Eric J. Neiman, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Portland office, was quoted in Stateline, in “Many Medical Treatments Could Be Affected by Supreme Court Transgender Ruling,” by Nada Hassanein.
Following is an excerpt:
The justices’ reasoning in the recent U.S. Supreme Court ruling upholding Tennessee’s ban on youth gender-affirming care could have much broader implications, perhaps opening the door to state restrictions on health care for other groups of people, experts say.
The ruling could give states leeway to make rules on any other sex-related treatment — potentially affecting people of all genders, according to legal and health policy scholars.
In U.S. v. Skrmetti, three families and a physician argued that a Tennessee law barring the use of puberty blockers and hormone treatments for transgender minors violates the U.S. Constitution’s equal protection clause. They asserted that the law discriminates on the basis of sex, since the state allows the use of similar treatments for cisgender boys and girls with other medical conditions.
The court weighed the argument of whether the law treats people differently, subject to what is called heightened scrutiny. Under this higher level of judicial review, the state must identify an important objective for a law and demonstrate how it helps accomplish that goal.
But the court’s conservative majority last month ruled that the Tennessee ban doesn’t merit such scrutiny because its restrictions are based on age and the medical uses of certain drugs, not sex. Twenty-six other states have similar laws to Tennessee’s.
The Tennessee law “prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex,” Chief Justice John Roberts wrote. “The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex.”
Justice Elena Kagan disputed that view during oral arguments.
“The whole thing is imbued with sex. It’s based on sex,” Kagan said. “You might have reasons for thinking it’s an appropriate regulation and those reasons should be tested and respect given to them, but it’s a dodge to say, ‘This is not based on sex, it’s based on medical purpose,’ when the medical purpose is utterly and entirely about sex.”
Tennessee’s law says the state has a “compelling interest in encouraging minors to appreciate their sex.”
Some legal and policy experts say the court’s reasoning in Skrmetti could allow states to enact further restrictions on abortion, contraception, in vitro fertilization or other health care, particularly sex-specific treatment, sidestepping previous protections. …
Eric Neiman, an attorney at Epstein Becker Green, a law firm focused on health care and employment cases, agreed the ruling “could allow states to regulate all kinds of medical procedures for children and adults.”
Ultimately, Neiman said, the decision indicates “deference to states in decision-making about care that can be provided to children.”
People
Member of the Firm