MONTGOMERY, Ala.-
Days after the US Supreme Court ruled that states can ban abortion, Alabama seized on the decision to argue that the state should also be able to ban gender-affirming medical treatments for transgender youth.
The case marks one of the first known instances in which a conservative state has tried to apply the abortion decision to other quarters, just as LGBTQ advocates and others feared it would.
Critics have expressed fear that the legal reasoning behind the high court’s ruling could lead to a reversal of decisions involving issues such as gay marriage, birth control and parental rights.
The state is asking a federal appeals court to lift an injunction and allow it to enforce an Alabama law that would make it a felony to administer puberty blockers or hormones to transgender minors to help them assert their gender identity.
In its landmark ruling last Friday, the US Supreme Court said that terminating a pregnancy is not a fundamental constitutional right because abortion is not mentioned in the Constitution and is not “deeply rooted in the history and tradition of this nation”.
In a report filed Monday, the Alabama attorney general’s office similarly argued that gender transition treatments are not “deeply rooted in our history or traditions” and therefore the state has the authority to ban them. Alabama maintains that such treatments are dangerous and experimental, a view that medical organizations dispute.
Shannon Minter, legal director of the National Center for Lesbian Rights, said this is the first case to her knowledge where a state cited the abortion ruling on another issue, but added that “it won’t be the last.” .
Supreme Court Justice Samuel Alito said in a majority opinion that the abortion ruling should not “call into question non-abortion precedents.” But Justice Clarence Thomas wrote that the same legal reasoning should be used to reconsider high court rulings protecting same-sex marriage, homosexual sex and contraceptives.
“It’s no surprise that Alabama and other extremely conservative states embrace that invitation as strongly as possible,” Minter said. “Justice Thomas’s concurrence was a declaration of war on groups already under attack, and we expect the hostility to escalate.”
In the wake of the Supreme Court’s so-called Dobbs decision, Texas Republican 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 passed a new one. The previous one was annulled by the high court in 2003.
On the opposite side of the political spectrum, Massachusetts lawmakers are seeking to increase state protections for gender-affirming care, other than abortion, in reaction to the Supreme Court ruling.
Alabama Attorney General Steve Marshall was not available for comment Thursday, a spokesman said.
Jeff Walker, who has a 15-year-old transgender daughter, said this spring that he felt as if Alabama was attacking families like his with legislation that targets the medication of transgender children and dictates their choice of school bathrooms, locker rooms and sports teams. He said that the State’s argument in this case is worrying for everyone.
“I think everyone should be concerned about the wording of this appeal. By this logic, any health care that the state deems is not in line with its morals or beliefs should be prohibited,” Walker said.
The Alabama case could become an early test of the judges’ position on the scope of the abortion ruling. The appeals court granted the state’s request for an expedited briefing schedule, and a decision could come as soon as this fall.
While Alabama was already appealing the court order in the transgender drug case, the state quickly incorporated the abortion decision into its filing.
Alabama Governor Kay Ivey signed legislation this spring that makes it a crime punishable by up to 10 years in prison to administer certain medications to minors to help them with their gender transition.
In May, a federal judge issued a preliminary injunction blocking the measure and sided with parents who said the law violates their children’s rights and their own rights to direct their children’s health care.
“The interesting thing about Supreme Court decisions is that 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 upheld the right of parents to make medical decisions for their children, even in cases where families don’t want doctors-recommended cancer treatments, Gash said. She said she expects to see more arguments like the one in Alabama arising from the Dobbs decision, and that they could have a major effect on the right to make medical decisions.
“Many of us feel like the railings have fallen completely, because there is no real predictability as to how relevant Dobbs will be to a wide range of issues that affect so many different vulnerable communities,” Gash said.