When it overturned Roe v. Wade in 2022, the Republican-appointed Supreme Court majority rejected the notion that the Constitution’s equal protection clause extended to abortion rights.
Now, Tennessee is citing the Dobbs ruling to the justices in its defense of the state’s ban on gender-affirming medical treatment for minors.
“That is not discrimination,” the state Attorney General Jonathan Skrmetti, a Republican, wrote in a high court brief filed this week. “It is an evenhanded ‘regulation of a medical procedure’ that turns on the reason for the procedure’s use,” the brief continued, quoting from the abortion ruling authored by Justice Samuel Alito in one of several references in Tennessee’s filing.
The legal question in the case is whether the state law, called SB1, violates equal protection. The law 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.”
The state didn’t cite Dobbs out of nowhere. The federal appeals court that sided with the state, prompting Supreme Court review, did as well to support the position that heightened legal protection “does not apply in the context of laws that regulate medical procedures unique to one sex or the other.”
But in seeking to highlight the law’s discriminatory nature, the federal government writes to the justices that it “leaves the same treatments entirely unrestricted if they are prescribed for any other purpose, such as treating delayed or precocious puberty. Thus, for example, a teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.” Oral argument isn’t scheduled yet in the appeal, called United States v. Skrmetti, which could lead to one of the biggest decisions of the term that started this week. A decision is expected by July. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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