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.”
The idea that any jurist from administrative law through the Supreme Court could be expected to set aside personal bias and view matters with complete objectivity supported by existing promulgated law remains a male adolescent’s wet dream. Such is the continued motivation on both sides of the aisle to remake the Court in their own image. The victim, in all of this, is the state of the Union and the citizenry thereof.
As a licensed foster parent, I’ve seen the system strip parental rights for actions that even hinted at having the potential to harm a minor child. Anyone (family, friends, doctor.’s, educators, etc.) involved in enabling the physical or mental gender transisitioning of a minor should be at a minimum put on a registry preventing them from unsupervised access to minors.
So the ACLU lawyer says a 2 year old knows (understands) the fact that I am a boy or I am a girl but I don’t know enough to not put a small Lego in my mouth or a bead up my nose (even a 16 year old may not know the latter). That ACLU lawyer feels it is okay to start the child on pharmaceutical-created drugs to change their sex/gender? That child be it 2, 9 or 16 (all formative years) will have to be on pharmaceutical-created drugs for the rest of their lives. What does that do to the internal system from brain to fingers and toes? Do we know? Are we concerned?
A boy is still developing and growing after the age of 18. A girl develops earlier. Again, I ask, what do these drugs do to the “child?”
Society is already on “popular” drugs for too long. Are the pharmaceutical companies looking for a long-term captive audience? How about when the child becomes adult and sees the scars from “removal” surgeries?
I picture a doctor as a “mad-scientist” with dark rimmed, broken glasses taped together and a long white medical coat–this is all experimental, playing with humans–but these humans are children.
At 21, go ahead. But remember, the drugs are for a lifetime.
“That child be it 2, 9 or 16 (all formative years) will have to be on pharmaceutical-created drugs for the rest of their lives.”
Would you consider the possibility that the life long dependency you describe might be the true end-game here, and might also identify the ultimate proponents of gender changes?
States should always err on the side of caution to protect minors under the age of 18. Always. When in doubt, leave it out.
“States should always err on the side of caution to protect minors under the age of 18. Always”
So, are you advocating that states over-rule decisions that parents make on behalf of their children whenever state legislators decide to do that, regardless of circumstances? Because your comment could be interpreted that way. If not, how and where do you propose drawing the line? Mind you, I think that the Tennessee law is likely justified in many, if not all, cases, but I also advocate for the rights of parents to raise their children as they see fit, and I definitely want to see a more nuanced approach than what your comment seemed to suggest.
“Biden Administration and liberal justices were discarding countervailing research inconveniently at odds with their preferred legal conclusion.”
It’s hard to believe the left’s conclusions are ever been based on legality.
Margot,
Or reality.
So, according to Sotomayor’s logic, we should continue giving Aspirin to children with fever, despite the risk of Reye’s Syndrome.
A totally ludicrous comparison by Justice Sotomayor which shows that she obviously never consulted with any legitimate physician . Aspirin allergies are a very significant medical problem with responses ranging from asthma attacks (mild or catastrophic) to death not to mention the appearance of Reyes Syndrome in Children who receive Asprin after viral illnesses. Thats why almost all children are treated with Tylenol now for pain or fever and not aspirin. Then there are the episodes of bleeding in the GI Tract and in the brain, sometimes after a single dose.
The key question, which the good justice has totally overlooked is the totally inappropriate use of hormonal treatments and surgery on children when there is no really justifiable reason to do so. There are studies going back decades that reveal that the most effective treatment for gender dysphoria disorder is, wait for it! GOING THROUGH PUBERTY!
If a child is “transgender at 2”, then the problem is almost certainly the parent or parents.
A syndrome called Munchhausen Syndrome by Proxy is when parents try to fake or cause illness in their children in order to get attention in an extremely perverse way.
Surgery should almost always be the last resort, since catastrophes and tragedies still occur even when everything is set up perfectly (if that is possible). And you never want surgery when the indications are so doubtful or fraught with error. And hormones given inappropriately can be just as dangerous.
Justice Alito once again shows exceptional research of the subject whereas Justice Sotomayor shows her research may have been restricted the Redbook or The Ladies Home Journal. (Not high in the pecking order of legitimate medical publications).
One great argument that was left put of this great column is the point that Justice Alito made when he pointed out that civil rights laws are based on the immutable aspects of people vis a vis their rights and yet the trans movement/argument is self-described as have sex/gender NOT being immutable since it swings from one to the other.
Also, why can a girl transitioning to a boy get testosterone shots but yet it is illegal a for a boy to get these SAME shots? Sound like an Equal Protection issue… but in reverse.
PS. Katanji Jackson Brown and Sotomayor are not up to being Justices on the Supreme Court. Kagan has some spark, but being a liberal Democrat she will never vote against the left’s ideology even if the Constitutional arguments are obviously against her.
Any good reputation Justice Sotomayor may have had – ? – went down the drain with the Aspirin Question. Obama’s “Compassionate Latino” is not up to the job nor is another liberal, Ketanji-Brown. Kagan is probably capable, but for a law school professor and Dean to always take the same position in every debate does not reflect well on her willingness to think searching and independently.
(Analyses show much more independence among the originalists.)
There are three issues here — first, is there ‘settled’ science on the many questions surrounding ‘transitioning’?
Second, why should we accept tendentious arguments from activists as valid and the opinions of children and adolescents regarding procedures which will irrevocably change their bodies and their lives as definitive?
Third, if the science is not settled, activists are self-interested, and children and adolescents are not considered old enough to make decisions affecting the rest of their lives, why do we allow doctors to mutilate children and adolescents?
It seems to me obvious that the science is not settled, given the Cass Report and other research. It also is obvious that activists are partisan, not objective, and that children cannot make adult decisions, which is why we do not allow them to vote, drive a car, or buy liquor. So it would seem that we should not allow doctors to mutilate our kids based on unsettled science, partisan arguments, and a child’s mental confusion.
Then again, I still believe there are only two sexes, so what good is my uninformed opinion?
Jonathan
This entire discussion is horse shit gaslighting.
What have the risks to do with the Constitution? It is not the job of the Judiciary to weigh risks.
This is reminiscent of KBJ asserting that a supposed 1% rise in favorable outcomes for black babies trumps the Constitution.
First and foremost its not their job to weigh and assess scientific studies. And its certainly not their job to legislate based on that.
Agree. Judges should not be involved in making laws regarding medical decisions and doctors should not be involved in making judicial decisions. Both are outside their area of expertise. Children do not need to be experimented on. How did we even get to this place where people were arguing that it was okay to mutilate children? The human brain is not fully mature until age 25. If after a person makes the decision to transition after 25 then they are old enough and mentally able to deal with the consequences. And no amount of hormones or surgery will ever be able to change a person’s DNA. If a person believed they were a race car, painted themselves red, and glued a bumper on their butt, they would most likely be referred to a psychiatrist and would not be allowed to participate in the Indy 500. But yet we are expected to participate in a mentally ill person’s delusion.
As always with the prog/left (whether it was Jackson unwilling to define what is a woman, or now this little soldier for the left) they will place ideology above facts, logic, or even common sense. This is what happens when ideology and/or DEI trumps merit. This is the mindset of those who are destroying our nation and worse, how do we disinfect our nation of these progressive jihadis?
We can hope, even pray, one or more of the Kagan Three retire during Trump’s second terms.
Hope and pray Trump has the opportunity to.replace them.
We have 2 people on the Supreme Court that have no business being there and every time they open their mouth it shows.
Europe and the WHO have adopted a cautious approach to gender affirming care. Remember how we used to look to them as examples of how to deal with things, like a pandemic?
This case really should have never been considered a “Trans” issue of “Equal Protection”. It is really a case of what is the best way to treat someone with an “illness” Do we really want the Supreme Court to decide the most appropriate way to treat breast cancer, Diabetes, etc.?
The Tennessee legislature, as well as every other legislature would not and should not normally get into passing legislation on the best way for medicine to treat illness. However, in cases where the treatment has severe irreversible consequences the legislature should and indeed must get involved. That’s what we have legislatures for.
And I would wager that the prog/left hoped that we wouldn’t pick up the difference…they always use a side door to move their ideology.
Your assumption about the legislature and medicine is fallacious in some areas. There is a legal determination called standard of care and every hospital credentials committee and state licensing board abides by it. The states set up licensing bodies and state periodically what the standard of care is in specific instances . Malpractice cases are all about standard of care, and informed consent and lawyers, judges, and juries debate this every day. It is impossible for the law and medicine to not be intertwined. There is a constant back and forth between both professions as standards and treatment changes. The legislature is the best place, usually, to hash this out and set standards.
Why? Why should the legislature get involved. It’s not their risk to take. It’s the individuals or parents. Why should the state/legislature get to decide what is best? Isn’t that the argument most conservatives make? Keep government out of my personal decisions and choices. Right?
An aspirin will not have irreversible effects on the person taking it (unless they are allergic to aspirin). We’ve also had aspirin in medical use since its invention in 1897.
Medicines that fundamentally change the development of a growing and maturing human create irreversible effects. Too many people do not realize that they have to be a partner in their treatment. Whether it’s hair loss, diabetes, or cancer, a patient needs to give informed consent. The blanket statements papering over the risks of puberty blockers isn’t allowing parents and children to provide informed consent.
Aspirin can cause irreversible damage. I can damage the liver, permanently damage the lining of the esophagus, and lots of other things. Sotomayor had a point, it was Turley who is being dismissive of her because she mentioned Aspirin. Perhaps Turley should have done more research on how Aspirin can be harmful.
https://pmc.ncbi.nlm.nih.gov/articles/PMC1118944/
It is quite remarkable to hear these and other musing from KitangieBrownJackson. To call them stupid is not demeaning, it’s accurate.
ACLU, Sotomayor, Transgender crowd, Left Wing Woke DEMS are all NUTS.
The main issue at stake is whether the law involves a classification based on sex, requiring a heightened level of judicial scrutiny as opposed to rational basis scrutiny. Tennessee argued that the law drew lines based on age and the purpose of treatment, not sex. The three liberal justices said it involved classifying based on sex, because a boy could take testosterone to restore “typical male puberty” while a girl could not. The 6th circuit opinion had dismissed this for the lunacy it is. Gorsuch was completely silent during the nearly three hours of discussion, probably contemplating how to dig himself out of his Bostock hole.
Daniel: I thought that Respondents’ Brief/arguments rejecting any Bostock comparison were quite adequate, see. e.g., pp.25-27 of Respondents’ Brief, https://www.supremecourt.gov/DocketPDF/23/23-477/299674/20240202161645864_23-466 -477 Brief in Opposition Final.pdf
what are your thoughts?
“Wise Latina” says WHAT?
Sotomayor’s “comparison to taking Aspirin:”
Sure, there are risks from swimming with sharks in blood-infested waters. But, hey, there are risks from drinking a glass of water. So swim until your heart’s content (or you lose a few limbs).
She’s dumber than a bag of rocks.
Let’s fact it. The woman is an intellectual lightweight and always has been.
“There is always going to be a percentage of the population under any medical treatment that is going to suffer a harm.”
Medical treatment? lolol. If I have a mental disorder then stab myself in the eye, is that a medical treatment? Hint: a percentage of the population will be harmed.
How dare you cast aspersions on The Wide Latina!