Jun 28, 2022 - Politics & Policy

Alabama cites Roe decision in urging court to let state ban trans health care

Picture of Alabama Attorney General

Alabama Attorney General Steve Marshall. Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images

Alabama Attorney General Steve Marshall (R) on Tuesday urged a federal court to drop its block on the state's ban on gender-affirming care for trans youth arguing such care is not protected by the Constitution.

Driving the news: Marshall used the U.S Supreme Court's decision overturning Roe v. Wade to suggest that since the court rejected the idea that abortion cannot be protected under the 14th Amendment because it's not "deeply rooted" in the nation's history, the same could be said about access to gender-affirming care.

Context: Alabama's S.B. 184 makes it a felony for any person to "engage in or cause" specified types of medical care for trans youth, threatening criminal prosecution to doctors, parents, guardians and any else who attempts to provide that care to a minor.

  • Anyone who violates this law, which was enacted in April this year and blocked in May, could face up to 10 years in prison and a fine of up to $15,000.

The big picture: Prior to Roe being overturned, abortion access was protected under the due process clause of the 14th Amendment. There are several constitutional rights that are currently protected in that same way, those include same-sex relationships, marriage equality and access to contraceptives.

Yes, but: Justice Brett Kavanaugh, who also joined the majority, wrote in his own concurrence that the decision to overturn Roe was only abortion, saying that "[o]verruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents."

Details: "[N]o one — adult or child — has a right to transitioning treatments that is deeply rooted in our Nation's history and tradition. The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child," Marshall wrote in a court document.

  • "Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments."
  • "The Constitution reserves to the state — not courts of medical interest groups — the authority to determine that these sterilizing interventions are too dangerous for minors."

Reality check: Medical organizations, including the American Academy of Pediatrics, the American Psychological Association and the American Medical Association, have condemned legislation to restrict gender-affirming medical care, saying it could have a detrimental effect on the mental health of transgender youth.

  • Over two-thirds of LGBTQ youth said recent debates over state laws that target transgender people have negatively impacted their mental health, according to a poll by the Trevor Project, which provides crisis intervention and suicide prevention services to LGBTQ youth.
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