May 31, 2023
Astrid Fuentes
Staff Reporter (2022-2023)
Accessing birth control is a personal choice and may involve private information. Patient privacy and consent are key aspects of medical care. However, due to their age, minors cannot consent to certain medical care and parents are involved in their children's medical decisions.¹ With recent court rulings about minors’ rights to privately access birth control, Texas minors need to know their rights to access birth control.
What is birth control?
Birth Control refers to various medications, procedures, devices, or behaviors that prevent pregnancy and regulate or alleviate menstrual periods regardless of sexual activity.² Today, there are more birth control options than ever, including the well-known “pill,” the patch, Depo-Provera shots, vaginal ring, and even long-term options such as the intrauterine device (IUD).³ In addition to preventing unwanted pregnancies, patients may turn to birth control to treat hormonal acne or heavy menstrual periods.⁴
History of Birth Control Rights in America
As scientists developed birth control methods and society’s attitudes evolved, the courts have been presented with several birth control cases over the years.
1936: A U.S. Court of Appeals ruled that birth control devices and information would no longer be classified as obscene.⁵ After this ruling, doctors earned the right to distribute contraceptives for medical purposes in New York, Vermont, and Connecticut.⁶
1960: Birth control was approved by the U.S. Food and Drug Administration (FDA).⁷
1965: The U.S. Supreme Court struck down laws prohibiting the use of contraceptives by married couples.⁸
1970: Congress passed Title X (pronounced “Title Ten”) of the Public Health Service Act which provides funding to make contraceptives available for low-income patients.⁹
1972: The U.S. Supreme Court struck down laws prohibiting the use of contraceptives by unmarried people.¹⁰
Today, an adult’s access to birth control is legally protected because of these cases.
What are the legal rights of teenagers to access birth control in Texas?
Minors (anyone under 18) considering birth control should be aware of medical consent requirements and privacy issues that may complicate their ability to receive a birth control prescription. Twenty-seven states and the District of Columbia allow people under the age of 18 to consent to their own birth control use.¹¹
However, if you are under the age of 18, Texas law requires parental or legal guardian consent for most medical treatments.¹² Some minors are exempt from this requirement and can consent to their own treatment in certain circumstances,¹³ for example:
Minors in active duty with the armed services;¹⁴
Minors that are legally emancipated (also known as the “removal of disabilities” process under Chapter 31 of the Texas Family Code);¹⁵ or
Minors that are 16 years of age or older and can show they live apart from their parents or guardians and are financially independent.¹⁶
If a Texas teen does not fall within one of these limited exceptions, the parental consent requirement for birth control will apply. Parental consent is required even if the minor patient already has a child and is a parent.¹⁷
Patient Privacy & Confidentiality at Title X Clinics
Until recently, minors in Texas could access birth control without parental consent and at little to no cost at
certain clinics that receive federal Title X funding.¹⁸
Title X is a federal grant program that provides funding to clinics, providers, and non-profits for family planning services and preventative health services at little to no cost to patients, regardless of age, income, or immigration status.¹⁹ Because Title X clinics receive their funding from the federal government, they are generally exempt from following the same requirements as state clinics.
Under its intended application, Title X encourages “family participation” in medical decisions but providers would not need to require parental consent, nor did staff have to “notify a parent or guardian” of minor requesting or receiving services.²⁰ This meant Title X gave qualifying Texas teens an avenue to privately seek and access birth control.
Change in the Law
However, as of January 2023, a federal judge in Texas ruled that the state requirement for parental consent also applies to Title X clinics.²¹
The Court held that Texas-based Title X clinics that prescribed birth control to minors without requiring parental consent violated a parent’s constitutional rights “to direct” their children’s upbringing and medical care.²²
This means Texas teenagers no longer have a legal right to confidential access to birth control without parental involvement.
What options do Texas teens have to access birth control?
Though there are various programs available to Texas residents that provide birth control prescriptions, minors now have limited options.
Healthy Texas Women’s Program provides birth control access but requires that a parent or legal guardian apply on behalf of the minor and needs parental consent for a birth control prescription. Texas’ Children’s Health Insurance Program (CHIP) does not provide birth control at all.²³
Virtual doctor visits and phone applications, or “tele-medicine,” that facilitate birth control prescriptions also seek to comply with state parental consent requirements.²⁴
While states can enact their own state laws, federal programs, like Title X, are intended to provide options to achieve federal priorities. There are various personal uses and medical needs that may motivate Texas teens to seek birth control. On a national scale, Texas’ teenage pregnancy rates continue to be above national average despite teen pregnancy rates declining in many other states.²⁵ Limiting minors’ access to birth control with logistical barriers, such as parental consent, undermines the patient’s privacy and their health care.
Sources:
[1] Tex. Fam. Code Ann. § 32.002.
[2] Birth Control, Planned Parenthood, https://www.plannedparenthood.org/learn/birth-control, (last visited Feb. 2, 2023).
[3] Id.
[4] Rachel K. Jones, Beyond Birth Control: The Overlooked Of Oral Contraceptive Pills, Guttmacher Institute, Nov. 2011, at 3, https://www.guttmacher.org/sites/default/files/report_pdf/beyond-birth-control.pdf.
[5] United States v. One Package, 86 F.2d 737 (2d Cir. 1936).
[6] Our History, Planned Parenthood, https://www.plannedparenthood.org/about-us/who-we-are/our-history, (last visited Feb. 5, 2023).
[7] Id.
[8] Griswold v. Connecticut, 381 U.S. 479 (1965).
[9] Title X Turns 50, Office of Population Affairs, https://opa.hhs.gov/grant-programs/title-x-service-grants/title-x-turns-50 (last visited Feb. 5, 2023).
[10] Eisenstadt v. Baird, 405 U.S. 438 (1972).
[11] The My Body, My Future Act to Protect Youth Access to Birth Control was Filed in the Texas Legislature, Jane’s Due Process (Jan. 26, 2023), https://janesdueprocess.org/blog/state-representative-ana-maria-ramos-and-state-senator-nathan-johnson-introduce-the-my-body-my-future-act-to-protect-youth-access-to-birth-control-in-texas/.
[12] Tex. Fam. Code Ann. § 32.002.
[13] Id. § 32.003.
[14] Id. § 32.003(1).
[15] Consent for Medical Treatment of Minor, Planned Parenthood, https://www.plannedparenthood.org/planned-parenthood-greater-texas-family-planning-preventative-health-services/get-involved, (last visited Apr. 25, 2023).
[16] Tex. Fam. Code Ann. § 32.003(2).
[17] Eleanor Klibanoff & Mandi Cai, Texas Tops the Nation in Teens Who Give Birth Multiple Times, The Tex. Tribune (Feb. 21, 2022, 5:00 AM), https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/.
[18] Id.
[19] Title X Turns 50, supra note 9.
[21] Deanda v. Becerra, No. 2:20-CV-092-Z, 2022 WL 17843038 (N.D. Tex. Dec. 20, 2022).
[22] Id. at 13.
[23] The Texas Campaign to Prevent Teen Pregnancy, Contraceptive Coverage in the Texas Children’s Health Insurance Program (CHIP) 2, (Jan. 2021), https://txcampaign.org/wp-content/uploads/2021/07/CHIP_report.pdf.
[24] Jenny Ingle Pappas, Can I Get Birth Control if I’m Under 18?, NURX, (Dec. 21, 2020), https://www.nurx.com/faq/can-i-get-birth-control-if-im-under-18/.
[25] Klibanoff & Cai, supra note 17.
