Plaintiffs challenging state laws that bar doctors from providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria have claimed that parents have a so-called substantive due process right to direct such treatment for their children. The Eleventh Circuit rejected this claim in an excellent opinion last month, as did the Sixth Circuit (in a more provisional ruling) in July. As the Sixth Circuit put it:
Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). But the Supreme Court cases recognizing this right confine it to narrow fields, such as education, Meyer v. Nebraska, 262 U.S. 390 (1923), and visitation rights, Troxel, 530 U.S. 57. No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments. In view of the high stakes of constitutionalizing areas of public policy, any such right must be defined with care. Glucksberg, 521 U.S. at 721 (requiring “a ‘careful description’ of the asserted fundamental liberty interest” (quotation omitted)). The challengers have not shown that a right to new medical treatments is “deeply rooted in our history and traditions” and thus beyond the democratic process to regulate. Id. at 727.
A colleague has called to my attention an article—“Legal Regulation of Psychosurgery: A Fifty-State Survey”—published in the Journal of Legal Medicine in 2020 that provides further support for the courts’ conclusion. As its title indicates, the article surveys state laws governing “psychosurgery”—a term it uses to encompass “prefrontal lobotomy and similar interventions” as well as broader forms of “invasive neuromodulation.”
A few items from the article:
- California “categorically rules out [the] use [of psychosurgery] on minors.”
- A Tennessee statute provides that “[l]obotomies for intervention or alteration of a mental, emotional or behavioral disorder shall not be performed on children, and the courts of this state are prohibited from ordering or authorizing the performance of the procedure upon any child.” A Tennessee regulation more broadly “bans psychosurgery for minors entirely.”
- Idaho law provides that “no psychosurgery or electroconvulsive treatment shall be performed on a child, except by order of a court upon a finding that the treatment is necessary to prevent serious harm to the child. Consent of the parent of a child to this treatment without a court order shall be invalid and shall not be a defense against any legal action that might be brought against the provider of the treatment.” (Emphasis added.)
- Alaska “forbids psychosurgery for patients in certain state facilities unless accompanied by patient consent (legal guardians may consent for young or disabled minor patients) and ‘a court order after hearing compatible with full due process.’” (Emphasis in original.) In other words, parental consent does not suffice; a court order is also needed.
- North Dakota has a statute similar to Alaska’s for anyone (including minors) “in an institution for individuals with developmental disabilities.”
- An Illinois statute “for recipients of mental health and developmental disabilities services” likewise imposes a “court order mechanism” for “minors or individuals under guardianship.”
Each of these laws is incompatible with the notion that parents have a sweeping constitutional right to direct a specific medical treatment for their child. The laws instead implement state authority to decide what is the proper balance between (as the article puts it) two “[i]mportant interests—patient access to needed treatment on the one hand and protection of vulnerable individual from invasive and potentially identity-altering procedures on the other.” (Emphasis added.) States that bar doctors from providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria are exercising this same authority.
It’s noteworthy that, as these psychosurgery laws show, this state authority applies to established medical treatments as well as to new or experimental ones. Judicial deference to state authority ought to be all the greater with respect to new and experimental treatments, as the benefit of such treatments hasn’t been clearly determined.
I don’t mean to imply that state power to bar medical treatments (or whatever might be deemed to fall within that category) doesn’t extend well beyond this particular authority. It obviously does. Some clear examples are elective abortion, physician-assisted suicide, and elective amputation. (I’m not aware of any laws yet on the last example; my point is simply that such laws would clearly be permissible.) And since neither a parent nor a child has a constitutional right to any of these procedures, it would be absurd to contend that a parent’s “substantive due process right ‘to make decisions concerning the care, custody, and control of their children’” somehow includes a right to direct that his child receive such a procedure.