Supreme Court Justice Sonia Sotomayor is under fire today for seemingly dismissing medical concerns over the risks of puberty blockers and gender surgeries for minors with a comparison to taking Aspirin. In the oral arguments in United States v. Skrmetti, Sotomayor pointed out that there are risks to any medical procedure or drug. However, the analogy belittled the concerns of many parents and groups over the research on the dangers of these treatments. It also highlighted how the Biden Administration and liberal justices were discarding countervailing research inconveniently at odds with their preferred legal conclusion.
The Biden administration is challenging Tennessee’s law banning gender-changing drugs and procedures for minors. That state cites studies that indicate serious complications or risks associated with the treatments for children.
While the conservative justices acknowledged studies on both sides of the debate over risks, the liberal justices seemed to dismiss studies that were inconsistent with striking down the law as a violation of the Equal Protection Clause of the 14th Amendment. That issue produced a difficult moment for Solicitor General Elizabeth Prelogar when Supreme Court Justice Samuel Alito confronted her about statements made in her filing with the Court.
Alito quoted Prelogar’s petition to the Court that claimed that there was “overwhelming evidence” supporting the use of puberty blockers and hormone treatments as safe with positive results for children.
Justice Alito, however, cited extensive countervailing research from European countries showing significant risks and potential harm. The World Health Organization has recognized these risks and lack of evidence supporting these procedures and researchers in Finland recently published a study showing that suicides among kids with gender dysphoria are extremely rare in contradiction to one of the common arguments made for adolescent treatment.
Alito also cited the United Kingdom’s Cass Review, released shortly after her filing. The Cass study found scant evidence that the benefits of transgender treatment are greater than the risks. He then delivered the haymaker: “I wonder if you would like to stand by the statement in your position or if you think it would now be appropriate to modify that and withdraw your statement.”
American Civil Liberties Union attorney Chase Strangio (who has previously argued that children as young as two years old can identify themselves as transgender) seemed to later acknowledge that very few gender-dysphoric children actually go through with suicide, but insisted that the procedures reduce suicidal inclinations.
Justice Sotomayor seemed intent on defusing the problem with the opposing scientific research in her exchange with Tennessee Solicitor General Matthew Rice. In his argument, Rice stated that “they cannot eliminate the risk of detransitioners, so it becomes a pure exercise of weighing benefits versus risk. And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left to the legislature.”
That is when Sotomayor interjected: “I’m sorry, counselor. Every medical treatment has a risk — even taking Aspirin. There is always going to be a percentage of the population under any medical treatment that is going to suffer a harm.”
According to studies, aspirin can have potential side effects that are largely quite mild. The studies cited by the state are raising far more serious risks and medical changes, including irreversible double mastesctomies, genital surgeries, sterilization and infertility. There can also be long-term effects in bone growth, bone density, and other developmental areas. Those risks have led European countries to change their policies on the treatments pending further study.
The point is not that the justices should resolve this medical debate, but that it is properly resolved elsewhere, including in the state legislative process.
Sotomayor’s aspirin analogy seemed gratuitously dismissive for many and reminiscent of the response to scientists who questioned Covid protocols and policies from the six-foot rule to mask efficacy.
Stanford Professor Dr. Jay Bhattacharya (who is now nominated to lead the National Institutes of Health) and others were vilified by the media over their dissenting views on the pandemic and efforts to show countervailing research. He and others signed the 2020 Great Barrington Declaration that called on government officials and public health authorities to rethink the mandatory lockdowns and other extreme measures in light of past pandemics.
All the signatories became targets of an orthodoxy enforced by an alliance of political, corporate, media, and academic groups. Most were blocked on social media despite being accomplished scientists with expertise in this area.
Some scientists argued that there was no need to shut down schools, which has led to a crisis in mental illness among the young and the loss of critical years of education. Others argued that the virus’s origin was likely the Chinese research lab in Wuhan. That position was denounced by the Washington Post as a “debunked” coronavirus “conspiracy theory.” The New York Times Science and Health reporter Apoorva Mandavilli called any mention of the lab theory “racist.”
Federal agencies now support the lab theory as the most likely based on the scientific evidence.
Likewise, many questioned the efficacy of those blue surgical masks and supported natural immunity to the virus — both positions were later recognized by the government.
Others questioned the six-foot rule used to shut down many businesses as unsupported by science. In congressional testimony, Dr. Anthony Fauci recently admitted that the 6-foot rule “sort of just appeared” and “wasn’t based on data.” Yet not only did the rule result in heavily enforced rules (and meltdowns) in public areas, the media further ostracized dissenting critics.
Again, Fauci and other scientists did little to stand up for these scientists or call for free speech to be protected. As I discuss in my new book, “The Indispensable Right,” the result is that we never really had a national debate on many of these issues and the result of massive social and economic costs.
For scientists attacked and deplatformed for years, Sotomayor’s statements were painfully familiar. They also cited European and countervailing studies that the media dismissed as fringe views or conspiratorial viewpoints. In the same way, Justice Sotomayor’s analogy seemed to treat those raising these concerns (including parents) as akin to questioning the risks of aspirin. The import seemed to be that stopping taking aspirin based on minor concerns would be ridiculous and so too are objections to gender changing treatments and procedures.
The fact is some analogies are poorly chosen or misunderstood. However, the thrust of the comments from the justice were dismissive of the science supporting Tennessee and the 23 states with similar laws. That is roughly half of the states which want to adopt a more cautious approach. No one was arguing against adults being able to opt for such treatment, but these states do not want children to be subject to the treatments in light of this ongoing debate.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
Analogy breakdown courtesy of the NIH:
In the United States the Food and Drug Administration recommends that aspirin should not be given to children under 19 years of age during episodes of fever.
* Correct, acetaminophen recommended. Good score!
It was always a total fabrication to claim that puberty blockers were completely reversible, and carried no side effects. Puberty has a relatively short window. Long term use of puberty blockers creates permanent side effects, such as a micropenis in males. Interfere with the proper development of adult male genitalia, and it will never grow properly. That’s an irreversible side effect.
There are in fact so many side effects that Europe has reversed its course, and now no longer recommends puberty blockers to most children who identify as transgender.
It should have been intuitively obvious not to castrate or sterilize children, or give them mastectomies. It is utter madness for the public education system to inundate impressionable kids as young as kindergarten that gender is just a state of mind, and how wonderful it is to be transgender. The rates of transgender kids then skyrockets. There is an appallingly loud movement on the Left that would allow those children to elect to be castrated, when they’re too young to buy alcohol or a firearm.
That is when Sotomayor interjected: “I’m sorry, counselor. Every medical treatment has a risk — even taking Aspirin. There is always going to be a percentage of the population under any medical treatment that is going to suffer a harm.”
That does not give any indication or suggestion of the patronizing condescending contemptuous tone of voice that woman used.
Taking aspirin as an adolescent doesn’t result in a micro penis. Taking puberty blockers does.
I agree
* HEALTH OF THE BODY! My God, if a child is whole and healthy in body without birth defects leave the GD kid alone. That thing, THING is a urethra for crissake.
You people are fffing nuts.
Jackson drew an analogy to Loving. She argued that Tennessee and Virginia were making the same argument: that it is OK to assign burdens based on a suspect classification such as sex or race so long as the burdens are imposed on both groups in the same way. She expressed concern that Skrmetti could undermine Loving.
This is an example of the worst form of ideological thinking dressed up in legal formalisms. That anyone could think that prohibiting mixed marriages between adults is even remotely similar to prohibiting unproven experimental medical treatments on minors is a testament to the absurdity of legal reasoning carried to extremes. The differences are clear:
1. Tennessee is not classifying based on sex, but age and medical condition/purpose, whereas Virginia was classifying based on race;
2. Marriage between adults is nothing like medical treatment of children; and
3. The purpose of Tennessee’s law is to prevent doctors from causing harm while the purpose of Virginia’s law was to preserve racial “purity.”
Marraige is a civil right. The only function the state has is in enforcing the marraige contract.
Medical treatment is not a right at all.
The correct answere here is that adults can have whatever treatment they can pay for,
and minors can have whatever treatment their parents allow and pay for.
The state has an appropriate role in preventing parents from harming their children. For example, child abuse is not okay, and it’s both illegal and in some cases cause for the state to find foster parents.
As for medical procedures, we can argue about where to draw the line, but the idea that there is no line to be drawn is wrong. For example, the state could legitimately preclude parents from taking their kids to a doctor to be castrated.
* no doubt
* There are cases, rare cases when males choose to remove these as adults. They’re happy with it. It’s complex and most likely has some genetic markers.
Most unfortunately it’s become a fad.
Back when transgenderism was vanishingly rare, it was found most often in males who had been abused by children.
https://publications.aap.org/pediatrics/article/148/2/e2020016907/179762/Disparities-in-Childhood-Abuse-Between-Transgender?autologincheck=redirected
* Medical care became a part of government in soc sec disability insurance, Medicare Medic-aid, FDA,Surgeon General, medical insurance as commerce, medical standards, and under the Affordable Healthcare Act attempted to engulf every man, woman and child in the USA.
Under HIPPA medical treatment is supposedly private as the tentacles engulf abortion and gender abuse. It’s not being argued correctly at all. There are things that should not be in courts.
The body itself may be the most valuable part of being human. Once it goes haywire you die. At that point of death what you think, who you are, and nothing else matters if the next breath fails. To do anything that harms the body itself is true madness.
The whole is greater than the sum of its parts…
The “Affordable Health Care Act”, is directly responsible for my 17 year old daughter’s decision and ability to get a double mastectomy. The $12000 surgery could not have been afforded by her without health insurance company being obligated to pay for it. This was elective surgery legally cast as mandatory.
And yet I cannot get my insurance to pay for dental implants, ostensibly more critical than a boutique mastectomy.
* Your last paragraph makes a point. Insurance companies are a form of government telling doctors and people what treatments and drugs are covered. If that’s acceptable in private medicine then why hasn’t government followed suit?
Hairbrained … it’s a farce. Look at congress. Would anyone even want to pay their salaries at all? For what? Maybe dog walkers?
It’s in this way they’ve destroyed the USA.
* Why does marriage have reciprocity and drivers licenses not? Remove IRS purposes and addresses …
Marriage exists because someone must pay for the children produced. The two responsible parties pay. The impregnator and gestator pay so the public is not the responsible party. It’s in the public interest. Btw mom and dad are out of fashion since my 2 mommys was published.
Records are kept for census and citizenship for the public interest.
Public interest= 1. Costs 2. Census 3. Citizenship.
I’m not enforcing their personal contract nor am I paying for their offspring. Oh but I do. All 12 of Maxine Waters siblings.
I don’t have a problem with justices exploring concerns during oral argument about the impact of this case on other case law such as Loving or Bostock. You have distinguished this case with Loving and I’m sure the majority opinion will do so as well if Jackson brings it up in a dissenting opinion.
* your point 1. Jackson believes and thinks that people are females in a male body. If females can take estrogen then males can also or it’s sex discrimination. Only females can use estrogen rather than all people can use estrogen. She believes and thinks that is a truth as immutable as race being merely the color of skin or sex being merely chromosomes the same genetics are in play. She’ll also decide that bathrooms are open to all people regardless of genetic assignment or sports etc.
She’s an absolutist and children have those same freedoms if raised properly. There are no boundaries because there’s a law that says that in her mind. Get rid of all discrimination laws and discriminate at will is where she’s going with it and that’s too clever by half. She thinks people are stooges and in that way she’ll put you in chains in hell.
Very ill by improper manner of rearing.
* Jackson thinks race is the color of her skin imposed by genetics and those same genetics imposed gender. Genetics discriminates and the law of the land says there shall be no discrimination. Genetics must be disregarded as in error, genetics is bad. A white person may be trapped in a black body and vice versa.
Does everyone understand how insane that is? The BODY shall be disregarded as a random identification at creation.
If it weren’t for the genetics of her parents she may have been born as a 7 ft. Tall basketball player. She thinks people are trapped in bodies. Genetics imposes everything including intelligence. If it weren’t for bad genetics she’d be Einstein. If it weren’t for this bowl of beans on the table I’d be eating steak.
She’s nuts. You got beans, mam. It’s a pig in a poke game. You can eat them with a fork, a spoon, but you’re going to eat them or starve. It’s d8fficult to even think about but she’s so damaged by racism it’s engulfed beans. Beanscare racist.
Well said
“Gender-affirming care” for children:
If a child believes he’s a pirate, I propose “identity-affirming care.” Cut out an eye and chop off a leg.
Shiver me timbers!
I have heard from those who have sat through a lecture or so of Sotomayor’s that she is simply not very bright. What a stupid and illogical analogy to compare blockers with any other pill especially one used for headaches. Her efforts at such analogies reveal how shamefully inadequate she and those like her are, and how our Congress is made up of many such ill-qualified people. Examples are those who voted her to a high position in the first place. Was she a DEI hire — shoo in?
Current efforts to put forth smart, qualified, and conscientious people are being blocked by those who are not conscientious and who have no respect for other human beings. They merely vote for their own best interest. Maybe they voted her in so they would look smart. My disgust is showing.
* Sotomayor just doesn’t prepare for sessions because she’s oops it’s too wise. Alito is well prepared.
* The court needs to understand this is QUACKERY. No, it’s impossible to change genetics , sex chromosomes are immutable except for damage resulting in birth defects.
Get this into the right category and then think about it. The rise in medical quackery including Fauci and his masks and 6ft distance is astounding. Masks and hats for hair growth and wrinkles as ads on tv? NO, Lia Thomas is NOT a woman.
Lawsuits for damage caused by these quacks are forthcoming. Resign Sotomayor and Jackson the quacks of law.
Mass psychosis.
* deserved mention–> Cindy Crawford’s ads and Doctor Quack with the shriveled melons. Smh