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The slippery slope of judicial review and perceived wins in the courts.
On July 8, 2023, the Sixth Circuit Court of Appeals issued a stay on the district court’s prior ruling on Tennessee’s Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity. Meaning, whereas the court had blocked the law protecting minors from surgeries or the use of puberty blockers designed to impact the nature of their biological sex, the appellate court has now preliminarily allowed the enforcement of this law pending a hearing and appellate ruling by September 30, 2023, per the court’s order.
For today, minors are protected from these procedures in the state of Tennessee. But in reading through the Sixth Circuit opinion and considering their reasoning, I have a great deal of concern for the future of this law, parental rights, our protections per the Constitution, and continued deference to the court and federal agencies as quasi-legislative bodies.
Let’s start with the good news.
On one hand, the court speaks of the limitations of its power per Article III of the US Constitution and that is a refreshing statement to read. Oftentimes, we see that rulings from the courts have a sweeping impact on the law and how those laws are applied to broad swaths of individuals even though a court’s power should not extend beyond the case or controversy over which it is presiding. And here, the court recognizes that it is adjudicating the rights of only nine (9) individuals, and not on behalf of millions. And for that, I am thankful.
Additionally, the court harkens to states’ rights and opines on the interests of the state in protecting the welfare of children and regulating the medical profession within its boundaries. Additionally, the Sixth Circuit cautions the court against the abuse of federal power and ruling beyond the jurisdiction of the court, pretending to use the power of the Constitution to breach a state’s sovereign right to legislate on a variety of issues where the welfare of its citizens are concerned. Again, I applaud these sentiments of the court.
But now for the bad news.
Part of the court’s rationale for defending Tennessee’s law in terms of its ability to regulate medical procedures is that, currently, FDA regulations do not contradict the state’s prohibitions on the use of puberty blockers and surgery for “gender-affirming” care. In other words, the state is only given the power to regulate these procedures on the basis that the FDA has not prevented it from doing so. This is an incredibly slippery slope and also not a strong foundation to lean upon in terms of continuing to protect children from this national agenda as public sentiment (and especially the sentiment of the medical community) continues to shift.
But the court does not leave it there. It goes further to jeopardize the rights of individuals per the Constitution and in very poignant language, subjects the rights secured in the Constitution to be dependent upon the whims of an administrative three-letter regulatory agency.
This is perhaps the most dangerous statement made in this entire opinion of the court and certainly has implications far beyond the current issue at hand. Quite simply, the suggestion is that the FDA is more powerful than the Constitution in determining the rights of individuals.
Right now, this plays in our favor. Because the FDA does not approve of the use of drugs or surgery for “gender-affirming” care, parents do not have rights per the Constitution to require “gender-affirming” treatment for their children, or minors under their legal charge. So the question here is, “What happens if and when the FDA does approve these treatments for transgender care?” Will this court now affirm that parents have a constitutional right to mutilate their children?
Do you see the dilemma here? We are on incredibly shaky ground. Rights are not being protected on the basis of natural law, common law rights, or the real facts of what it means to be human, but simply because the FDA has not spoken on the issue.
Conversely, if parental rights in making medical decisions for their children simply hinge on FDA regulations and not based on natural law, then what implications might that have in giving states the power to mandate care for minors based on those FDA regulations regardless of the wishes of the parent? This knife will cut both ways.
Lastly, while the Sixth Circuit Court seems to believe that the judicial power of the district court is limited in extending rights to transgender individuals by creating a quasi-suspect class, it does not seem to concern itself with the power of an appellate court or the Supreme Court to do so. In other words, this court does seem to believe that it has the ultimate power to legislate from the bench and create additional protected classes of individuals without Congressional action if it chooses to do so.
This is dangerous footing on which to rest our case and again, leaves the state’s ability to protect children in the hands of the court and in the federal government. We cannot be okay with this. This is a foundation for future disaster.
Right now, we have a very slim win in the courts in terms of Tennessee’s ability to protect children from this transgender agenda. But let me be clear, that win is currently based on very shaky ground and opinions of the court that could prove to be disastrous in the near future as this issue of our natural human biology continues to play out in the political arena.
On a positive note, this is only a preliminary injunction and not the final ruling of the Sixth Circuit on this issue. Meaning, their reasoning is subject to change as they make their final ruling which we expect by September 30, 2023, set by the court’s own timeline.
What we would hope for in that final ruling is a defense of Tennessee’s law to protect minors based on natural law and a simple common law understanding of what it means to be men and women, the duty of parents to protect their children from harm, and the power of states to protect the life and liberty of children as individuals. Subjecting these protections to the regulatory schemes of the FDA and the consensus of the medical community would be a disastrous outcome.
We pray for wisdom for our state’s Attorney General as he makes these arguments in hopes that life and liberty are defended on the truth and not a perversion of the created order.
See the full preliminary injunction of the Sixth Circuit here.
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Gary Humble
Gary Humble