Excited to learn that seven Texas teams had made it into the NCAA “March Madness” tournament, Governor Greg Abbott recorded a video message declaring Texas “#1 at everything.” This is a dubious claim, to be sure. Texas ranks in the bottom 20% of states for COVID-19 vaccination rates, voter turnout, and access to healthcare. But there are some areas in which Texas excels. It has the highest rate of carbon dioxide emissions and the highest rate of uninsured adult women, to take just two examples.
Texas is also consistently top five among states for teen pregnancy rates—five highest, that is—and, in 2018, Texas was number one in the rate of repeat teen births. These numbers are not just bad luck; they are the result of a set of GOP policy choices and priorities that have decimated women’s health generally, and teen access to sex education and contraception more specifically.
Texas does not permit minors to obtain prescription birth control without parental consent—even if they have already given birth to a child. Texas house member, Ana-Maria Ramos, has introduced a bill to allow teens to access birth control without parental involvement (Texas H.B. 3369). In this column, I’ll consider the current state of reproductive health laws and policies in Texas and why this bill is so important.
Minors’ Access to Healthcare
Minors’ access to sexual and reproductive health services is always precarious because the legal framework that governs sexual and reproductive health was designed for adults. Reproductive rights protected by the U.S. Constitution are grounded in autonomy, and autonomy presupposes an adult subject. The Supreme Court has held, in a series of cases, that the Due Process Clause of the Fourteenth Amendment protects a right of privacy that includes the right to decide whether to bear or beget a child; the right to terminate a pre-viability pregnancy without undue burden from the government; the right to buy and use contraception; and the right to engage in sexual behavior with other consenting adults in non-commercial arrangements.
Minors share in these constitutional rights, but the Supreme Court has held that they can be adjusted to account for minors’ lesser-developed decision-making capacity, the right of parents to make decisions about their children’s healthcare, and the state’s interest in protecting the welfare of children. Depending on the particular issue at stake, that balancing can produce varied results. For example, although pregnant minors have a constitutional right to terminate a pre-viability pregnancy without undue burden by the government, the Supreme Court has held that states may require parental involvement as long as they also provide an opportunity for the minor to obtain a judicial bypass order that operates as a substitute for parental consent. (Those rules are explained in more detail here.) Regardless of the age of the pregnant person, states only have discretion to impose rules and regulations within the constitutional parameters set by the Supreme Court.
Contraceptive access is regulated in a similar fashion. The Supreme Court established early in that states cannot deny married or single adults access to contraceptives. Thus, most of the fights about contraception for adults revolve around funding and the practical ability to obtain contraceptives rather than the legal right to do so. The Trump administration took a variety of actions that had the purpose or effect of making contraceptives less accessible to American women. For minors, however, the legal landscape is more complicated, and they face unique barriers to access such as the lack of transportation or money and the inability to sneak away for medical appointments undetected by a disapproving parent.
In Carey v. Population Serv. Int’l (1977), the Court invalidated a New York law that, among other things, restricted the sale of contraceptives to minors younger than sixteen, but sidestepped the underlying question of whether minors have a constitutional right to access to contraception. That means that, unless and until the Supreme Court holds otherwise, states have the authority to regulate minors’ access to contraception.
In general, minors cannot consent to their own medical care. For adults, informed consent to treatment is what protects healthcare providers against a charge of battery—touching a person without their consent. Unless a court has determined otherwise, adults have the capacity to consent to treatment or to refuse treatment, regardless of the wisdom or necessity of treatment.
But for minors, that right generally belongs to parents of the minor rather than the minor directly. Parents have the authority to grant or withhold consent for their children’s medical care. Parents can force a child to receive medical care—and a healthcare provider can act based on parental consent alone. The right to make healthcare decisions is part of the bundle of rights possessed by fit parents. Under the Supreme Court’s longstanding interpretation of the Due Process Clause of the Fourteenth Amendment, fit parents have a constitutional right to the “care, custody, and control” of the child. Parental rights include control over big decisions like education, religion, and healthcare, as well as small decisions about clothing, food, lifestyle, and contact with others. and that includes the right to make decisions about medical care.
Parental rights are not unlimited. Every state has a set of standards defining child abuse and neglect; the state can intervene to protect the child from a parent who falls below the minimum level of fitness or conduct. In the medical context, this means that although healthcare decisions are vested in the parent, the parent’s discretion has a limit. If a parent refuses to consent to life-sustaining treatment, the parent might be guilty of neglect and subject to criminal penalties or consequences through the child welfare system such as removal of the child from the home.
Mature Minors and Contraceptive Care
Even though healthcare decision-making for children is generally left to the parents, states often carve out exceptions for situations when they think the welfare of minors is better served by allowing them to make their own decisions. Every state, for example, permits minors to consent to testing and treatment for sexually transmitted infections. States would rather have the minor seek treatment without parental knowledge than not at all.
Contraception is another issue where states often strike a balance among competing interests—the parent’s right to make medical decisions, the minor’s interest in sexual and reproductive autonomy, and the state’s interest in preventing teen pregnancy. Twenty-three states and the District of Columbia permit minors to consent to contraceptive services on their own behalf, and another twenty-four states permit them to consent in at least some circumstances. (The Guttmacher Institute maintains an updated report on applicable state laws here.) Twenty-four states permit minors to access prescription contraceptives (and related medical treatment) in some but not all circumstances. For example, many of those states permit a married minor to consent to contraceptive services, and some apply the same rule to a minor who already has been pregnant.
Four states have no special rules for contraceptive services, which means minors need parental consent as they would for any other medical procedure or prescription. Texas is one of these states.
Under the relevant provisions of the Texas Family Code, minors have autonomous decision-making capacity in relatively few situations. A minor who is on active duty with the U.S. armed forces can consent to any type of medical treatment, as if they were an adult. Likewise, a minor who is at least 16 years old, lives apart from any parent or guardian, and manages her own financial affairs can consent to medical treatment. Any minor can consent to the diagnosis or treatment of communicable diseases, including sexually transmitted infections, or the diagnosis or treatment of drug or chemical addiction. A minor who is unmarried and pregnant can consent to any medical treatment related to the pregnancy other than abortion (where parental consent or a judicial bypass is required). A minor who is the custodial parent of a child can consent to treatment for the child—though not for herself. And, finally, a minor who is detained by the state can consent to medical treatment. Contraceptive care is not mentioned in this provision, which means that it is subject to the more general rule that only parents can consent to medical care for a minor.
Unlike many other states, there is no exception to permit minors to consent to contraceptive care. For minors in Texas, their only option for contraceptive care without parental consent is through federally funded Title X clinics, which are required under federal law to serve women regardless of age; the federal law overrides state parental consent laws in this context. The rollback of Title X will affect minors and adult women (set in motion by the Trump administration and likely reversed by the Biden administration at some point), but especially minors in those states like Texas where they cannot access birth control through state-funded clinics or private providers.
Policies that restrict minors’ access to contraception run counter to abundant evidence that minors benefit from unfettered access to contraception—including promising results of a program in Colorado that has provided long-acting contraceptives, such as IUDs, completely free to teenagers and low-income women. Those that oppose teen access to contraception often cite a concern that it will lead more teens to become sexually active, but there is no evidence to support this claim. Rather, the available evidence suggests that teens without ready access to birth control simply have sex either without any contraception or with less reliable methods like condoms or withdrawal. There is a real human cost to policies like those in Texas that are rooted in ideology rather than science—and that cost is borne most by young women whose life circumstances give them the least access to education, resources, and control over their own lives.
H.B. 3369: The “My Body, My Future” Bill
This bill, which was recently referred to the Committee on Public Health, proposes to create a categorical exception to the parental consent rule for contraception. Specifically, it adds to the existing list of exceptions in Texas Family Code § 32.003 to provide that “A child may consent to medical, dental, psychological, and surgical treatment for the child by a licensed physician or dentist if the child . . . consents to a contraception-related examination or medical treatment, other than abortion.” It defines “contraception” to mean “any reversible method of preventing pregnancy that is approved by the United States Food and Drug Administration.”
This bill provides a simple fix to one of the many problems with sexual and reproductive health in Texas. All women in Texas have suffered under the state’s rightward political shift, especially from the decision beginning in 2011 to cut family planning services and funding. Texas has highly restrictive rules on abortion access, including mandatory counseling, a waiting period, mandatory ultrasounds, a prohibition on telemedicine, a ban on private insurance coverage of abortion care, and a whopping number of even more restrictive bills under consideration in the current legislative session. These rules not only make abortion care less accessible, but they also make all women’s health less accessible by driving providers and clinics out of business. Moreover, Texas’s refusal to expand Medicaid, even though doing so caused it to lose $9 in federal money for every $1 it spent in state money, has left many women without access to sexual and reproductive healthcare. Texas has the second lowest income ceiling for Medicaid eligibility and does not permit childless adults to enroll.
Minors pay a high price for GOP policies. In addition to restrictive laws on abortion and contraceptive care, minors are subject to a woefully deficient system of sex education. Texas does not require schools to offer sex education and, if they choose to offer it, it must focus primarily on abstinence, despite multiple studies showing that this style of sex education produces worse outcomes than comprehensive sex education. The rate of sexual activity among teens is 52% in Texas, but only 46% nationwide. Texas teens thus “outperform” on rates of pregnancy, repeat pregnancy, and STIs.
The bill proposed by Representative Ramos is one small but important step in the right direction. It is the first one filed to repeal the parental consent rule since that rule was first introduced in 1998. While many minors will benefit from involving their parents in decisions about sexual activity and reproductive healthcare, many will not. Research has definitively shown that minors often forego healthcare rather than tell their parents they need or want it. Like the rest of us, they value confidentiality and the ability to act autonomously. Moreover, there is no evidence to suggest that parental involvement laws foster communication between parents and teens nor lead to better decision-making.
Unlike other decisions they might make, a minor who ends up pregnant because of the lack of access to confidential contraceptive services will deal with the consequences of that pregnancy physically, emotionally, and financially. And if she ends up parenting a child as a result, those consequences will last a lifetime. When weighed against the justifications for parental rights, there is simply no contest. A minor who is old enough to become pregnant and parent a child must also be permitted the autonomy to consent to healthcare that might allow her to delay or avoid childbearing—as well as the sex education necessary to be well-informed about the important decisions surrounding sexual and reproductive conduct. The bill introduced by Representative Ramos should be given a full hearing and enacted into law. We owe our young people at least that much.