In a decision that could have far-reaching implications in the legal battle over treatments for transgender children, a fiercely divided federal appeals court on Wednesday refused to reconsider a ruling that backed Alabama’s ban on hormone therapy and puberty blockers for trans minors.
The decision by the full 11th U.S. Circuit Court of Appeals effectively kept in place a ruling by a three-judge panel that overturned a preliminary injunction a district judge had issued blocking the Alabama law.
The decision could be important for a legal battle over a Florida law that prevents minors from receiving hormone therapy and puberty blockers to treat gender dysphoria. At least in part, that is because the Atlanta-based appeals court handles cases from Florida, along with Alabama and Georgia.
Wednesday’s single-paragraph order in the case known as Eknes-Tucker v. Governor of the State of Alabama was accompanied by sharply worded and lengthy opinions on both sides of the issue.
Judge Barbara Lagoa, who wrote the panel decision backing the Alabama law, said in an opinion Wednesday that “whether puberty blockers and cross-sex hormones qualify as ‘life-saving’ treatment — or even ‘medical care’ — is a policy question informed by scientific, philosophical and moral considerations.”
But Judge Robin Rosenbaum, joined by Judges Jill Pryor and Adalberto Jordan, warned that the panel ruling “strips every parent in this circuit of their fundamental right” to access modern medical care for their children.
Lawyers for plaintiffs in the Alabama lawsuit asked for a full court, or en banc, rehearing of the panel’s August 2023 decision. Wednesday’s order did not detail the positions of all 11 judges who took part in the decision to deny rehearing.
But Chief Judge William Pryor was in the majority and wrote an opinion that focused in part on “the doctrine of substantive due process,” which he warned “can empower judges to ‘usurp’ authority that the Constitution leaves to elected representatives,” referring to a U.S. Supreme Court ruling in a case known as Dobbs v. Jackson Women’s Health Organization that overturned decades of legal precedent about abortion rights.
“A right or liberty must be ‘deeply rooted’ in our ‘history and tradition’ to be immune from legislative encroachment,” Pryor wrote, again referring to previous court rulings.
“Difficult questions of morality, parental rights, and medicine are properly left to democracy, and we should not pretend that the Due Process Clauses give unelected judges the authority to second-guess public policy,” he wrote.
In a lengthy concurring opinion, Lagoa, a former Florida Supreme Court justice, expounded on why the three-judge panel was correct to conclude that the plaintiffs “failed to establish the existence of a fundamental right” to make decisions about transgender medical care.
She pointed to part of the panel ruling that found U.S. District Judge Liles Burke’s order blocking the Alabama law “does not feature any discussion of the history of the use of puberty blockers or cross-sex hormone treatment or otherwise explain how that history informs the meaning of the Fourteenth Amendment at the time it was ratified — July 9, 1868.”
Lawyers for the plaintiffs argued that the due process rights in the 14th Amendment gave parents the right to make decisions about their children’s medical treatment. Four dissenting judges Wednesday, Jill Pryor, Jordan, Rosenbaum and Charles Wilson, argued that the appellate court should have addressed the issue.
The panel’s August 2023 ruling “is dangerous and wrong,” Rosenbaum wrote.
“Make no mistake: while the panel opinion continues in force, no modern medical treatment is safe from a state’s misguided decision to outlaw it almost regardless of the state’s reason. Worse still, if a state bans a post-1868 treatment, no patient has legal recourse to provide their child with that necessary, life-saving medical care in this Circuit. And if an individual can’t access a medical treatment because of their sex or transgender status, they are similarly without recourse,” she wrote.
In a dissent, Jordan wrote that the ruling in the Alabama case “necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine (developed in the 1950s), cardiac surgery (first performed in 1983), organ transplants (first successfully completed in 1954), and treatments for cancer like radiation (first used in 1899) and chemotherapy (which started in the 1940s).”
Wednesday’s divided ruling came after a panel of the court on Monday issued a stay of a ruling by U.S. District Judge Robert Hinkle that blocked restrictions in a Florida law that banned puberty blockers and hormone therapy for trans children and made it harder for trans adults to access medical care. The stay effectively means the restrictions can take effect while the appeals court considers an underlying appeal of Hinkle’s decision.
A panel of the court on Aug. 22 also blocked a new federal rule about sex-based discrimination in education programs while a legal battle continues to play out.
Shannon Minter, legal director for the National Director for Lesbian Rights, said the Atlanta-based court is “really in the spotlight right now,” calling the majority’s ruling Wednesday “absurd and dangerous.”
“Are they going to function like a court and follow their own law, or are they just going to rule based on anti-transgender bias?” Minter, whose group is among the organizations representing plaintiffs in the Alabama case, told The News Service of Florida.
Florida and Alabama are among a number of Republican-led states that have passed laws and policies targeting transgender children and adults. The U.S. Supreme Court has agreed to take up a challenge to a Tennessee law restricting hormone therapy and puberty blockers for adolescents.
The Supreme Court “has long recognized parents’ fundamental right over their children,” Minter said.
“This is what happens when courts allow states to target vulnerable minorities,” Minter said of Wednesday’s ruling. “Yes, the intention is to target those minorities, but then they create bad law for everyone.”
–Dara Kam, News Service of Florida
JimboXYZ says
Healthcare has always been about medically necessary procedures for minors/juveniles. Hippcratic oath is about not slicing into healthy flesh for the sake of vanity. There is a reason everyone is born with the parts they were and if they aren’t causing a functional body health crisis, those body parts for limbs & organs are what they are. Sorry they don’t like the way the baby turned out developing over 9 months in the womb. Maybe if they weren’t polluting themselves with alcohol or whatever drug of choice was their recreational habit. Bad enough that the DNA is defective, that to compound that is criminal. The mental illness, deal with that for what anyone can do, which really isn’t much. There’s gotta be a point where those mentally ill need to be told that their body might be their body, but the direction they’re suggesting & electing for self mutilation is a health hazard. Baker Act them like the 33 year old that couldn’t make rational decisions for himself. The intervention by the experts was obviously inadequate & too late as evidenced by FCSO being on site to arrest him. Obviously the parents were too slow to respond before it escalated into that unnecessary drama that day ?
https://en.wikipedia.org/wiki/Hippocratic_Oath#%22First_do_no_harm%22
Ray W. says
The recent judicial recognition of a set of “fundamental” individual rights, without acceptance of any other right recognized under the substantive due process clause, infers that our founding fathers ever agreed to such a set of fundamental individual rights.
The problem with this idea is that there is no complete transcript of the discussions between the members of the Constitution Convention or, for that matter, between the members of the thirteen ratifying conferences. Extensive notes, agreed by historians to have been generated by James Madison, exist, but other more limited correspondences and notes by other attendees also exist, and while some agree with Madison’s records, others do not.
From the accumulation of the varying records there seem to be four different arguments on the subject of individual rights.
Some argued that only the states should hold the political power to determine individual rights. Indeed, at the time of the convention, many states already listed several or many individual rights in their state constitutions, though there were differences from state to state. Therefore, to these members, the federal constitution should make no reference whatsoever to individual rights.
Quite similarly, others argued that the federal constitution should include a clause forbidding any federal establishment of individual rights.
A third group argued that if the proposed Constitution listed individual rights, some future people would argue that the list was complete and that no future governing body had the political power to add to those listed individual rights.
A fourth group argued that a future congress could add individual rights to an already ratified federal Constitution.
In the end, this last option appears to be the one that was adopted, but there seems to be no direct record of such a compromise.
The strongest argument from that time seems to be that the members had come to an impasse and were prepared to end the convention without issuing a proposed constitution. One member then argued that the goal should not be to reach a “perfect” constitution that every member completely agreed to, as that seemed impossible. The goal, he argued, should be to publish an imperfect constitution that every member could live with, flaws and all. Let the people decide whether the imperfect Constitution is good enough or not, he argued. Three days later, the proposed Constitution, flaws and all and lacking language on individual rights, was published.
The one thing that is not disputed today is that during the thirteen ratifying commissions, as many as forty different individual rights were proposed. Some proposed individual rights having nearly identical language from state to state, but many more than ten different individual rights were proposed.
Initially, the Federalists argued that the proposed Constitution, sans wording on any individual rights, was a “take it or leave it” proposition. Eventually, the Federalists relented and agreed to take up the issue in the first Congress. The Constitution was then ratified.
History shows that the first Congress then debated the issue and adopted the Bill of Rights.
A debate on the intent of the founding fathers quickly took root in the legislature. Indeed, in 1796, Madison took to the floor of the House to try to quash the argument that there was any form of original intent. He told his fellow members that even though he had written the Constitution, he did not consider himself to be a founding father, because the proposed Constitution when published had no life; it was a “dead” document. To Madison, only the members of the thirteen ratifying conferences, if anyone, could be considered founding fathers, as they were the ones who breathed life into the dead document.
Thomas Jefferson didn’t even attend the Constitutional Convention, because he was America’s enjoy to the French government. Jefferson wrote the Declaration of Independence, but he had no direct impact on the writing of the Constitution. Neither is Jefferson listed as a member of Virginia’s ratifying conference. By Madison’s standard, Jefferson cannot be considered a founding father of the Constitution, though he was the third President of the United States.
To me, the definition of a founding father for purposes of constitutional inquiry is quite murky.
Make of this what you will. Me? Today’s judiciary has created an imaginary monolithic founding father. It is quite possible that no such unified group of individuals ever existed. Our founding fathers were a fractious group. They reasoned about everything. Many of them could compromise, but many could not. Partisan politics were nasty, with vile accusations all around. Newspapers made money printing opposing views. There are 85 Federalist Papers that were published in certain supportive newspapers, yet many other newspapers published “anti-federalist papers.”
One of my favorite stories is that the Pennsylvania ratifying conference scheduled a vote. Some of the anti-federalists fled Philadelphia. Finding insufficient attendees present for a quorum, the federalists used hunting dogs to find a few anti-federalists in the countryside, who were brought to the meeting and tied to chairs. The members took a head count, announced a quorum, and then ratified the Constitution. Decades later, Lincoln was locked in an upstairs room while the Illinois legislature met downstairs to prepare for a vote on an issue he opposed. He famously climbed out a window and jumped to the ground and fled. Lacking a quorum by one vote, the measure was not passed.
don miller says
they should be treated mentally just as anyone that would needlessly cut off their own arm would be.