“Gender-affirming care” is not a right
The Supreme Court will decide if states can regulate transgender medical interventions for minors
With the Supreme Court’s annual term reaching an end, and so many decisions coming out in these final two weeks of June, the court is also leaving us with a cliff-hanger for next year. In one of its final orders before beginning its summer recess, the court agreed to hear the case of United States v. Skrmetti next fall, setting up a showdown over a state’s right to regulate transgender medical interventions for children.
The Biden administration and some parents of the children who wish to continue their gender transition are making a bold claim: that the U.S. Constitution prohibits the states of Tennessee and Kentucky from regulating medical practice—on children—in an area of uncertain science. That is an uphill claim on any of the three points.
First, states have long regulated medical practice. All doctors in the United States must hold a license from a state medical board in order to practice medicine, and they can lose that license for unprofessional or unethical conduct. States also subject doctors to malpractice lawsuits in their courts so that when they make significant mistakes, they have to compensate their victims.
Second, states have a particularly strong interest in protecting vulnerable persons in society, like children. Minors are unable to make major decisions on their own before age 18, a rule we hold as a society, and a rule based on well-established science showing that young brains are not adequately developed. And just as the state has a special concern for the elderly or mentally handicapped, the state educates and protects its children with a solicitude that grants it regulatory power it would not enjoy concerning an adult.
Third, states have greater policy-making flexibility in areas of uncertain science. Judges do not have the same tools as legislatures to collect and consider information, science, public values, and policy concerns. So, courts are rightly cautious to wade into complicated and underdeveloped areas of public policy, rightly preferring to leave those decisions to the elected legislators who are more in touch with current public sentiment.
On all counts, Tennessee and Kentucky start in a strong position. Their position is even stronger when we look to a technical legal question: Do the plaintiffs have a right that is deeply rooted in the history and tradition of the country? At a certain broad level of generality, of course, the answer is yes. The right of parents to direct the upbringing of their children is well-established in the history and tradition of this nation, and conservatives have been among the foremost champions of that tradition when the left has tried to strip children from their parents in favor of progressive public education or other causes.
But at any more granular level, the answer comes into sharper relief. Consider, as a comparison, the practice of some school districts of not informing parents when their children undergo a “social transition” between genders at school. The right of parents to basic information about their children’s performance and health in school is well established and accepted. Put differently, we would all recoil at the idea that school districts can intentionally hide important information from parents. It’s equally straightforward to say that the Constitution has not historically protected the right of parents to subject their children to unproven, experimental medical treatments (indeed, it likely does not protect the right of adults to subject themselves to experimental medical treatments).
Decades ago, the U.S. Supreme Court took up a question of trendy science in the case known as Buck v. Bell in 1927. In its decision, the court upheld a eugenics-inspired sterilization law by declaring: “Three generations of imbeciles are enough.” That case is widely regarded as one of the preeminent disasters on the court’s historical record, right up there with Plessy v. Ferguson. The court similarly grappled with, and was ultimately embarrassed by, its embrace of trimester science in Roe, which was dumped even by its supporters in favor of viability, which itself proved unworkable as the science kept evolving. In this case, the court should learn its lesson and leave the science and policy to the legislatures.

These daily articles have become part of my steady diet. —Barbara
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“Three generations of imbeciles are enough.”
Amen!
The same should be said about the past 4 years.
We (still) have the chance to make a change.
We don’t live in Communist China (yet).
Trump issued a clarion call for Christians to be engaged by getting out the vote, protecting the integrity of the vote and to “GO VOTE”...
“Because we're not going to have a country left if we don't do it. That's for sure."
Who’s in for the big win?
“The Constitution has not historically protected the right of parents to subject their children to unproven, experimental medical treatments (indeed, it likely does not protect the right of adults to subject themselves to experimental medical treatments).”
Unfortunately, while “the Constitution has not historically protected” the unwise, ill-advised and harmful-lethal use of “unproven, experimental medical treatments” on children (indeed, even adults)… the sad fact of the matter is that our entire nation has now been inoculated against these concerns.
In 2021 — post-Trump America — new President Biden crafted novel “constitutional” orders, during a novel “pandemic.” Biden used his bully pulpit to bully Americans into using novel so-called vaccines made of “unproven, experimental medical treatments.” EUA means “Emergency Use Authorization” for a reason.
In 2021, naive American adults raced to CVS and churches to inject themselves AND their children with “unproven, experimental medical treatments” by the millions. They rolled up their sleeves w/ religious excitement… believing Biden “you won’t get Covid” & feeling threatened by Biden’s “executive orders” & worried about “losing jobs” & embarrassed by not being “all in this together” & encouraged by pastor Piper to “love your neighbor” by injecting yourself w/ who-the-heck knows what & his strange-fire interpretation of “submitting to authority” @ Romans 13.
In 2021, Federal agencies weaponized American’s herd instinct to get herd immunity. The fallout from this pandemic push— besides the fact the vaccine did not keep us from getting, shedding or spreading Covid — was a reshaping of the Republic in unconscious and unconstitutional ways. People are prone to say, “I’m so glad that’s all behind us now!!” But people are now also prone to follow federal “guidelines for your safety” like lemmings.
In 2021, Covid was used against the American “collective” and we were conditioned to comply — at all costs — with “the law” coming down from our “Dear Leaders” … no matter how half-brained, heinous or harmful.
We must wake up and stand up.
Don’t sit back, relax and rely on what was “historically protected” by the Constitution.
We’re in the wild west of the “New Normal.”
There’s a new sheriff in town and Biden is “building back better” with a wonderful plan for your life… “I’m not kidding, man.
This is for real. I’m not being hyperbolic.
I mean it!”
Vote for Trump!
“In this case, the court should learn its lesson and leave the science and policy to the legislatures.”
He’s not wrong, but Suhr stops woefully short of saying what needs saying:
(1) What “the court should learn” may be a far cry from what the court “could” do. No one knows what the court will do. We do know SCOTUS has a far better chance at getting it right, thanks to Trump’s legacy of legal influence w/ the 3 justices he picked as POTUS. Thank God.
(2) Trump preached against Biden’s sick & sinful transgender trend in his speech a few days ago: “His MARXIST administration is pushing radical GENDER ideology into every school.”
(3) Vote for Trump!
“The Biden administration and some parents of the children who wish to continue their gender transition are making a bold claim: that the U.S. Constitution prohibits the states of Tennessee and Kentucky from regulating medical practice—on children—in an area of uncertain science.”
Vote for Trump!
Or else…
+ You’ll get more of these “bold claims” from Biden and his radical, damnable Democrat demons who are hell- bent on reconstructing the Constitution and Courts to control and kill Americans.
+ You’ll get more of these ungodly agents of leftist government bringing reams of novel case law to the bench, striving to string up state’s rights, in a frenzy of ever-increasing FEDERAL power.
We have a Christian choice to make.
We have a Christian call to trample tyranny.
We have a Christian duty to protect life.
Daniel would agree, wouldn’t he?
After all, he works @ Federalist Society.
He is a member of Christ Church Mequon.
He is an Eagle Scout.
He loves spending time with his wife & 2 sons.
Surely Suhr has enough invested to vote Trump.
Even if he holds his nose.
Just to beat back Biden’s crushing attack against his own family & church… and mine.