by Linda Kate Gilbreath*

Since Carey v. Population Services International,1 minors under the age of sixteen have had constitutional protections for their access to contraceptives. Protections for adults’ access to contraception remain without question after Dobbs v. Jackson Women’s Health Organization,2 which explicitly limited its holding to the removal of abortion rights. On its face, Carey seems to have predicated minors’ right to access contraception on their then-existing right to access abortion services as part of their authority to make decisions to bear or beget a child. This Contribution argues that minors’ access to contraception is still protected. If we view “bear or beget” as a bundle of sticks, Dobbs took away the abortion stick. It did not take away the whole bundle—even for minors. Furthermore, states requiring that minors either meet strict categories of eligibility or get parental consent to access contraceptives impermissibly infringe on minors’ constitutional right to access contraception and would not pass strict scrutiny.

Supreme Court jurisprudence has established a fundamental right to access contraception and has thereafter extended that right to minors. The basis of the constitutional right to access contraception and the origin of privacy rights come from Griswold v. Connecticut.3 Eisenstadt v. Baird then clarified this as a privacy right in decisions whether to “bear or beget a child” and extended the right to unmarried adults.4 The right to access contraception was officially extended to minors in Carey v. Population Services International.5 The Carey Court reasoned this extension in large part on the basis that minors had been determined to have a constitutional right to abortion at that time, not subject to blanket bans or parental consent requirements, so logically minors must also be able to prevent pregnancy in the first place.6 The Court predicated this finding on the rationale that “the State’s interests in protection of the mental and physical health of a pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive.”7

Dobbs v. Jackson Women’s Health Organization overruled the fundamental right to abortion,8  but minors’ right to access contraception still stands, even though it was established partially on their access to abortion services. While Justice Thomas’s concurrence suggests that Dobbs may be a first step in doing away with Substantive Due Process doctrine altogether,9 the majority opinion makes a crystal-clear distinction between abortion and the other unenumerated rights that Supreme Court jurisprudence has established, calling abortion “critically” and “fundamentally” different from “rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage.”10 The exceptional element the Court identified about abortion pertains to “destroy[ing] a ‘potential life’”—something contraception does not do.11

If you take Carey at surface level, one might argue that the abrogation of abortion rights in turn revokes constitutional protections for minors’ access to birth control, given that the right to contraception was partially founded in the right to abortion. However, looking further into the logic employed in Griswold’s progeny, including Danforth and Carey, it becomes clear that the central holding of Carey, that minors have a substantive due process right to obtain contraception,12 still stands. Griswold and its progeny are about privacy in decisions whether to “bear or beget a child.”13 Originally, this phrase was understood to pertain to contraception only. After Roe v. Wade, the Court began to understand the “bear or beget” right to pertain to contraception and abortion, and the Carey court discussed “the right to privacy in connection with decisions affecting procreation.”14 “Bear or beget” is limited by Dobbs, not abrogated. The liberty interests in Griswold and Roe are, of course, closely aligned. But one can exist without the other.

Taking a step back to one of the first logic rules every law student practiced while studying for the LSAT: [if A then B] does not mean [if not A, then not B]. Similarly, if minors have access to abortion, of course they must have access to contraception. But adults had the right to access contraception before they had the right to abortion, so the contraception right necessarily must be able to exist without the abortion right. The Carey Court said because minors had the right to abortion, a fortiori they must have the right to access birth control too.15 But Carey does not require Danforth, it was just an easy case because of it.  Danforth cited a long history of upholding minors’ rights, explaining that “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”16 Carey necessarily endorsed this logic employed in Danforth in extending the constitutional right of access to contraceptives to minors—logic that still stands with regards to birth control access.17 Dobbs does not negate any logic about extending existing rights to minors, but is instead specific to the unique issue of the potential for life.18 If we view “bear or beget” as a bundle of sticks, Dobbs took away the abortion stick. It did not take away the whole bundle—even for minors.

Given that minors’ constitutional right to access contraceptives still stands, state laws limiting teens’ access to birth control or other family planning services must pass strict scrutiny,19 and those that impose strict categorical restrictions on which minors can access them push the limits of unconstitutional burdens. The Due Process Clause of the Constitution protects individuals from unjustified intrusions on their liberty.20 Where a fundamental right, such as this due process right, is burdened, the court must employ strict scrutiny analysis and determine whether the statute in question is narrowly tailored to achieve a compelling government interest; only then can it stand.21 Certain states, such as Florida,  require parental consent for minors who are not married, parents themselves, pregnant, or facing serious medical concerns when those individuals seek to access contraception.22

Consent requirements for minors pose a tricky constitutional problem, putting parents’ rights in direct conflict with their children’s. The Supreme Court has upheld parental discretion rights in many instances.23 The Court has also upheld certain instances of more strict regulation on children than adults in order to protect children’s welfare.24 A common thread in these cases is “the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”25 Distinct from cases where states need to protect kids from making rash decisions on their own, the minors whose rights are burdened by parental consent requirements, like the one in Florida, would be aided in their judgment by the very medical professionals these statutes seek to regulate, and their decisions regarding whether to use contraceptives are completely reversible, unlike decisions regarding abortion.26 Parental consent requirements put parental discretion at odds with their children’s constitutional rights.27 However, courts have held that minors’ rights in the case of access to contraception outweigh their parents’ rights and require additional avenues to access: the state cannot override minors’ fundamental right to make decisions to bear or beget a child by giving their parents veto power.28 This idea, applied to contraceptives, has found widespread support among circuit courts.29 And, critically, the Sixth Circuit has explicitly held that removing parental consent requirements does not encroach on parents’ own constitutional rights.30

Minors discussing contraception with their physicians do not need state—or parental—protection from themselves. Requiring parental consent would not pass strict scrutiny, because states like Florida do not have a compelling interest to which these statutes are narrowly tailored. Restricting minors’ privacy rights where adults’ privacy rights are protected requires some additional state interest “not present in the case of an adult” to restrict minors’ privacy rights where adults’ rights are protected.31  One potential state interest could be protecting minors’ health. However, parental consent has nothing to do with the safety of “nonhazardous contraceptives” and so cannot be narrowly tailored to meet that end.32 Another potential state interest in requiring parental consent for birth control access may be discouraging promiscuity among teens. However, the Supreme Court has determined that discouraging sexual activity by raising the consequences is irrational.33 Inhibiting minors’ ability to engage in safe sexual activity cannot be the justification for an intrusion on minors’ rights. The Court in Danforth noted that the lower court had found “safeguarding the authority of the family relationship” to be a compelling state interest that may support parental consent requirements for abortion.34 However, the Supreme Court further reasoned that if the State’s purpose is about preserving parental authority and the family unit, allowing parental veto for something the minor wants to do will likely generate fissures in the family unit rather than strengthen it.35 Requiring parental consent from a parent who refuses to give it would disrupt family harmony, not preserve it. The statute is not narrowly tailored to achieve this purpose. Simply put, there is not a good reason (a “compelling state interest”) to allow parental vetoes to foreclose minors’ constitutional right to access contraception and family planning services.

* Linda Kate Gilbreath is a J.D. Candidate (2024) at New York University School of Law. This Contribution is a commentary on the problem at the 2023 Domenick L. Gabrielli National Family Law Moot Court Tournament, hosted by Albany Law School. One of the questions presented was whether a state statute limiting minors’ access to contraception absent parental consent violates their liberty interest. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. 431 U.S. 678, 693 (2010) (plurality).

2. 597 U.S. 215 (2022).

3. See generally, 381 U.S. 479 (1965) (establishing the penumbra theory underlying a constitutional right of privacy).

4. 405 U.S. 438, 453 (1972).

5. 431 U.S. 678, 693 (2010) (plurality).

6. Id. at 694 (citing Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976) (extending the right to abortion, previously held only by adults, to minors) (abrogated in Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022)).

7. Id.

8. See generally, 597 U.S. 215 (2022) (overturning Roe v. Wade, 410 U.S. 113, and abrogating constitutional protections for abortion access).

9. Id. at 331–32 (Thomas, J., concurring). No other justice joined Justice Thomas’s concurrence.

10. Id. at 231.

11. Id. at 262 (quoting Roe, 410 U.S. at 159 and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 852 (1992)).

12. Carey, 431 U.S. at 693 (plurality).

13. Eisenstadt, 405 U.S. at 453 (using the phrase “the decision whether to bear or beget a child” for the first time, in a case pertaining to the distribution of contraceptives).

14. Carey, 431 U.S. at 693; see also Roe, 410 U.S. at 169–70 (Stewart, J., concurring) (“As recently as last Term, in Eisenstadt v. Baird . . . we recognized ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”) (internal citation omitted).

15. Carey, 431 U.S. at 694.

16. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74 (citing Breed v. Jones, 421 U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); and In re Gault, 387 U.S. 1 (1967)).

17. See Carey, 431 U.S. at 694 (reasoning that state interests around decreasing sexual activity are not sufficiently strong to undermine access to contraceptives).

18. Dobbs, 597 U.S. at 231.

19. See Carey, 431 U.S. at 688.

20. U.S. Const. amend. XIV.

21. Griswold v. Connecticut, 381 U.S. 479, 497 (1965).

22. See Fla. Stat. Ann. § 381.0051 (West) (requiring doctors to have parental consent to provide minors with family planning services if they are not married, pregnant, parents themselves, or likely to “suffer probable health hazards”).

23. See generally, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (protecting parents’ right to choose how their children are educated); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (similar).

24. See generally, Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding child labor laws as an exercise of parens patriae power).

25. Belloti v. Baird, 443 U.S. 622, 635 (1979) (striking down a statutory parental consent requirement for minors seeking abortions) (abrogated in Dobbs, 597 U.S.).

26. See T.H. v. Jones, 425 F. Supp. 873, 882 (D. Utah 1975) (striking down a Utah state law requiring parental consent for contraception access).

27. Id. (“In appropriate cases, the state’s interest in enforcing parental prerogatives must yield to the fundamental rights of minors.”) (citing Rowan v. Post Office Dept., 397 U.S. 728, 741 (1970) (Brennan, J., concurring)).

28. See Danforth, 428 U.S. at 74 (striking down parental consent requirements for abortion).

29. See, e.g., Cnty. of St. Charles, Mo. v. Missouri Fam. Health Council, 107 F.3d 682, 685 (8th Cir. 1997) (citing Does v. Utah Dep’t of Health, 776 F.2d 253, 255–56 (10th Cir. 1985); New York v. Heckler, 719 F.2d 1191, 1197 (2d Cir. 1983); and Planned Parenthood Fed., Inc. v. Heckler, 712 F.2d 650, 665 (D.C. Cir. 1983)).

30. See Doe v. Irwin, 615 F.2d 1162, 1168 (6th Cir. 1980) (rejecting the argument that striking down parental consent requirements for contraception prescriptions means “an outsider has usurped [parents’] rightful position of authority over their children”).

31. See Danforth, 428 U.S. at 75.

32. See Carey, 431 U.S. at 690 (“Insofar as [the statute] applies to nonhazardous contraceptives, it bears no relation to the State’s interest in protecting health.”) (citing Eisenstadt v. Baird, 405 U.S. 438, 450–52, 463–64 (White, J., concurring in result)).

33. Eisenstadt, 405 U.S. at 448 (“It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication . . . .”).

34. Danforth, 428 U.S. at 73–74 (quoting Planned Parenthood of Central Mo. v. Danforth, 392 F. Supp. 1362, 1370 (E.D. Mo. 1975)).

35. Id. at 74–75.