Alabama Draws on Supreme Court's New Abortion Decision To Justify Trans Youth Treatment Ban

Alabama's attorney general argues such medical transitioning is not rooted in America’s history and therefore not constitutionally protected.

Parents do not have the power to seek certain medical treatments to assist their trans children in potentially changing their gender because it's not "deeply rooted in [America's] history or traditions," argues the attorney general of Alabama, using language that echoes last week's Supreme Court decision overturning Roe v. Wade.

In this case, Alabama Attorney General Steve Marshall is attempting to overturn a temporary injunction that blocks implementation of a state law (S.B 184) that bans and criminalizes treating trans children with puberty blockers, hormones, or surgeries for the purpose of "transitioning" the child to the opposite sex.

A group of Alabama parents and a pediatrician filed suit to stop the law, arguing it unconstitutionally interferes in the rights of families to decide medical treatments for themselves. The U.S. Department of Justice also intervened in support of the families. Meanwhile, 15 other states filed briefs in support of Alabama, while 22 healthcare organizations filed briefs in support of the families.

In May, a judge with the U.S. District Court for the Middle District of Alabama, Northern Division, sided with the plaintiffs, observing that Alabama officials "failed to produce evidence showing that transitioning medications jeopardize the health and safety of minors suffering from gender dysphoria. Nor do Defendants offer evidence to suggest that healthcare associations are aggressively pushing these medications on minors." Judge Liles C. Burke found that the parents were likely to win on claims that S.B. 184 violates their 14th Amendment Due Process and Equal Protection rights and stopped the state from enforcing much of the law for now as it continues its way through the courts.

Alabama has turned to the U.S. Court of Appeals for the 11th Circuit to get the injunction overturned and submitted an argument on Tuesday that Burke's constitutional interpretations are wrong. While Alabama's response includes discussion of many court cases and precedents in its argument that Burke got the decision wrong, it's getting the most attention because it includes some of the logic from the June 24 Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade, leaving it to individual states to decide the extent that women can abort pregnancies.

Part of the logic of Justice Samuel Alito's majority decision was that "the right to abortion is not deeply rooted in the Nation's history and tradition." That wording didn't originate with the Dobbs decision. You'll find this analysis in Washington v. Glucksberg, a 1997 Supreme Court case where the justices unanimously ruled that Americans do not have constitutional right to physician-assisted suicide. Alito explained in the majority decision in Dobbs that the courts typically use that "history and tradition" analysis to determine whether an unenumerated right exists and is protected by the 14th Amendment. In Dobbs, the majority concluded that abortion does not. And while Alito's opinion was insistent that the Dobbs decision was very particular because abortion results in the destruction of a "potential life," there is really nothing in the decision that would prevent its logic from being used in other cases.

And that's exactly what is happening in Alabama:

The district court thus erred when it found in the Due Process Clause a fundamental right for parents "to treat their children with transitioning medications." Neither the district court nor Plaintiffs even attempted to show how such a right is deeply rooted in our nation's history and traditions, which it obviously is not. Indeed, courts are in one accord that there is no personal substantive-due-process right for anyone—adult or child—to obtain medical treatments deemed dangerous or experimental by the government, so there is no reason to think that parents have a right to obtain those same treatments for their children.

It's a mistake, though, to see Alabama's response solely through the lens of Dobbs. The argument here is that nobody has a constitutional right to any sort of medical treatment if the government deems it dangerous or experimental. There are many, many court cases that back up Alabama here besides just Dobbs. The introduction to the argument initially discusses not transgender medical treatment but medical marijuana use, noting that Alabama lawmakers recently decided to allow marijuana as a treatment for a host of particular illnesses.

Prior to this change, the appeal notes, marijuana use in the state was illegal, regardless of whether patients wanted to use it and regardless of whether doctors wanted to prescribe it. Alabama invokes medical marijuana here to explain that the state has wide authority to decide what we are permitted to do with our bodies and that the courts have historically deferred to lawmakers to establish the framework.

As such, notes Marshall's filing, Alabama's lawmakers have determined that some of this medical transition treatment is too dangerous and experimental and decided not to allow it for children: "The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child. Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments."

Many would argue that parents and children (and not the government) should be making these decisions. But there are many, many court decisions that have determined otherwise. And Alabama's position is that the state gets to call the shots here, even if all the medical experts disagree with them.