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.
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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.”
