(LifeSiteNews) — The Supreme Court of the United States is set to hear arguments this term to determine if prohibitions on gender-confused minors getting mutilating surgeries to remove healthy organs is a “right” found in the Constitution.
United States v. Skrmetti could be the biggest Supreme Court case since the 2022 Dobbs decision, written by Justice Samuel Alito, which affirmed there is no right to abortion in the Constitution. It is the latest test of whether the Supreme Court will interpret the Constitution as written or find a new “right” to something seemingly buried within, as it has done in the past with abortion, contraception, sodomy, and homosexual “marriage.”
The Sixth Circuit Court of Appeals referenced Dobbs 16 times in its September 2023 decision upholding Tennessee and Kentucky’s common-sense restrictions on minors receiving life-altering surgeries.
Chief Judge Jeffrey Sutton, citing Dobbs, said “federal courts must resist the temptation to invoke an unenumerated guarantee to ‘substitute’ their views for those of legislatures.”
He also cited Dobbs in saying courts should not simply defer to “expert consensus,” but rather follow the Constitution.
“As cautioned in Dobbs, courts ‘must guard against the natural human tendency to confuse what [the Fourteenth] Amendment protects with [their] own ardent views about the liberty that Americans should enjoy,’” Sutton wrote further.
Legal experts and advocacy groups hold different opinions on what role Dobbs will play in whether SCOTUS will allow laws protecting minors from so-called “transgender” procedures to stand.
The Court will address this question: “Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity,’ violates the equal protection clause of the 14th Amendment.”
South Texas College of Law scholar Josh Blackman said the Supreme Court’s focus on “equal protection” means Dobbs may not be at play.
“There were two possible ways to challenge the Tennessee Law: the equal protection clause (sex discrimination) and the due process clause (the right of parents to direct the upbringing of their children),” Blackman told LifeSiteNews via email. “The latter issue would have implicated Dobbs, and a right to abortion. But the Court only granted the equal protection question, so I don’t think Dobbs will be at issue.”
However, a Heritage Foundation legal expert sees the situation differently.
“Undoubtedly, the Dobbs v. Jackson Women’s Health decision is going to play into the Supreme Court’s reasoning in the United States v. [Skrmetti] case,” Sarah Parshall Perry told LifeSiteNews in a media statement.
“The reasoning in Dobbs – that highly fraught political issues should not be left to the judiciary where they may pull constitutional rights from the ether of the 14th Amendment’s Due Process Clause but should be left to ‘the people and their elected representatives’ – presents a roadmap for how to resolve [Skrmetti],” Perry stated.
Perry, a former senior counsel at the Department of Education, pointed out 25 states have banned the procedures. “Their people have spoken, and the Court’s best method of resolution is to leave their democratically enacted laws in place,” the senior legal fellow for Heritage stated.
She said states have rights to regulate medical procedures.
Perry stated:
It’s within the state’s long-recognized constitutional authority under the 10th Amendment to regulate state matters like medicine and medical licensing. This should be a no-brainer for the Court. But even if it engages in analysis on the 14th Amendment discrimination question, the states should still emerge victorious. The Supreme Court has never held that “transgender status” is a suspect or quasi-suspect class, so the lowest level of judicial scrutiny applies. And Tennessee clearly has an interest in the safety and protection of minor children in the state.
The American Principles Project agrees Dobbs is important to this case.
Spokesman Paul Dupont told LifeSiteNews the Sixth Court precedent used Dobbs to show “a law can address a medical procedure undergone by only one sex without necessarily amounting to sex discrimination.”
“We believe the Court should uphold Tennessee’s law,” the conservative advocacy group told LifeSiteNews. “It is absurd to argue that anything in the Constitution prohibits states from regulating practices which sterilize and mutilate children for no tangible medical benefit.”
Dobbs could point to how justices might rule
The Dobbs decision, whether it addresses the same legal issues as Skrmetti, still could point to how the Supreme Court could rule.
“Without addressing the precise issue of whether the laws themselves violate the Equal Protection Clause by discriminating against transgender individuals, the Dobbs analysis presents a convenient ‘off ramp,’ and allows disposition of the case simply by relying on the operation of the democratic process,” Perry, the Heritage Foundation legal expert, told LifeSiteNews.
“Nothing is certain, but the Dobbs decision certainly offers hope that the Supreme Court will uphold Tennessee’s law as constitutional,” Dupont, with American Principles Project, told LifeSiteNews.
The current composition of the Supreme Court suggests at least three votes that will probably find a “right” to chemical and surgical mutilation. Justices Elena Kagan and Sonia Sotomayor both ruled in favor of inventing a “right” to same-sex “marriage” and both believe in the “right” to kill a pre-born baby in the womb.
Justice Ketanji Brown Jackson was not on the Supreme Court in 2022 but is likely to hew closely to the “living Constitution” approach favored by her fellow left-leaning justices.
Meanwhile, it would be surprising if Justice Samuel Alito and Justice Clarence Thomas ruled conservatively on abortion, guns, religious liberty, and marriage for decades only to suddenly find a “right” to “transgender” surgeries.
That leaves Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Gorsuch and Roberts both found a “right” to cross-dress at work in the Constitution that had never existed before. Roberts also did not want to reverse Roe v. Wade. That leaves both as potential swing votes, while Kavanaugh and Barrett are still relatively new to the court, leaving their views up in the air.
A hearing date has not been set yet, according to SCOTUSblog.