Alabama is using the case that ended Roe to argue it can ban gender-affirming care
MONTGOMERY, Ala. — Days after the U.S. Supreme Court ruled that states can prohibit abortion, Alabama has seized on the decision to argue that the state should also be able to ban gender-affirming medical treatments for transgender youths.
The case marks one of the first known instances in which a conservative state has tried to apply the abortion ruling to other realms, just as LGBTQ advocates and others were afraid would happen.
Critics have expressed fear that the legal reasoning behind the high court ruling could lead to a rollback of decisions involving such matters as gay marriage, birth control and parental rights.
The state is asking a federal appeals court to lift an injunction and let it enforce an Alabama law that would make it a felony to give puberty blockers or hormones to transgender minors to help affirm their gender identity.
Alabama seizes on language about U.S. history and tradition
In its historic ruling on June 24, the U.S. Supreme Court said terminating a pregnancy is not a fundamental constitutional right because abortion is not mentioned in the Constitution and is not “deeply rooted in this nation’s history and tradition.”
In a brief filed Monday, the Alabama attorney general’s office argued similarly that gender transition treatments are not “deeply rooted in our history or traditions,” and thus the state has the authority to ban them. Alabama contends such treatments are dangerous and experimental, a view disputed by medical organizations.
Shannon Minter, legal director of the National Center for Lesbian Rights, said this is the first case he is aware of in which a state cited the abortion ruling on another issue, but added, “It won’t be the last.”
Supreme Court Justice Samuel Alito said in the majority opinion that the abortion ruling should not cast “doubt on precedents that do not concern abortion.” But Justice Clarence Thomas wrote that the same legal reasoning should be used to reconsider high court rulings protecting same-sex marriage, gay sex and contraceptives.
“It is no surprise that Alabama and other extremely conservative states are going to take up that invitation as forcefully as they can,” Minter said. “Justice Thomas’ concurrence was a declaration of war on groups already under attack, and we expect the hostility to be escalated.”
In the aftermath of the Supreme Court’s so-called Dobbs decision, Republican Texas Attorney General Ken Paxton, in an interview with NewsNation, did not rule out defending a state law against gay sex if the GOP-controlled Legislature were to approve a new one. The previous one was struck down by the high court in 2003.
On the opposite side of the political spectrum, Massachusetts lawmakers are looking to increase state protections for gender-affirming care, in addition to abortion, in reaction to the Supreme Court ruling.
Alabama Attorney General Steve Marshall was unavailable for comment Thursday, a spokesman said.
The state has made other moves that affect trans children and their families
Jeff Walker, who has a 15-year-old transgender daughter, said this spring that it felt as if Alabama were attacking families like his with legislation targeting transgender kids’ medication and dictating their choice of school bathrooms, locker rooms and sports teams. He said the state’s argument in this case is worrisome for everyone.
“I think everyone should be concerned by the wording of this appeal. By this logic, any health care the state feels isn’t in line with its morals or beliefs should be banned,” Walker said.
The Alabama case could become an early test of where judges stand on the scope of the abortion ruling. The appeals court granted the state’s request for an expedited schedule for submitting briefs, and a decision could come as early as this fall.
While Alabama was already appealing the injunction in the transgender medication case, the state quickly incorporated the abortion decision into its filing.
Alabama Gov. Kay Ivey this spring signed the law making it a crime punishable by up to 10 years in prison to dispense certain medication to minors to help with their gender transition.
A federal judge in May issued a preliminary injunction blocking the measure, siding with parents who said the law violates their children’s rights and their own rights to direct their youngsters’ medical care.
“What’s interesting about Supreme Court decisions is they tend to have a life of their own,” said Alison Gash, a professor of political science at the University of Oregon.
Courts have generally supported the right of parents to make medical decisions for their children, including in cases where families don’t want to get cancer treatments recommended by doctors, Gash said. She said she is expecting to see more arguments like Alabama’s arising out of the Dobbs decision, and they could have a major effect on the right to make medical decisions.
“A lot of us feel like the guardrails have completely fallen off, because there is no real predictability about how relevant Dobbs will be to a whole wide range of issues that affect so many different vulnerable communities,” Gash said.