Will The Court GVR The Skrmetti Parental Rights Petition In Light Of Mahmoud?

The substantive due process question remains.

On Wednesday, the Court decided United States v. Skrmetti. This petition, brought by the Biden DOJ, only presented the question whether Tennessee's law violated the Equal Protection Clause. DOJ did not petition on the substantive due process issue. Indeed, under 42 U.S.C. § 2000h-2, the Attorney General only has the authority to intervene in an equal protection case.

Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.

The ACLU, which represented the plaintiffs, petitioned on both due process and equal protection in the case known as L.W. v. Skrmetti. The ACLU's petition remains pending, even though counsel for the ACLU was permitted to argue.

What happens next? Mahmoud v. Taylor is awaiting a decision. If Mahmoud addresses the due process clause with regard to parental rights, the Court might GVR the ACLU's Skrmetti petition.

In other words, Skrmetti may be far from over.

Comments

[A Japanese Student]

The petitioner in Mahmoud did not raise due process arguments before the Court.

[MollyGodiva]

"Parental rights" meant nothing in Skrmetti .
"Parental rights" will dominate Mahmoud v. Taylor.

This makes perfect sense because "Parental rights" is a valid argument only when it benefits Republicans.

[Nick Gillespie's Jacket]

Could be wrong, but I doubt even a pro parental rights SCOTUS would go so far as extending the right to irreversible (or near-irreversible) procedures, like full face tattoos or sleeves on a kid, much less mastectomies of non-cancerous breasts. Right to homeschool or opt out of sec ed? I can see. Getting a forked tongue or horn implants? Unlikely.

[wvattorney13]

I think that during my career I've written many a brief and been a staunch defender of parental rights. But this is an extraordinarily odd place to throw down that flag.

The state can regulate what parents are allowed to do to their children. You go too far it is abuse and/or neglect and they can terminate parental rights.

I think when you get to the point of maiming your children you have crossed over that line from a reasonable parent to an abusive one.

[Supremacy Claus]

Which is a worse form of physical abuse? Some broken ribs during the beating of a child or the permanent loping off of organs by sicko woke doctors enriching themselves exploiting gullible kids with mental problems like autism or depression. What would happen if one did that to a dog?

[ikaritenshi]

Well, you aren't allowed to beat your kids too badly, almost every state has law regarding the welfare of children. So, the state has always had and interest and has always exercised that interest.

so, I don't see how they lose, when the evidence about the treatments is what it is.

I'm not aware that there is any kind of heightened scrutiny involved. so, I don't see how the state loses in the second Skrmetti case.

Mahmoud is such a different context, that I do think it is Distinguishable from Skrmetti.

[ReaderY]

Whichever case it gets decided in, the outcome of the parental rights argument strikes me as straightforward. Parents have never had a right to give their children treatments that are illegal. Lawsuits demanding the right to try illegal or unapproved treatments have been fairly common, and argued on multiple grounds. They have universally lost. Parental rights to decide their children’s medical care include only the right to choose among legal treatments.

[wvattorney13]

Agreed. States universally have the power to regulate medical practice. They can say that this category of treatment for these reasons is good medicine. These treatments for these reasons are quackery and not legitimate medicine.

They don't have to cede their power to so called experts. Even if most doctors believe that a certain treatment is proper, a state, through its elected representatives can still take a position that such treatment is unethical or immoral.

And just like how they can tell parents you cannot give your young kids whiskey or tattoos, they can say that these certain procedures are off limits and illegal for parents to subject their children.

As I said, I believe in a free society that typically parents should be the ones making the decisions when it comes to their own children. But in the area of mutilating your children, that is where the government has a legitimate role of stepping in.