The recent Supreme Court Skrmetti decision, validating legislation banning puberty blockers and hormonal treatment for trans-children, demonstrates how both sides of the aisle can throw “darts” at the other while side-stepping the crucial issue: the scientific assessments of appropriate medical care. Instead, the majority dickers and dances on legalities of what constitutes an “appropriate class” for equal protection purposes, while considerations of the “best interests of the child” go wanting. Indeed, the term is never used in the decision.
Justice Thomas’s concurring opinion highlights the medical ignorance driving the result. On the other side of the spectrum, Justice Sotomayor’s opinion doesn’t escape “scrutiny” either, as she exhibits an ideological turf-grab, championing the entire trans-care package without assessing the risks and benefits of each category of treatment, individually.
“This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct. [Instead, reserving such decisions] to the people, their elected representatives, and the democratic process … that …does not bow to “major medical organizations.”
- Justice Thomas.
On Eschewing Expertise
Attacking trans-care in its entirety, Justice Thomas rejects the consensus of the mainstream American medical community on two grounds: that it is ideologically driven and that deference to the authority of “the so-called expert class” is not warranted because “so-called experts” have no license to countermand the “wisdom, fairness, or logic of legislative choices.” Affirming “the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies,” [1] Justice Thomas opines that such medical decisions belong to the legislature.
While the American medical establishment may have been ideologically influenced, it is beyond hubris for Justice Thomas to insinuate that the legislature and courts have not been similarly prejudiced. Indeed, the legislature is charged with advocating for the ideological opinions of its constituents. For that very reason, shouldn’t matters involving scientific or medical determinations belong neither to the medically ignorant legislature nor to the courts, especially if social, economic, or policy concerns could corrupt scientific decision-making? That is not to say that doctors cannot err. Just that if they act unreasonably, they are subject to malpractice suits for negligence, while the courts and legislators are shielded from similar blunders.
The Court’s Recipe
Notwithstanding, the Court relied on various overstated precedents to determine the case on purely legal grounds, garnished with a bit of erroneous science thrown in for flavor. Of key concern is Justice Thomas’ rejection of scientific evidence and expertise in judicial decision-making. Drowning in Dunning-Kruger (when a person’s lack of knowledge and skill in a particular area causes them to overestimate their competence), Justice Thomas contests the place and purpose of what he disparagingly calls “so-called scientific experts.” To support his conviction that “when this Court has … given exalted status to expert opinion, it has been to our detriment”, he cites Justice Holmes’ decision in Buck v. Bell. That case upholds legislation requiring forced sterilization to prevent a claimed hereditary transmission of “imbecility.” Justice Thomas blames “[p]ast deference to expertise provided the theory of eugenics, which added legitimacy and considerable momentum.” This, Justice Thomas argues, resulted in “[t]his Court throwing its prestige behind the eugenics movement.”
In actual fact, the Buck decision is notorious for its conspicuous lack of scientific evidence. Indeed, the Court did not re-examine the medical testimony regarding Ms. Belle’s (errant) diagnosis nor the scientific evidence erroneously supporting the claimed hereditary nature of “imbecility” under a mistaken notion of simple Mendelian genetics. The hereditary nature of “feeblemindedness” had garnered significant opposition by the time the case was heard. And while many in the medical establishment did support the eugenics movement, (notably Justice Holme’s father, Dr. Oliver Wendell Holmes Sr.), many drivers of the movement came from the scientifically-untutored political class, to wit, Winston Churchill, and the judiciary, e.g., Chief Judge Harry Olson of the Chicago Municipal Court and Chief Supreme Court Justice (and President) Howard Taft.
A study of the science at the time reveals clear international discord regarding eugenics and the hereditary nature of polygenic traits, such as intelligence, which are influenced by multiple genes.
Opposition to eugenics began even as the movement was being organized into a scientific discipline. By 1910,…the Hardy-Weinberg equation showed that sterilization of affected individuals would never appreciably reduce the percentage of mental defectives in society..[and] work by a number of scientists countered the simplistic assertion that complex behavioral traits are determined by single genes [by ]… 1914-1923.
Instead of examining the science, the Holmes court did what Skrmetti does: hide behind the 14th Amendment, thereby allowing the Court to disregard the messy state of medicine, side-stepping a risk-benefit analysis of treatments, and justifying a legislative coup. By focusing on due process at the expense of science, the Buck court, like Skrmetti, memorializes in law its horrific conclusion of what it considers the proper treatment.
The fact remains that the standard of trans care in youth is controversial within the international medical community, as illustrated in the British Cass Report, which denigrates chemical modulators to treat trans youth (based on epidemiological data), contrasted with the mainstream American consensus, which almost without opposition disagrees.
As to which school is correct, one medical researcher investigating Buck (although quite relevant here) warns of the power that prevailing social beliefs can use to castrate science:
“Genetics was corrupted in the 1920s by the confusion of folk knowledge with scientific inference. For whatever reasons, outsiders who recognized it were shunned, and insiders were, as they say, a day late and a dollar short. The fairly obvious lesson to be learned is that where science appears to validate folk beliefs, it needs to be subjected to considerably higher standards of scrutiny than ordinary science.”
- Stephen Farber, Professor of Biology, Johns Hopkins University
The Legislature: The Operating Theater of the Absurd
The real issue should be who makes the determination when the medical community is in discord and no consensus exists? With double-speak and ideologically driven definitional wizardry, the Court evades the question and hands the matter over to the legislature, all the while thumbing its nose at the FDA and its approval process.
The drugs banned by the Skrmetti-approved legislation, puberty blockers and hormones, have been approved by the FDA, albeit for conditions different from the ones targeted in the case. This “off-label” use is legal; indeed, the drug has met a certain basic level of safety, as demonstrated by the Phase I part of the FDA approval process. Since no drug is 100% safe, the ultimate safety profile depends on comparing the benefits and risks of the drug versus the risks of the condition if untreated for the specific patient. Current practice assigns this determination to physicians, who use their clinical judgment on a case-by-case basis. It is clinical judgment in medical care for trans-youth that is now denied by Skrmetti.
Science, Baltimore, Maryland.
Nevertheless, the Court’s majority removes the medical decision-making from the physician and vests it in the legislature, predicated on medical discord. While Justice Barrett proclaims, “The prospect of courts second-guessing legislative choices in this area should set off alarm bells,” the irony of protecting legislative choices while second-guessing the medical consensus is eyebrow-raising.
Future: tense
The rank “imbecility” of the Skremetti opinion surfaces when comparing legislative enactments regarding other drugs. Three state legislatures have enacted legislation allowing over-the-counter use of ivermectin for any purpose. Some dozen more states are pursuing similar legislation. The FDA, however, has not authorized or approved ivermectin for use other than in rare parasitic conditions, and then only when prescribed by a doctor. Nevertheless, legislatures are now allowing anyone to self-prescribe the drug, knowing it will be used for conditions for which research has shown the drug presents real dangers and even death.
This means that while Tennessee’s doctors cannot use FDA-approved drugs for purposes they determine are warranted and for which mainstream US medicine believes is safe and effective (and for which they can be sued if their decision is unreasonable), the laity can “prescribe” for ivermectin for themselves -- for any reason – without the benefit of any FDA labelling approval. In plain speak, children can prescribe ivermectin for themselves for uses known to be dangerous, at least in North Carolina, while doctors across the border in Tennessee cannot prescribe puberty blockers for trans children
The “real” answer as to what constitutes proper medical care for trans children will become apparent at some point. Until then, isn’t the child’s medical doctor (who is chargeable with malpractice for unreasonable decisions) the best person to decide what treatment is medically indicated? And if the Court believes the treatment is yet experimental, as do the British, then rather than an outright ban, a directive for more research and clinical trials would surely be the more prudent scientific approach.
[1] Emphasis added
