Attorney General Steve Marshall and the Alabama Center for Law and Liberty (ACLL) have filed briefs challenging the injunction against a law that would ban transgender surgeries and hormone treatments for minors.
In April, Gov. Kay Ivey signed a bill into law that would prohibit doctors in the state of Alabama from performing transgender operations or prescribing cross-sex hormones and puberty blockers to individuals under 19.
The Vulnerable Child Compassion and Protection Act went into effect on May 8 but was blocked by U.S. District Judge Liles Burke a few days later. The injunction by Liles came after multiple parties added themselves as plaintiffs in the case, including the United States of America and Kaitlin Toyama, an Attorney-Advisor with the civil rights division of the DOJ.
After Liles’ injunction, Marshall filed a challenge to the ruling in the Eleventh Circuit Court of Appeals.
Since the injunction was filed, the Supreme Court of the United States (SCOTUS) announced several controversial decisions. The most polarizing of the SCOTUS decisions was the ruling in Dobbs V. Jacksons Women’s Health Organization.
On June 27, Marshall filed a brief with the Circuit Court in which he cites the precedents provided by Dobbs to be decisive enough to remove the injunction and allow the law to be implemented as intended.
“Alabama’s case should be an easy one,” Marshall said. “There are new medical treatments being pushed on kids that carry tremendous risks, including cardiovascular disease, loss of bone density, and sterilization. The question is whether the Constitution demands that States allow these sterilizing drugs to be administered to children, and the answer is, of course not.
“The Supreme Court’s recent decision in Dobbs supports that position, but so do the numerous long-standing precedents that the Dobbs Court relied on to reach its conclusion. In numerous decisions over decades, the Supreme Court and lower courts have declined to recognize new fundamental rights unless they are deeply rooted in our Nation’s history and tradition and are essential to our scheme of ordered liberty.”
Marshall’s brief quoted the Dobbs decision regularly and made use of concurring statements by various Supreme Court justices.
The premise behind tying the Dobbs decision to this law is the Court clarifying the proper use of the Fourteenth Amendment to the U.S. Constitution.
The Dobbs decision struck down a nearly 50-year precedent in Roe V. Wade, which derived the right to abortion from the rights guaranteed in the fourteenth amendment.
In the Dobbs decision, the SCOTUS rejected the claim that a fundamental right to abortion could be derived from a broadly defined right to “privacy,” which, in turn, could be derived from the Fourteenth Amendment’s protection of “liberty.”
In its striking down of Roe, the SCOTUS determined that the liberties protected by the Fourteenth Amendment must be rooted in American history and tradition. All other liberties, the SCOTUS ruled, are left up to the states.
“Because abortion specifically did not have a long lineage in the 'history and tradition that map the essential components of our Nation’s concept of ordered liberty,' the Court held that the Fourteenth Amendment does not protect it,” Marshall’s brief read.
Marshall extrapolated that, since the novel procedures banned by the Alabama law do not have the necessary national heritage, they cannot be defined as liberties under the Fourteenth Amendment.
“If neither the parent nor the child has a personal, fundamental right to access the interventions, then the parent acting on the child’s behalf cannot access them, either,” Marshall’s brief read.
Marshall also cited multiple European studies, which he believes show the novel nature of hormone treatments and operations.
The ACLL, a conservative nonprofit public-interest firm in Birmingham, filed an amicus curiae (“friend of the court”) brief in appeal in the Eleventh Circuit Court of Appeals.
ACLL President Matt Clark grounded his argument in longer-established precedents in U.S. courts, natural law, and the Bible, which he argued all profoundly influenced the equal protection clause in the Fourteenth Amendment.
“At the end of this term, the United States Supreme Court emphasized multiple times that the Constitution needs to be analyzed in light of history,” Clark said. “Because of that, ACLL provided the historical background needed to help the Eleventh Circuit comply with the Supreme Court’s methodology.”
Clark argued that, since historical framers of the Fourteenth Amendment would have recognized the binary nature of sexuality through natural law and scripture, the right to transgender treatments would not have been considered a fundamental right.
“All of the sources we examined, which indisputably had a profound impact on the Fourteenth Amendment, believed that parental rights and equal protection of the laws should be understood in light of natural law, which could be understood through science and the Scriptures,” Clark said. “Because both science and Scripture teach that there are two sexes, any attempt to use the Fourteenth Amendment to create a right to change one’s sex is ahistorical and unconstitutional.”
ACLL’s brief analyzed the issue of parental rights as discussed by Sir William Blackstone, Chancellor James Kent, and Chief Justice Thomas Cooley of the Michigan Supreme Court, all of whom the ACLL claims have been recognized by the U.S. Supreme Court as having a profound impact on American law in the 18th and 19th centuries. It also analyzed the views of Thaddeus Stevens, Jacob Howard, and John Bingham, who framed the Equal Protection Clause.
“Nothing in the text of the Fourteenth Amendment’s Due Process Clause suggests that there is a right to change one’s sex or gender, either in one’s individual capacity or as a parent making that decision for a child,” the ACLL’s brief read.
The Eleventh Circuit Court of Appeals can decide whether to hear oral arguments from the opposing parties in the case or make a decision outright.
Clark believes oral arguments are likely due to the highly polarized nature of the case and the high-profile nature of the parties involved.
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