that conservative court). Haynes is, among the 12 Republican appointees on the court, generally one of the most moderate.

There are only five Democratic appointees on the court, and, of the 12 Republican appointees, there are eight Trump and Reagan appointees on the court (including Duncan) who are generally more conservative than, at least, Haynes. Doing the math, that means there is virtually no chance that this decision could be reversed en banc by the full court.

In other words, unless the Justice Department and HHS decide to allow this ruling to stand — blocking this longstanding Title X interpretation in Texas, as well as Louisiana and Mississippi — they almost certainly will need to seek review in the U.S. Supreme Court.

The only alternative path I can immediately see is if HHS would want to argue, separate from this case, that the 2021 regulation was adopted as an interpretation of an ambiguous law. But, there’s no reason to believe that would turn out differently in the Fifth Circuit and there’s no reason for HHS or the Justice Department to give up the broader argument that they are right under the law in the rest of the country. And, perhaps most importantly, the Chevron deference on which that argument would hold most water is already being challenged at the Supreme Court and could be gone by the end of June.

---

What else? (There’s always more.)

There are many other questions with the ruling.

The court only gets to the claim raised by Deanda after a winding decision on standing — a ruling that others are sure to focus on in their critiques of Tuesday’s ruling.

I want to highlight just a few aspects of Duncan’s standing ruling.

Although Deanda withdrew the Religious Freedom Restoration Act claim that he originally brought in the case, it — along with his claim of his “constitutional right to direct his children’s upbringing” — figure prominently into the court’s standing analysis. “Deanda alleges injuries to his religious exercise and parental rights that have perennially been honored by American courts,” Duncan wrote.

Later, in discussing Becerra’s specific standing objections, Duncan went even further, stating that the court was holding only that parents with “particular religious beliefs” — not all parents — could bring this lawsuit.

Now, it is of course possible that Duncan could find a path forward for a plaintiff with non-religious beliefs, but it is important that, here, the court explicitly stated that it was ruling on those specific grounds.

Duncan also used the discussion of parental rights in the standing section to take gratuitous swipes at the contraceptive services long provided thanks to Title X.

“A key goal of the Secretary’s policy is to get contraceptives into children’s hands without their parents knowing,” Duncan wrote — with the italics in his ruling, later adding, “Parents’ standing to sue should not depend on whether the Secretary has successfully kept them in the dark about their children’s sex lives.”

While explicitly not ruling on Deanda’s Fourteenth Amendment parental rights claim, Duncan nonetheless used this portion to, in effect, voice his agreement with another circuit’s ruling rejecting parental right constitutional claims brought by parents of transgender minors facing bans on gender-affirming medical case.

In discussing how the parental right interest helps to justify the court’s standing finding, Duncan noted, “True, parental rights over their children’s medical treatment are not unlimited,” and then cites to and quotes from the ruling of the U.S. Court of Appeals of the Sixth Circuit upholding Tennessee and Kentucky’s bans.

That’s not all.

Finally, and in a somewhat shocking though not altogether surprising turn of events, Robert Bork is now apparently the law of the land in the Fifth Circuit.

Bork’s name — in reference to his time as a federal appellate judge — appears 10 times in Duncan’s 29-page opinion, all related to and quoting from a partially dissenting opinion from Bork in a 1983 decision of the U.S. Court of Appeals for the D.C. Circuit.

The focus on Bork’s partial dissent is necessary because the actual court opinion — and the three other circuits to agree with and rely on it in the decades since — lead one, unsurprisingly, in the other direction in this case.

In the D.C. Circuit case, the Reagan administration had — and I swear I am not making this up — tried to require all Title X providers to notify minors’ parents of any contraception prescriptions and to comply with state laws requiring such parental notice.

The D.C. Circuit, like the district court below it, blocked the rules, holding that “the regulations are fundamentally inconsistent with Congress' intent and purpose in enacting Title X and are therefore beyond the limits of the Secretary's delegated authority.”

Bork disagreed.

Four years later, the Senate rejected his Supreme Court nomination due to his extremism.

More than 36 years after that, though, Duncan would — at least in the Fifth Circuit — give him the final say, as if he had been confirmed after all.

1. “Nor did the court’s summary judgment order independently address the regulation’s validity,” Duncan wrote. “True, in overruling the Secretary’s objections, the district court suggested its substantive rulings were incompatible with the regulation’s lawfulness. Be that as it may, that is not the same as adjudicating an APA challenge to the regulation.”