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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Ryan's gender dysphoria was so severe that he was throwing

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Speaker 2: up before school every day. He thought about going mute

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Speaker 2: because his voice caused him so much distress. And Ryan

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Speaker 2: has told the courts that getting these medications after a

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Speaker 2: careful consultation process with its doctors and his parents, has

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Speaker 2: saved his life. His parents say he's now thriving. But

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Speaker 2: Tennessee has come in and categorically cut off access to

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Speaker 2: Ryan's care. And they say this is about protecting adolescent health.

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Speaker 2: But this law harms Ryan's health and the health of

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Speaker 2: all other transgender adolescents for whom these medications are a necessity.

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Speaker 3: As a Supreme Court today, the US Solicitor General argue

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Speaker 3: that Tennessee's ban on gender affirming care for minors violates

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Speaker 3: the Constitution's guarantee of equal protection, But Tennessee's Solicitor General,

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Speaker 3: Matthew Vice, argued that his state was protecting vulnerable children.

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Speaker 4: Tennessee lawmakers enacted SB one to protect miners from risky,

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Speaker 4: unproven medical interventions. The law imposes and across the board

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Speaker 4: rule that allows the use of drugs and surgeries for

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Speaker 4: some medical purposes, but not for others.

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Speaker 3: Conservative justice is like Chief Justice John Roberts and Justice

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Speaker 3: Brett Kavanaugh, expressed reluctance to get into the middle of

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Speaker 3: the medical and policy debate by second guessing the judgments

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Speaker 3: of state lawmakers.

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Speaker 5: You know, we may think that we're you know, we

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Speaker 5: can do just as good a job with respect to

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Speaker 5: the evidence here as you know, Tennessee or anybody else.

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Speaker 5: But my understanding is that the Constitution leaves that question

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Speaker 5: to the people's representatives rather than to nine people, none

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Speaker 5: of whom is a doctor.

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Speaker 6: So it seems to me that we looked at the

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Speaker 6: Constitution and the Constitution doesn't take sides on how to

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Speaker 6: resolve that medical and policy debate. The Constitution's neutral on

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Speaker 6: the question, at least, that's one way to look at

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Speaker 6: it and want to get your reaction to that. You know,

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Speaker 6: if the Constitution doesn't take sides, if they're strong, forceful

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Speaker 6: scientific policy arguments on both sides in a situation like this,

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Speaker 6: why isn't it best to leave it to the democratic process.

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Speaker 3: Liberal Justice Sonya Soto Mayor had this answer.

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Speaker 7: When you're one percent of the population or less, very

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Speaker 7: hard to see how the democratic process is going to

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Speaker 7: protect you.

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Speaker 5: Well, you are you.

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Speaker 7: Blacks were a much larger part of the population and

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Speaker 7: it didn't protect them, didn't protect women for whole centuries.

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Speaker 3: Joining me is counsel for the transgender youth and families

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Speaker 3: in the case. David Cole, a professor at Georgetown Law.

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Speaker 3: He was most recently the National legal director for the

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Speaker 3: American Civil Liberties Union. Thanks so much, David for being here.

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Speaker 3: What was your general impression of the oral arguments.

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Speaker 8: Well, it was a spirited argument. It was an argument

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Speaker 8: in which I think a number of the conservative justices

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Speaker 8: expressed concern about how they are supposed to review a

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Speaker 8: judgment that it involves medical scientific evidence and uncertainty. But

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Speaker 8: also where you know, there was really no good response

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Speaker 8: to the contention, our contention that the law discriminates on

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Speaker 8: the basis of sex. It allows medical treatment if it

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Speaker 8: is consistent with the sex that one is assigned at birth.

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Speaker 8: It bars the treatment if it is inconsistent with your

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Speaker 8: sex assigned at birth. When you tell someone that you

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Speaker 8: can do something only if it's consistent with your sex,

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Speaker 8: that is a sex based classification. If you told people

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Speaker 8: you can only pursue career that are consistent with your sex.

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Speaker 8: Everyone recognized, But that's a sex based classification. So while

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Speaker 8: the court was concerned, some of the conservative members are

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Speaker 8: concerned about the medical issues that underlie this case. The

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Speaker 8: question in the case was simply, what is the proper

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Speaker 8: standard of review and is this actually sex discrimination?

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Speaker 3: It seemed to me like the liberal justices discussed that,

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Speaker 3: but the Conservatives stayed away from that issue. The Tennessee

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Speaker 3: Solicitor General argued that it's not sex discrimination and that

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Speaker 3: the law restricts the use of drugs based on medical purposes,

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Speaker 3: not sex.

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Speaker 8: Yeah, that's what he says. But if you read the

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Speaker 8: lull on its face, you can get medical treatment if

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Speaker 8: it is consistent with your sex assigned at birth. You

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Speaker 8: can't get the same treatment if it allows you to

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Speaker 8: live or identify inconsistent with your sex assign at birth.

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Speaker 8: And that is a sex classification. Is enforcing particular you know,

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Speaker 8: sexual stereotypes. People, If you have a birth sex of male,

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Speaker 8: you can get treatment if you want to masculinize, but

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Speaker 8: you can't get treatment if you want to feminize. And

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Speaker 8: the opposite rule applies to birth sex females. That's treating

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Speaker 8: boys and girls differently by seeking to enforce gender conformity.

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Speaker 3: You refer to this, but a lot of the conservative

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Speaker 3: justices kept saying, particularly Chief Justice John Roberts and Justice

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Speaker 3: Brett Kavanaugh, that you know, we're judges, were not doctors.

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Speaker 3: Let's leave it up to the lawmakers. They don't always

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Speaker 3: leave it up to the lawmakers.

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Speaker 8: Right, you leave certain things up to the lawmakers, but

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Speaker 8: you don't leave equal protection of the law up to

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Speaker 8: the lawmakers. You don't leave constitutional rights up to the lawmakers.

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Speaker 8: And those same conservative justices were quite willing and ready

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Speaker 8: to review COVID regulations which were imposed for public health

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Speaker 8: reasons at a time when people were dying by the

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Speaker 8: tens of thousands, and to strike down those regulations that

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Speaker 8: they felt interfered with religious free exercise rights. The same

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Speaker 8: thing is true here. Yes, it's in the area of

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Speaker 8: medical regulation. Yes, that's something that judges don't ordinarily do.

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Speaker 8: But when you discriminate on the basis of sex, as

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Speaker 8: this statue does on it, the court's obligation is to

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Speaker 8: make sure that the state has demonstrated that this ban,

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Speaker 8: a categorical ban, is necessary to further the interest that

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Speaker 8: they assert. That's what the Constitution demands, and there's no

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Speaker 8: exception for medical treatment that says you can discriminate on

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Speaker 8: the basis of sex when you're engaged in medical treatment.

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Speaker 3: What do you make of justice Alito repeatedly pressing your

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Speaker 3: acl you lawyer Cha Strandio, whether being transgender is immutable?

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Speaker 8: Well, you know, one of the questions in the case

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Speaker 8: is whether the Court should recognize the discrimination against trans

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Speaker 8: people is what we call a suspect class and is

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Speaker 8: therefore subject to more careful scrutiny by the courts. And

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Speaker 8: one of the characteristics that the Court has identified in

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Speaker 8: the past as a reason to treat a particular characteristic

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Speaker 8: as suspect, like race or sex or national origin, is

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Speaker 8: that it is immutable. And so he was pressing him

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Speaker 8: on whether transgender status is immutable. But I think you

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Speaker 8: know the response to that is that's not the only

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Speaker 8: qualification for whether a particular group is entitled to protection

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Speaker 8: under the Eco Protection Clause. It looks, in particular, whether

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Speaker 8: this is a group that has political power, whether it's

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Speaker 8: defined by characteristics that are not relevant to their ability

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Speaker 8: to do most things in the world, and whether they've

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Speaker 8: been subject to historical discrimination. And trans people fit every

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Speaker 8: one of those characteristics. So whether it's immutable or not

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Speaker 8: is debatable, but it is not dispositive.

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Speaker 3: So I found it odd that a Justice Gorsuch, who

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Speaker 3: wrote the only decision involving transgender rights I believe to date,

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Speaker 3: didn't ask one question during two and a half hours.

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Speaker 8: Yeah, now that was odd. And I argued the boss

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Speaker 8: Stock case in which on behalf of Amy Stevens, transgender

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Speaker 8: woman who was fired from a funeral home when she

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Speaker 8: came out as transgender, and he was very active in

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Speaker 8: that case. You know, I read that as he may

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Speaker 8: be uncertain about where he is in this case, and

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Speaker 8: so he wanted to sit back and listen and hear

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Speaker 8: what other people said rather than speak up, especially because

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Speaker 8: he wrote the Boss Stok decision. But you know, the

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Speaker 8: Boss Dook decision said that when you discriminate against someone

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Speaker 8: because they are transgender, that is, by definition, as a

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Speaker 8: matter of logic, discriminating against them because of their sex,

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Speaker 8: treating them differently because of their sex. If that's the case,

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Speaker 8: then certainly a law that on its face says you

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Speaker 8: can get treatment if you do it consistent with yourself,

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Speaker 8: and you can't get treatment if you do it inconsistent

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Speaker 8: with your sex should also be subject to heightened scrutiny

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Speaker 8: as sex discrimination. So we'll see how he votes, but

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Speaker 8: he gave no indication today.

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Speaker 3: Justice Alito kept pushing back on using boss Stock, saying

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Speaker 3: it was.

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Speaker 8: Different he did he dissented in Bostock. But the Court

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Speaker 8: doesn't need to rely on boss Stock here, because again,

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Speaker 8: when a law on its face says you can do something,

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Speaker 8: it's if it's consistent with sex, and not if it's

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Speaker 8: inconsistent with sex, that's sex discrimination. You don't need boss Stock.

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Speaker 8: You don't need anything other than the ability to read

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Speaker 8: the words in the statue to see that that is

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Speaker 8: a sex based classification. And for the last fifty years,

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Speaker 8: the Supreme Court has said that sex based classifications have

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Speaker 8: to satisfy what they call intermediate scrutiny. Doesn't mean they're

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Speaker 8: all struck down, but it does mean that the state

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Speaker 8: has to come forward and demonstrate that this law and

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Speaker 8: this sex classification is necess to further an important government interest.

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Speaker 8: The court below did not apply that standard, and really,

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Speaker 8: you know, that is the critical question in the case.

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Speaker 8: Did the cord below air by applying a very deferential

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Speaker 8: rational basis test.

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Speaker 3: Justice I've never heard this oral argument, just as Katanji

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Speaker 3: Brown Jackson said, I'm quite nervous and worried.

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Speaker 8: Yeah, well, I think she was reacting to many of

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Speaker 8: her conservative colleagues who seem to be not want to

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Speaker 8: engage with the principal question in the case, whether it's

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Speaker 8: sex discrimination, and instead wanted to engage on whether there's

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Speaker 8: medical uncertainty and what the evidence shows, questions that are

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Speaker 8: really not before them, and with the suggestion that if

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Speaker 8: it's a hard question and if there's medical uncertainty, we

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Speaker 8: ought to accept a law that discriminates on its face

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Speaker 8: as sex based and accept it as somehow sex neutral.

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Speaker 8: And you know, she was concerned because those kinds of

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Speaker 8: arguments were made by the State of Virginia in Loving

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Speaker 8: versus Virginia, in defending a law that prohibited interracial marriage.

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Speaker 8: The state said, and she quoted it in court, that

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Speaker 8: there's a scientific evidence that supports prohibiting people from marrying

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Speaker 8: across races, and this is not a race classification because

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Speaker 8: it applies to whites and blacks equally. The court rejected

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Speaker 8: that and said, no, when it determines what you can

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Speaker 8: do based on your race, that's a race classification. Same

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Speaker 8: thing here. When the law determines what you can do

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Speaker 8: based on your sex and whether you are acting in

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Speaker 8: a way that the state of Tennessee thinks is consistent

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Speaker 8: with how it thinks people of your sex should act,

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Speaker 8: that's a sex classification.

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Speaker 3: So the legal pundits and Supreme Court reporters all seemed

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Speaker 3: to be saying that it looks like there are five

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Speaker 3: votes to a poll Tennessee's ban. Do you agree with that?

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Speaker 8: I think the five conservatives who spoke all expressed some

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Speaker 8: unease with recognizing that this is sex discrimination. You know,

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Speaker 8: maybe that when they go back into their conference and

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Speaker 8: they study the matter further, they may decide, you know,

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Speaker 8: a law that on its face defines what can be

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Speaker 8: done and what can't be done based on whether it's

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Speaker 8: consistent with sex or inconsistent with sex, is sex based,

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Speaker 8: and it would be ludicrous to suggest if not. It

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Speaker 8: may be that the law could satisfy heightened scrutiny on remand,

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Speaker 8: and they could say, you know that heightened scrutiny should

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Speaker 8: apply with a softer touch when you're dealing with issues

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Speaker 8: of medical uncertainty. So I don't think it's absolutely clear

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Speaker 8: that our side lost today, but certainly five justices expressed

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Speaker 8: some discomfort with ruling in our favor.

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Speaker 3: This is a time for transgender rights of Donald Trump

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Speaker 3: campaigned on cutting back on transgender rights and possibly a

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Speaker 3: national ban on gender firm and care. If the Justices

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Speaker 3: affirm the Tennessee ban, what does that mean for transgender rights?

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Speaker 3: I mean, is it like a legal turning point.

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Speaker 8: You're absolutely right that this is a time where one

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Speaker 8: side of the aisle is targeting trans people for political exploitation.

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Speaker 8: For the Court to sort of allow that to happen,

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Speaker 8: and to say that a law of this type that

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Speaker 8: is facially sex based is somehow sex neutral and can

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Speaker 8: be upheld without any searching inquiry into whether the state

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Speaker 8: has a legitimate interest in whether it is furthering it

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Speaker 8: in the tailored way would just open the door to

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Speaker 8: rampant anti transdiscrimination across the country. And as was pointed

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Speaker 8: out at argument, if it's okay for Tennessee to do this,

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Speaker 8: then it would be okay for the entire country to

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Speaker 8: do for Congress to do it, and to deny to

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Speaker 8: every trans youth and every parent of every trans youth

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Speaker 8: who has determined that this treatment is medically necessary with

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Speaker 8: their doctors to deny them the ability to get it

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Speaker 8: anywhere in this country. There would be no bar to

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Speaker 8: such a draconian policy. So I think that would be

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Speaker 8: a terrible, terrible result for trans people.

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Speaker 3: The plaintiffs, how did they feel after this argument?

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Speaker 8: Well, I think they look to us, but they also

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Speaker 8: can hear the concerns and I think, you know, some

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Speaker 8: of the concerns that were articulated were pretty hostile to

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Speaker 8: who they are, to the plight that they face, to

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Speaker 8: the really really difficult decisions that you know, parents and

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Speaker 8: families have to make in these situations, and to hear,

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Speaker 8: you know, the justices say, well, it's too complicated, it's

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Speaker 8: too difficult for us to address, even where a statute

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Speaker 8: on its face discriminates on the basis of sex. Very disappointing,

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Speaker 8: very disappointing.

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Speaker 3: Thanks so much for coming on the show, David. That's

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Speaker 3: Professor David Cole of Georgetown Law. It was a historic

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Speaker 3: day at the Supreme Court as American Civil Liberties Union

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Speaker 3: lawyer Chase Strangio became the first transgender attorney ever to

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Speaker 3: argue a case in the Supreme Court.

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Speaker 9: On its face. SB one banned medical care only when

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Speaker 9: it is inconsistent with a person's birth sex. An adolescent

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Speaker 9: can receive medical treatment to live and identify as a

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Speaker 9: boy if his birth sex is male but not female,

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Speaker 9: and an adolescent can receive medical treatment to live and

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Speaker 9: identify as a girl if herber sex is female but

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Speaker 9: not male. Tennessee claims this sex based line drawing is

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Speaker 9: justified to protect children, but SB one has taken away

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Speaker 9: the only treatment that relieved years of suffering for each

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Speaker 9: of the adolescent plaintiffs.

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Speaker 3: Strangio represents transgender youse and their families who are challenging

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Speaker 3: Tennessee's ban on gender affirming care for miners. But five

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Speaker 3: of the six conservative justices voiced varying degrees of skepticism

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Speaker 3: about the arguments made by Strangio and the Biden administration.

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Speaker 3: Joining me is Michelle Goodwin, a professor at Georgetown Law.

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Speaker 3: The Biden administration was making an equal protection argument. Here

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Speaker 3: tell us a little about that.

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Speaker 10: Equal protection provides protection for groups of people against state

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Speaker 10: discrimination based on their identity, and it emerged from a

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Speaker 10: period of American slavery, from where there were distinctions between

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Speaker 10: how people who are of African descent were treated as

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Speaker 10: compared to whites, and this related to matters of education,

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Speaker 10: accessibility to accommodations, where people could live, where and how

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Speaker 10: they could travel, and many other virtually every area and

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Speaker 10: aspect of life. And over the last one hundred and

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Speaker 10: forty years or so, since the raphication of the fourteenth Amendment,

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Speaker 10: the equal Protection Clause has been used to protect individuals

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Speaker 10: against being treated unfairly because of who they are, what

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Speaker 10: they look like, these immutable characteristics. Historically, this has been

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Speaker 10: used to combat racial discrimination, It's been used to combat

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Speaker 10: sex discrimination. It's even come up within spaces of discrimination

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Speaker 10: against people because they are gay, and we saw that

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Speaker 10: with Obergerfeld decision, which allows now for same sex marriage

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Speaker 10: and also struck down federal policies that ban same sex marriage.

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Speaker 10: Now this question has emerged with regard to individuals who

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Speaker 10: are trends, and very specifically in this case, youth who

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Speaker 10: are trends who are targeted facially by this Tennessee law.

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Speaker 10: And what that means by facially is that embedded in

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Speaker 10: the law itself is a distinction and discrimination in terms

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Speaker 10: of access to medications that are gender affirming, but only

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Speaker 10: for individuals that are trends. So the Tennessee laws prohibit

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Speaker 10: puberty blockers and prohibit the use of hormone hormone treatment

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Speaker 10: for young people who identify as trends. It does not

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Speaker 10: do the same for young people who identify as this gender,

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Speaker 10: and this means that their identity on their birth certificate

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Speaker 10: conforms with what they later see as their identity.

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Speaker 3: So the Solicitor General and the ACLU argued that this

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Speaker 3: law is sex discrimination, and the Tennessee Solicitor General said, no,

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Speaker 3: what we're doing here is about distinguishing based on the

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Speaker 3: medical purpose and not based on sex right.

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Speaker 10: And what the state has argued is that it has

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Speaker 10: the right to be able to address matters of health

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Speaker 10: and safety for its state, which traditionally has been within

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Speaker 10: the purview of the states. So dating back to at

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Speaker 10: nineteen oh five, famously in Jacobson, Massachusetts, where the Supreme

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Speaker 10: Court upheld a local ordinance that mandated vaccination, it did

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Speaker 10: have a carve out that one could simply pay a

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Speaker 10: fine if one refused to do so, but that case

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Speaker 10: has been understood as providing state's authority to impose inoculation

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Speaker 10: and otherwise address public health and safety. What Tennessee wants

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Speaker 10: to do is to use this as a lever against

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Speaker 10: what actually is quite explicit sex based discrimination. Right, So

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Speaker 10: Tennessee is trying to use this as an escape latch

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Speaker 10: or hatch for a law that otherwise, if you substituted

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Speaker 10: race for it would be intolerable, such as if you

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Speaker 10: substituted religion for it, it would be intolerable, such as

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Speaker 10: if you slipped in something that was sex based. But

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Speaker 10: addressing the distinction between this women and men would be

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Speaker 10: seen as being hostile, such as Tennessee enacting a law

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Speaker 10: saying that hormone treatments will not be available to women

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Speaker 10: because of the state's paternalistic interest in the health and

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Speaker 10: safety of women. But the state believes that men can

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Speaker 10: make these decisions and are equipped to make these decisions

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Speaker 10: on their own. That would be seen as hostile to

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Speaker 10: the Fourteenth Amendments protection of individuals against unequal treatment.

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Speaker 3: So the liberal justices seemed to agree with that, and

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Speaker 3: Justice Katanji Brown Jackson actually several times brought up the

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Speaker 3: Loving case as a comparison, but the conservatives did not

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Speaker 3: seem to be buying that argument.

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Speaker 10: Well, that's not surprising, and one has to understand the

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Speaker 10: atmosphere in which this law comes about which I think

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Speaker 10: is really important, and I've loved your reporting, June. So

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Speaker 10: I hope that in this article or articles that will

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Speaker 10: be written about it, that it's centered, which is the

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Speaker 10: fact that this is a law which is a creature

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Speaker 10: of recent times. Right, gender affirming care and even care

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Speaker 10: that involves surgeries dates back decades. So why now with

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Speaker 10: this particular laws in just these recent years. The use

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Speaker 10: of hormone therapies in children is also something that is

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Speaker 10: actually not new. Children have received hormone blockers for quite

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Speaker 10: some period of time, for decades, hormones the same. This

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Speaker 10: law then, and the other merely two dozen others of

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Speaker 10: them that have been enacted in the last three years

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Speaker 10: are a reflection of political wins that were kicked up

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Speaker 10: during the last Trump presidency and that have now made

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Speaker 10: their way into this space. And what I mean specifically

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Speaker 10: about that is that there is a Christian fundamentalism that

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Speaker 10: has now made its way within American legislation. We hear

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Speaker 10: this articulated within federal policy making, and it's now even

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Speaker 10: breached its neck into our court. And I say that

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Speaker 10: as an empirical matter, because again, you know, technically, these issues,

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Speaker 10: these medical techniques have been used for decades, and it

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Speaker 10: has only been within this recent space where we've seen

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Speaker 10: equally attacks on reproductive health rights and justice that have

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Speaker 10: been quite extreme. It's within the same period of time

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Speaker 10: that we see these particular laws. Now. To make one

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Speaker 10: other note here, when Tennessee makes its argument that it's

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Speaker 10: intervening as a matter of its authority with regard to

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Speaker 10: health and safety, note that Tennessee is not making those

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Speaker 10: claims with regard to use that gender. So equally, Tennessee

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Speaker 10: could have just simply said, we don't want any kids

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Speaker 10: to have access to hormones. We don't think that it's

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Speaker 10: a good idea for young boys who are going on

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Speaker 10: the wrestling team to use the fosterone, and so we

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Speaker 10: are enacting a policy that says it's not available to

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Speaker 10: any of them. State of Tennessee could have said, you know,

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Speaker 10: if you are a dancer or a gymnast and you're

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Speaker 10: worried about gaining weight with puberty and so you wanted

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Speaker 10: to use this puberty blocker, we don't think that that's

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Speaker 10: a good reason for it. So we're going to ban

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Speaker 10: puberty blockers and hormone treatments for all kids in the state.

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Speaker 10: But that's not what Tennessee did, Althoughnessey could have done

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Speaker 10: that right, So, if Tennessee has a concern with regard

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Speaker 10: to health and safety and what these medical technologies do,

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Speaker 10: they could have said that, well, we see this as

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Speaker 10: being harmful to all children, and we don't see the

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Speaker 10: benefit as being significant enough in order to make a

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Speaker 10: carve out or an exception. But that is not what

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Speaker 10: Tennessee did. And Tennessee would be able to survive a

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Speaker 10: claim that it is engaged in unequal treatment if, in

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Speaker 10: fact it's that we truly are treating all use in

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Speaker 10: the same way. So that is not what Tennessee is

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Speaker 10: choosing to do.

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Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 3: this conversation with Professor Michelle Goodwin of Georgetown Law. We'll

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Speaker 3: discuss the implications of this decision. I'm June Grasso, and

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Speaker 3: you're listening to Bloomberg. I've been talking to Professor Michelle

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Speaker 3: Goodwin of Georgetown Law. Conservative Justice is Samuel Alito, Larrence Thomas,

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Speaker 3: and Brett Kavanaugh in particular, question the efficacy of gender

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Speaker 3: affirming care and referred to a point made by Tennessee

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Speaker 3: in its brief that claim that health authorities in Sweden, Finland,

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Speaker 3: Norway in the UK found that the medical treatments post

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Speaker 3: significant risks with unproven benefits. Here's Justice Alido challenging the

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Speaker 3: Solicitor General and asking her if she wants to reconsider

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Speaker 3: what she said about the efficacy of the treatments.

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Speaker 1: So I wonder if you would like to stand by

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Speaker 1: the statement that you made in your petition, or if

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Speaker 1: you think it would now be appropriate to modify that

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Speaker 1: and withdraw the statement that there is overwhelming evidence establishing

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Speaker 1: that these treatments have benefits that greatly outweigh the risks

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Speaker 1: and the dangers.

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Speaker 2: I of course acknowledged Justice Alito that there is a

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Speaker 2: lot of debate happening here and abroad about the proper

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Speaker 2: model of delivery of this care and exactly when adolescents

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Speaker 2: should receive it, and how to identify the adolescence for

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Speaker 2: whom it would be helpful. But I stand by that

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Speaker 2: there is a consensus that these treatments can be medically

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Speaker 2: necessary for some adolescents, and that's true no matter what

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Speaker 2: source you look at.

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Speaker 3: And just as Brett Kevanaugh asked both the Solicitor General

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Speaker 3: and the ACLU attorney whether they agreed that people can

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Speaker 3: regret transitioning.

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Speaker 6: Just one point there. You agree that there's some group

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Speaker 6: of people who receive the treatments who later wish they

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Speaker 6: hadn't and wish to detransition. I know you say it's

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Speaker 6: a smaller group. I understand that. I just want to

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Speaker 6: make sure you agree as a factual matter, there is

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Speaker 6: some set of people.

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Speaker 9: I agree with the factual matter as there is an

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Speaker 9: all areas of medicine.

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Speaker 3: So it seemed like the conservatives were all about the

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Speaker 3: medicine isn't proven here.

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Speaker 10: Well, so what's been concerning of this? And in this

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Speaker 10: regard this is not new, but it is of a

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Speaker 10: newer trend that emerged significantly starting in twenty ten. So

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Speaker 10: starting in twenty ten, with the emergence of the Tea

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Speaker 10: Party came its political sweep into office, first at the

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Speaker 10: state legislative level and then within Congress. And with that

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Speaker 10: also later came then the appointment of judges and justices

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Speaker 10: whose points of view, whose methodologies, whose understandings of law

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Speaker 10: seemed to be not much distinct from those that were

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Speaker 10: in the legislative space. And I say that as a

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Speaker 10: lead up to the following, which is that there came

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Speaker 10: to be this challenge of what is science, what is help?

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Speaker 10: Can you trust people in the medical fields? And it's

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Speaker 10: been deeply alarming the disregards for medical science. It's been alarming,

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Speaker 10: the deep disregard for learned societies, learned societies where individuals

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Speaker 10: have to earn the respects of their colleagues based on

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Speaker 10: peer reviewed scholarship, based on the quality of the scholarship,

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Speaker 10: based on the research that you know, vetted research, vetted

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Speaker 10: research now seems to have a There seems to be

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Speaker 10: a low respect or limited respect for learned societies and

440
00:28:37,680 --> 00:28:42,560
Speaker 10: for scientific evidence. And one sees that across a series

441
00:28:42,600 --> 00:28:48,560
Speaker 10: of cases preceding Scremetti. So one sees that disregard. Let's say,

442
00:28:48,560 --> 00:28:51,680
Speaker 10: in Burwell v. Hobby Lobby, where the Supreme Court conflates

443
00:28:52,240 --> 00:28:57,040
Speaker 10: contraceptive with abortizations in an alarming way, in a way

444
00:28:57,120 --> 00:29:02,760
Speaker 10: that still deserves significant distension. Unpacking where you have for

445
00:29:02,920 --> 00:29:07,360
Speaker 10: profit corporations that claim that they have religious perspectives and

446
00:29:07,400 --> 00:29:10,280
Speaker 10: those religious perspectives should be respected and honored by the Court,

447
00:29:10,320 --> 00:29:14,360
Speaker 10: which Justice Alito grants. And then where they say they

448
00:29:14,400 --> 00:29:17,280
Speaker 10: see no difference between an IUD and an abortifation, they

449
00:29:17,320 --> 00:29:22,040
Speaker 10: are technically and very significantly different, and iud will not

450
00:29:22,160 --> 00:29:25,840
Speaker 10: perform an abortion. They truly are different. And so there

451
00:29:25,960 --> 00:29:30,280
Speaker 10: is in one season also in the Supreme Court's case

452
00:29:31,040 --> 00:29:33,880
Speaker 10: the Carhart case, which is another case that involved abortion,

453
00:29:34,040 --> 00:29:37,200
Speaker 10: where Justice Kennedy before he leaves the Court says that,

454
00:29:37,320 --> 00:29:41,640
Speaker 10: you know, women feel regret after having abortions. Technically, we know,

455
00:29:41,960 --> 00:29:46,959
Speaker 10: through empirical research that has involved literally thousands of people

456
00:29:47,000 --> 00:29:49,840
Speaker 10: who have had abortions, that that happens to not be true.

457
00:29:50,080 --> 00:29:54,160
Speaker 10: It is technically just simply not true. But again, this

458
00:29:54,400 --> 00:29:58,120
Speaker 10: disregard for science, this disregard for health, and the disregards

459
00:29:58,440 --> 00:30:01,479
Speaker 10: for social science as may making its way, you know,

460
00:30:01,480 --> 00:30:05,479
Speaker 10: as part of what is being espoused legislatively and what

461
00:30:05,520 --> 00:30:09,560
Speaker 10: we hear coming from the Court now on the question,

462
00:30:09,960 --> 00:30:13,400
Speaker 10: it's not that it's not a valid question or an

463
00:30:13,400 --> 00:30:17,280
Speaker 10: important question. The problem is how the Court refuses to

464
00:30:17,400 --> 00:30:22,560
Speaker 10: engage in evidence is the problem. And in fact, technically,

465
00:30:22,560 --> 00:30:25,040
Speaker 10: on that question, with regards to puberty blockers, what we

466
00:30:25,120 --> 00:30:29,360
Speaker 10: know is that with puberty blockers that once they are

467
00:30:29,400 --> 00:30:32,480
Speaker 10: no longer used, then their effects goes away.

468
00:30:33,240 --> 00:30:37,560
Speaker 3: I didn't hear that mentioned in the oral arguments.

469
00:30:37,240 --> 00:30:40,320
Speaker 10: So it's surprising, right, like that's the whole Like if

470
00:30:40,360 --> 00:30:46,680
Speaker 10: a puberty blocker doesn't less. If you're using a puberty blocker,

471
00:30:47,320 --> 00:30:51,320
Speaker 10: Let's say there someone is fourteen, fifteen years old using

472
00:30:51,360 --> 00:30:57,200
Speaker 10: a puberty blocker. The impression that is given is that, oh,

473
00:30:57,240 --> 00:31:00,360
Speaker 10: my goodness, now from the age of fifteen, and let's

474
00:31:00,360 --> 00:31:03,400
Speaker 10: say when they're using it or fourteen, that that puberty

475
00:31:03,480 --> 00:31:07,120
Speaker 10: that it affects them. They're twenty and there's still no Actually,

476
00:31:07,280 --> 00:31:09,680
Speaker 10: if they used it for three months and then stop,

477
00:31:10,160 --> 00:31:12,880
Speaker 10: it would go away. Puberty would be on set. And

478
00:31:12,880 --> 00:31:16,160
Speaker 10: that's worth noting you, no matter whether the child is

479
00:31:16,680 --> 00:31:22,040
Speaker 10: sist or transgender. Right this the science is important to

480
00:31:22,560 --> 00:31:26,360
Speaker 10: note and then to be able to adjudicate from there.

481
00:31:27,120 --> 00:31:31,680
Speaker 10: But when scientific evidence is ignored such then that the

482
00:31:31,960 --> 00:31:38,840
Speaker 10: justices ask questions based not on the scientific evidence but

483
00:31:38,960 --> 00:31:42,440
Speaker 10: based on an assumption or that that assumption is furthered

484
00:31:42,560 --> 00:31:46,400
Speaker 10: and bakes its way into law, can be dangerous. And

485
00:31:46,440 --> 00:31:49,520
Speaker 10: in fact, when Justice Katanji Brown Jackson asks those questions

486
00:31:49,520 --> 00:31:53,200
Speaker 10: related to loving, that actually matters too. So it's possible

487
00:31:53,240 --> 00:31:56,120
Speaker 10: to read the Loving decision as a case that simply

488
00:31:56,160 --> 00:32:00,840
Speaker 10: involves into racial marriage and a state's law that strong headed,

489
00:32:00,960 --> 00:32:05,240
Speaker 10: but that bans interracial marriage. If you read the briefs

490
00:32:05,400 --> 00:32:08,120
Speaker 10: and listen to the oral arguments, then what you know

491
00:32:08,320 --> 00:32:12,400
Speaker 10: is that there is this hocus pocus with regards to

492
00:32:12,480 --> 00:32:15,360
Speaker 10: medicine that comes in there too. If a state is

493
00:32:15,400 --> 00:32:20,040
Speaker 10: alleging that if inter racial marriages are tolerated and allowed,

494
00:32:20,280 --> 00:32:25,800
Speaker 10: there will be a term mongoloi children emerges in the

495
00:32:25,840 --> 00:32:29,440
Speaker 10: briefing that there will be children with disabilities that are

496
00:32:29,480 --> 00:32:32,840
Speaker 10: born from these union that will overwhelm the state. This

497
00:32:33,000 --> 00:32:35,360
Speaker 10: is the same argument that's used in nineteen twenty seven

498
00:32:35,400 --> 00:32:37,480
Speaker 10: and Boughs v. Bell, one of the most egregious cases

499
00:32:37,480 --> 00:32:41,480
Speaker 10: in the United States, where the court sanctions compulsory sterilization,

500
00:32:41,840 --> 00:32:46,320
Speaker 10: again under this notion that there will be people who

501
00:32:46,760 --> 00:32:51,320
Speaker 10: are unfit to live in our society, and those unfit

502
00:32:51,440 --> 00:32:55,600
Speaker 10: people are going to burden our society for all of

503
00:32:55,640 --> 00:32:58,239
Speaker 10: their unfitness, and Justice Holm says, better than to let

504
00:32:58,320 --> 00:33:01,280
Speaker 10: them starve for their im facility, society can prevent those

505
00:33:01,320 --> 00:33:05,000
Speaker 10: who are manifestly unfit from continuing their kind in case

506
00:33:05,080 --> 00:33:07,000
Speaker 10: has nothing to do with health and science, and yet

507
00:33:07,000 --> 00:33:09,320
Speaker 10: health and science is all around it, you know, playing

508
00:33:09,360 --> 00:33:12,520
Speaker 10: this role that is actually not a credible About half.

509
00:33:12,360 --> 00:33:16,000
Speaker 3: The states have these kinds of bands. If the court

510
00:33:16,240 --> 00:33:18,840
Speaker 3: upholds this ban, what happens in the other.

511
00:33:18,720 --> 00:33:22,440
Speaker 10: States those bans, many of them are in effect. That

512
00:33:22,640 --> 00:33:24,360
Speaker 10: there are some that are not an effect, but it

513
00:33:24,440 --> 00:33:26,600
Speaker 10: means that those that are not an effect can go

514
00:33:26,640 --> 00:33:29,560
Speaker 10: into effect if the court upholds this ban. And that

515
00:33:29,680 --> 00:33:33,080
Speaker 10: also means that parents in those states who want to

516
00:33:33,080 --> 00:33:36,680
Speaker 10: provide care for their children may end up leaving those states.

517
00:33:36,720 --> 00:33:38,680
Speaker 10: They may move out of those states, they may move,

518
00:33:38,760 --> 00:33:41,440
Speaker 10: they may you know, travel to other states for their

519
00:33:41,520 --> 00:33:44,400
Speaker 10: children to get the care that they believe that their

520
00:33:44,520 --> 00:33:49,000
Speaker 10: children need and deserve. So one might see parallels that

521
00:33:49,040 --> 00:33:53,640
Speaker 10: one saw in relation to reproductive health matters where states

522
00:33:53,840 --> 00:33:57,080
Speaker 10: enacted abortion bands and people have had to travel from

523
00:33:57,200 --> 00:33:59,280
Speaker 10: you know, states that have bands in order to get

524
00:33:59,320 --> 00:34:01,440
Speaker 10: the healthcare that they desire.

525
00:34:01,760 --> 00:34:03,680
Speaker 3: So nice to have you on the show again, Michelle.

526
00:34:03,880 --> 00:34:07,680
Speaker 3: That's Professor Michelle Goodwin of Georgetown Law. And that's it

527
00:34:07,720 --> 00:34:10,319
Speaker 3: for this edition of the Bloomberg Law Show. Remember you

528
00:34:10,320 --> 00:34:12,800
Speaker 3: can always get the latest legal news on our Bloomberg

529
00:34:12,880 --> 00:34:16,520
Speaker 3: Law Podcast. You can find them on Apple Podcasts, Spotify,

530
00:34:16,719 --> 00:34:21,760
Speaker 3: and at www dot Bloomberg dot com Slash podcast Slash Law.

531
00:34:22,040 --> 00:34:24,719
Speaker 3: I'm June Grosso and you're listening to Bloomberg