(LifeSiteNews) — Tennessee is within its right to restrict drugs for gender-confused minors, a Vanderbilt University legal scholar told the Supreme Court.
Professor James Blumstein is an accomplished law professor who has argued in front of the Supreme Court and has written numerous articles about health and medicine law. He submitted an amicus brief in support of Tennessee’s position in U.S. v. Skrmetti, which concerns whether states can prohibit harmful transgender drugs and surgeries for minors. Vanderbilt University is in Tennessee.
The Court will address this question: “Whether Tennessee Senate Bill 1, which prohibits all [so-called] 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.” The Court has yet to set a hearing date.
Professor Blumstein’s argument focuses just on the use of puberty blockers and cross-sex hormones.
These drugs can leave individuals permanently infertile (as would be expected with drugs meant to stop normal pubertal development) and have been linked to bone density loss, suicide risk, and other major medical problems.
“As a general matter, minors are not able to give consent to medical treatments or procedures,” Professor Blumstein wrote in his amicus brief. “When a patient cannot legally give consent, a substitute (surrogate) decisionmaker is typically authorized to make a decision on behalf of the patient.”
The legal scholar details throughout his brief that there is a deep legal history of allowing states to regulate medical procedures. Furthermore, some Supreme Court rulings against the regulation of medical procedures were based on Roe v. Wade. Now that it has been overruled, states have more power to restrict harmful procedures.
Tennessee “protects minors from the risk of relying on surrogate decisionmakers with regard to a particular medical diagnosis—gender dysphoria,” Blumstein wrote. The case also considers Kentucky’s similar prohibition, but other states have similar protections in place as well.
LGBT groups are challenging the protections for minors as an alleged violation of the Equal Protection Clause of the Constitution; however, Blumstein said these arguments are “unavailing.”
“The challenged law targets minors,” he wrote. “Distinguishing between adults and minors is quite routine and surely rational.”
Furthermore, the state can favor one outcome versus another. For example, Blumstein points out that even under Roe v. Wade, a state could fund childbirth but not abortion.
States can also protect minors from making poor medical decisions, Blumstein wrote.
He told the Supreme Court:
Tennessee has determined that the decisionmaking on behalf of minors regarding certain medical procedures is best deferred until the minors can (are legally authorized to) decide for themselves, without the need for a surrogate decisionmaker. Since minors are not legally authorized to decide on their own—i.e., they cannot provide consent— the state has determined that, all things considered, the interests of minors in making their own medical decisions on the medical procedures at issue are best served by deferring the decisions until minors reach maturity and can legally decide for themselves what to do as adults—i.e., provide legally authorized informed consent.
While the Court has struck down some bans on procedures, (i.e. types of abortions), the Dobbs v. Jackson ruling gives states greater leeway, according to Blumstein.
“There is, accordingly, no fundamental liberty interest at stake regarding any patient’s access to medical treatments or specific types of medical procedures; the government now has much greater freedom to legislate regarding specific medical procedures,” he wrote.
LifeSiteNews has separately spoken to several legal scholars and conservative groups about the role of Dobbs in this case, with some suggesting it does give the states greater power to regulate other medical actions.
Blumstein concluded that “the legislature has acted and, in my judgment, within the legitimate, constitutional scope of its authority.”
Legislators have acted “to protect the ability of now-minors to make decisions concerning important matters of healthcare for themselves upon attaining adulthood.”
Military legal scholar compares transgender procedures to ‘eugenics’
Blumstein is not the only accomplished legal scholar to determine states are within their rights to protect kids from dangerous transgender procedures.
In a 2022 law review article, Professor F. Lee Francis, now at Widener University, concluded that states can, under the Constitution, prohibit these procedures. He compared the procedures, due to the possibility of permanent damage to reproductive capability, to eugenics.
Professor Francis is a former federal prosecutor and served as a legal advisor to the Army while on active duty.
He wrote in the Southern Illinois University Law Journal that “children are mentally incapable of understanding the full effect of transition and the consequences of gender transition” procedures.
“I further contend that permitting transgender youth transition [practices] is tantamount to eugenical practices,” Professor Francis wrote. “Additionally, this move requires the clear elucidation of an important distinction: the fundamental right to be limited is parental authority, not [so-called] reproductive rights.”
“More simply, I am contending that parents who subject their children to gender transition [procedures] are, in effect, eugenicizing their minor children.”