Fired the first shot

A notorious Trump judge just fired the first shot against birth control

In retrospect, it was inevitable that this particular judge would come for contraception.

By Ian Millhiser

Matthew Kacsmaryk, a Trump appointee to a federal court in Texas, spent much of his career trying to interfere with other people’s sexuality.

A former lawyer at a religious conservative litigation shop, Kacsmaryk denounced, in a 2015 article, a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

So, in retrospect, it’s unsurprising that Kacsmaryk would be the first federal judge to embrace a challenge to the federal right to birth control after the Supreme Court’s June decision eliminating the right to an abortion.

Last week, Kacsmaryk issued an opinion in Deanda v. Becerra that attacks Title X, a federal program that offers grants to health providers that fund voluntary and confidential family planning services to patients. Federal law requires the Title X program to include “services for adolescents,”

The plaintiff in Deanda is a father who says he is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.” He claims that the program must cease all grants to health providers who do not require patients under age 18 to “obtain parental consent” before receiving Title X-funded medical care.

This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.

But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.

This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.

And so, last Thursday, the inevitable occurred. Kacsmaryk handed down a decision claiming that “the Title X program violates the constitutional right of parents to direct the upbringing of their children.”

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.

Nevertheless, Kacsmaryk’s opinion reveals that there are powerful elements within the judiciary who are eager to limit access to contraception. And even if Kacsmaryk’s opinion is eventually rejected by a higher court, he could potentially send the Title X program into turmoil for months.

Kacsmaryk’s opinion is incompetently drafted and makes several obvious legal errors

Kacsmaryk’s opinion makes a number of legal errors, some of them egregious.

The Constitution, for example, does not permit litigants to file federal lawsuits challenging a government program unless they’ve been injured in some way by that program — a requirement known as “standing.” 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.

Thus, this case should have been dismissed for lack of standing. As the Supreme Court held in Lujan v. Defenders of Wildlife (1992), the plaintiff in a federal lawsuit must show that they’ve been injured in a manner that is “actual or imminent” and not “conjectural” or “hypothetical.” 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.

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.

If the law worked any other way, then states would have the power to fundamentally alter federal welfare programs. Republican state lawmakers who believe that the Medicare or Social Security eligibility age should be 75 — or 125, for that matter — could pass a law imposing this new age requirement, thus destroying Congress’s power to create universal programs that benefit all Americans regardless of whether they live in a red state or a blue state.

Kacsmaryk attempts to weaponize the Constitution against birth control

The idea that parents have a constitutional right to shape their child’s upbringing — and that this right undermines government-funded contraceptive care — has been around for nearly half a century. It’s just never gained any real traction in federal court.

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.

A program like Title X cannot violate this rule against coercion because there is nothing coercive about it. The federal government provides grants to health providers who voluntarily offer family planning services to their patients. And those providers, in turn, offer their services to patients who voluntarily seek out contraceptive care. No one is required to receive reproductive health care services funded by Title X.

This distinction between coercive government programs which compel certain behaviors, and welfare programs which merely fund voluntary activity, is implicit in the Constitution’s text. The Supreme Court (somewhat controversially) found the right of parents to shape their children’s upbringing in the Constitution’s due process clause, which provides that no one may be deprived of “liberty” without “due process of law.” But it’s impossible to deprive someone of liberty by creating a voluntary program that no one is required to participate in. “Liberty,” by definition, means the freedom to do as you choose.

To all of this, Kacsmaryk offers a hodgepodge of half-formed arguments that layer several additional pages onto his opinion without presenting much legal reasoning. One of his primary arguments rebutting Doe, for example, relies on the fact that the Supreme Court’s parental rights decision in Troxel v. Granville (2000) “does not rely on a heavy distinction between ‘voluntary’ and ‘compulsory’ programs.” But Troxel involved a coercive state law governing who is allowed to interact with a child against their parents’ wishes — so there was no reason for Troxel to discuss voluntary programs because such a program was not before the Court.

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.

That leaves him with a policy argument against the rule announced in Doe. Kacsmaryk claims that limiting the scope of parents’ constitutional rights to cases involving actual coercion would lead to “absurd results,” such as preventing “parents from becoming aware of what books their children are reading in school and deny[ing] them the right to exempt their children from an offensive reading curriculum,” or preventing parents from intervening if a doctor provides care that is genuinely harmful.

But even if you assume that parents have a right to exempt their children from public school curriculums, a mandatory school assignment is a coercive act — so decisions like Doe are consistent with a rule allowing parents to exempt their children from certain school assignments.

Similarly, Kacsmaryk’s decision reaches far beyond the unlikely circumstances when a family planning clinic prescribes medically harmful treatments to teenagers. According to Kacsmaryk, “parental consent does not depend on the particular form of contraception or the environment in which the contraception is distributed.” So his decision would even prevent a public university from leaving out a basket of free condoms that anyone, including students who are not yet 18, can take from as they choose.

Obviously, questions about teenage sexuality are fraught. But the bottom line is that the people’s elected representatives in Congress debated these difficult issues, and they chose to enact a Title X program that provides funding that Kacsmaryk finds objectionable. It is simply not a judge’s job to short-circuit this democratic process of determining how the law should approach teenage sexuality. Nor is it Kacsmaryk’s job to impose his own well-documented prudishness on a federal program like Title X.

So what happens to Title X now?

Although Kacsmaryk claims that Title X “violates the constitutional right of parents to direct the upbringing of their children,” he has not yet ordered the federal government to halt the program. His opinion concludes by requiring the parties in Deanda to submit proposals by this Thursday laying out just what action Kacsmaryk should take against the federal government.

But Deanda’s lawyers have already signaled that they want an aggressive injunction that could temporarily shut down Title X, and permanently harm teenagers’ ability to obtain reproductive care.

In their complaint, these lawyers ask Kacsmaryk to prohibit the federal government from “funding any family-planning project in the United States that fails to obtain parental consent before distributing prescription contraception or other family-planning services to minors.” Should Kacsmaryk issue a such a sweeping order, which he could very well do given his past record, that could force the federal government to hit pause on the entire Title X program. To comply with such an order, Title X could have to build systems to determine which reproductive health providers give parents a veto power over medical care provided to their teenaged children.

There is a decent chance that Kacsmaryk will eventually be reversed by the Supreme Court — among other things, the standing problem in this case is so glaring that it may be hard for Deanda’s lawyers to convince five justices that they are allowed to bring this case in the first place. But it may be a while before that happens. Kacsmaryk’s decision will appeal first to the exceedingly conservative Fifth Circuit, which has a history of rubber-stamping outlandish decisions handed down by Kacsmaryk and similarly minded judges.

In the short term, in other words, Kacsmaryk could create a great deal of chaos for reproductive health clinics, which may lose an important source of funding for months or longer.