7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

10th Circuit Upholds Colorado's Ban on Conversion Therapy

In Chiles v. Salazar, (10th Cir., Sept. 12, 2024), the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. Rejecting petitioner's free speech argument, the majority said in part:

The statute is part of Colorado’s regulation of the healthcare profession and, as the district court correctly found, applies to mental health professionals providing a type of prohibited treatment to minor patients. On the record before us, we agree the MCTL regulates professional conduct that “incidentally involves speech.”....

Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity. She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity.....

Rejecting petitioner's free exercise claim, the majority said in part: 

Because, on the record before us, we find Ms. Chiles has failed to show the MCTL lacks neutrality and general applicability, the district court did not abuse its discretion in finding the MCTL is subject to rational basis review..... And ... the MCTL survives rational basis review...

Judge Hartz dissenting said in part:

The issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As I understand controlling Supreme Court precedent, the answer is clearly no.... 

In particular, a restriction on speech is not incidental to regulation of conduct when the restriction is imposed because of the expressive content of what is said. And that is the type of restriction imposed on Chiles....

The consensus view of organizations of mental-health professionals in this country is that only gender-affirming care (including the administration of drugs) should be provided to minors, and that attempts to change a minor’s intent to change gender identity are dangerous—significantly increasing suicidal tendencies and causing other psychological injuries. The organizations insist that this view reflects the results of peer-reviewed studies.

But outside this country there is substantial doubt about those studies. In the past few years there has been significant movement in Europe away from American orthodoxy.....

Advocate reports on the decision.

[Corrected: The majority opinion was written by Judge Rossman. Judge Hartz dissented. The prior version of this post incorrectly identified the Judge Rossman as the dissenter instead of being the author of the majority opinion.]

Texas Sues HHS Over Rule Protecting Privacy of Information About Out-of-State Abortions

Last week, Texas Attorney General Ken Paxton filed suit against the U.S. Department of Health and Human Services challenging two HHS privacy rules that limit entities covered by HIPPA from disclosing certain health care information about patients to state law enforcement officials. The rule adopted earlier this year (see prior posting) specifically prohibits disclosure of information to enforcement officials in a woman's home state for their use in a civil, criminal or administrative proceeding investigating reproductive health care (including abortions) provided in another state where the health care was lawful in the state where it was provided. The complaint (full text) in State of Texas v. U.S. Department of Health and Human Services, (ND TX, filed 9/4/2024), alleges in part that HIPAA explicitly preserves state investigative authority and does not give HHS authority to promulgate rules limiting has HIPPA regulated entities may share information with state governments. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

11th Circuit Denies En Banc Rehearing in Alabama's Ban on Gender-Affirming Treatment of Minors

In August 2023, the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.

Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:

The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....

Judge Lagoa filed a concurring opinion, saying in part:

The propriety of the medications at issue is a quintessential legislative question, not a constitutional one.  Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures.  But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade.... 

Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status....  But the Act applies equally to everyone regardless of their sex or transgender status.  And transgender status is not a classification protected by the Equal Protection Clause.

Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:

This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.

Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:

In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....

The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...

Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:

... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....

We ... receive no medical training in law school.  We don’t go through residencies or fellowships.  We don’t engage in medical research.  And we don’t practice medicine at all.  In fact, many of us went into the law because, among other reasons, we weren’t good at math or science.  Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....

... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status.  So either classification requires us to apply intermediate scrutiny.  When we do that, the Act cannot survive.  

Illinois Governor Signs 3 Bills Protecting Abortion Rights

On Aug. 7, Illinois Governor J.B. Pritzker signed HB4867 (full text) which amends the Illinois Human Rights Act to make discrimination on the basis of reproductive health decisions, including decisions relating to termination of a pregnancy, unlawful discrimination. He also signed HB 5239 (full text) that prohibits the state from assisting out-of-state officials or individuals who are seeking to impose civil or criminal liability on a person or entity for reproductive health care activity that was lawful in Illinois. And he signed HB 581 (full text) which requires hospital emergency rooms to provide stabilizing treatment including abortion when "abortion is necessary to resolve the patient's injury or acute medical condition that is liable to cause death or severe injury or serious illness." Lawndale News reports on the governor's action.

Organizations Promoting Abortion Pill Reversal Sue New York Attorney General

Three anti-abortion organizations that promote abortion-pill reversal this week filed suit in a New York federal district court against New York Attorney General Letitia James. The complaint (full text) in Summit Life Outreach Center, Inc. v. James, (WD NY, filed 8/7/2024), alleges in part:

In a blitz attack that month, James mailed boilerplate notices-of-intention-to-sue (NOIs) to eleven New York-based pregnancy help organizations (PHOs) and the nonprofit operator of the national Abortion Pill Reversal Network. The NOIs alleged (without evidence) that recipients’ truthful noncommercial statements about APR constituted commercial fraud under two state statutes....

Plaintiffs in this action, pro-life organizations whose mission is informed by their religious conviction that abortion is the killing of an innocent human being, are not parties to that state court suit. But James’ years-long campaign of intimidation against pro-lifers creates considerable “risk of catastrophic harm” that Plaintiffs could soon suffer if (and highly likely when) they are targeted by similar lawfare over their own similar pro-APR communications.... Plaintiffs indeed already are being harmed because the litigative sword of Damocles that hangs above their heads has chilled their speech and forced them to discontinue communicating the science of APR.

Plaintiffs thus are compelled to file this suit to defend their rights to free speech, free exercise of religion, and due process under the First and Fourteenth Amendments. They seek declaratory and injunctive relief, and other such relief as the Court may deem just and equitable, so they can continue speaking about APR and refocus their attention on women in need.

 Thomas More Society issued a press release announcing the lawsuit.

Nebraska Law on Abortion and Transgender Care Does Not Violate Single-Subject Rule

In Planned Parenthood of the Heartland, Inc. v. Hilgers, (NE Sup. Ct., July 29, 2024), the Nebraska Supreme Court in a 6-1 decision held that a 2023 Nebraska statute, L.B. 574, which both restricts abortions and restricts gender-altering care for minors does not violate the state Constitution's single subject requirement for legislation.  Chief Justice Heavican's majority opinion said in part:

... [W]e reject Planned Parenthood’s contention that L.B. 574 is unconstitutional because its regulation of abortion does not further its regulation of gender-altering care and vice versa. Here, even though abortion and gender-altering care are distinct types of medical care, and even though L.B. 574 effectuates its purpose or object differently for each type, when broadly construing L.B. 574, all its provisions certainly are encompassed within the regulation of permissible medical care. We emphasize that, in our determination that the provisions of L.B. 574 each seek to regulate medical care, we make no comment on the substance of L.B. 574. Our focus is on whether L.B. 574 complies with article III, § 14.

Justice Papik, joined by Justice Stacy filed a concurring opinion. Justice Miller-Lerman filed a dissenting opinion.

Liberty Counsel issued a press release announcing the decision.

Arizona Governor Vetoes Bill That Would Have Required Equal Insurance Coverage and Access for Gender Detransitioning

On June 18, Arizona Governor Katie Hobbs vetoed (full text of veto letter) vetoed Senate Bill 1151 (full text) that would have required health insurers that cover gender transition procedures to also provide coverage for gender detransition procedures. It would also have required physicians and hospitals that provide gender transition procedures to provide or pay for gender detransition procedures. It also would have required insurance companies to report data to the state (without identifying information on patients) on detransition claims. Governor Hobbs in her veto letter said that the bill is unnecessary and would create privacy risks for patients. Catholic News Agency reported on the Governor's veto, quoting many who disapproved of her action.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Supreme Court Grants Cert. in Ban on Gender-Affirming Care for Minors

The U.S. Supreme Court today granted review in United States v. Skrmetti, (Sup. Ct., Docket No. 23-477, certiorari granted 6/24/2024). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) SCOTUSblog reports on the Supreme Court's action.

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

Supreme Court Says Plaintiffs Lack Standing To Challenge FDA's Rules on Abortion Drugs

In Food and Drug Administration v. Alliance for Hippocratic Medicine, (Sup. Ct., June 13, 2024), the U.S. Supreme court today held unanimously that plaintiffs who are challenging the FDA’s rules on prescribing and distributing the abortion drug mifepristone lack standing to bring the lawsuit.  The Court said in part:

Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything….

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes. 

“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

Justice Kavanaugh wrote the Court’s opinion, and Justice Thomas filed a concurring opinion.

AP reports on the decision.

Louisiana Legislature Bans Fraudulently Giving Women Abortion Pills; Reclassifies Abortion Pills as Dangerous Drugs

The Louisiana legislature yesterday gave final passage to Senate Bill 276 (full text). The bill creates the crime of "coerced criminal abortion by means of fraud", defined as "knowingly and intentionally engag[ing] in the use of an abortion-inducing drug on a pregnant woman, without her knowledge or consent, with the intent to cause an abortion."  The bill also categorizes the abortion drugs Mifepristone and Misoprostol as Schedule IV controlled substances which it is illegal to possess except pursuant to a valid prescription. It goes on to provide, however, that it is not a violation for a woman to possess these drugs for her own consumption.

AP reports on the bill in greater detail and explains:

[The bill's sponsor, Sen. Thomas] Pressly said both the bill and the amendment were motivated by what happened to his sister Catherine Herring of Texas. In 2022, Herring’s husband slipped her seven misoprostol pills in an effort to induce an abortion without her knowledge or consent.

The bill now goes to Governor Jeff Landry who is expected to sign the bill.

South Carolina Legislature Passes Bill Barring Gender Transition Care for Minors and Mandating Schools Notifying Parents

The South Carolina legislature this week gave final passage to H4624 (full text) which prohibits health care professionals from providing puberty blocking drugs, cross-sex hormones or gender reassignment surgery to individuals under 18 years of age. It also bars use of public funds for gender transition procedures and provides:

(A) A nurse, counselor, teacher, principal, or other official or staff at a public school shall not knowingly: (1) encourage or coerce a minor to withhold from the minor's parent or legal guardian the fact that the minor's perception of his or her gender is inconsistent with his or her sex, as defined in Section 44-42-310; or (2) withhold from a minor's parent or legal guardian information related to the minor's perception that his or her gender is inconsistent with his or her sex, as defined in Section 44-42-310.

(B) The principal, vice principal, or counselor at a public school shall immediately notify in writing a minor's parent or legal guardian if the minor: (1) asserts to any school employee that the minor's gender is inconsistent with his or her sex, as defined in Section 44-42-310; or (2) requests a school employee to address a minor using a pronoun or title that does not align with the minor's sex.

The bill now goes to Governor Henry McMaster for his signature. The Hill reports on the passage of the bill.

NY Sues Crisis Pregnancy Centers for False Advertising

New York's Attorney General filed suit this week in a New York state trial court against eleven crisis pregnancy centers and their parent organization alleging that they have violated the state's deceptive business practices and false advertising laws in promoting abortion pill reversal. The complaint (full text) in People of the State of New York v. Heartbeat International, Inc., (NY County Sup. Ct., filed 5/6/2024), alleges in part:

There is no competent and reliable scientific evidence to substantiate Defendants’ claims about APR’s efficacy and safety, including the central promise that APR can “reverse” the “abortion pill.”  The process has never been FDA approved, and researchers and major medical professional associations in the United States and abroad, including the American College of Obstetricians and Gynecologists (“ACOG”), have warned that it is unproven and unscientific. 

New York Attorney General Letitia James issued a press release announcing the filing of the lawsuit.

Supreme Court Hears Arguments on Whether Federal Emergency Treatment Law Preempts State Abortion Ban

The U.S. Supreme Court on Wednesday heard oral arguments in Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727). (Audio and Transcript of full oral arguments). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. The Court took the case without waiting for 9th Circuit review. (See prior posting.) SCOTUSblog reports on the oral arguments.

Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

Justice Kavanaugh, joined by Justice Barrett, filed a concurring opinion, saying in part:

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

Justice Jackson, joined by Justice Sotomayor, filed a dissenting opinion, saying in part:

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

Australian State Enacts Elaborate Conversion Therapy Baan

In the Australian state of New South Wales, with assent by the Governor on April 3, the Conversion Practices Ban Bill 2024 became law, effective in April 2025. The new law bans treatments or efforts to change or suppress a person's sexual orientation or gender identity where the treatment or efforts cause substantial mental or physical harm or endanger an individual's life. Violations may be punished with up to 5 years in prison. The law however includes a number of specific examples of both gender-affirming treatment and religious expression that are not prohibited. It provides in part:

A conversion practice does not include— (a) a health service or treatment provided by a registered health practitioner that— (i)  the registered health practitioner has assessed as clinically appropriate ... and (ii) complies with all relevant legal, professional and ethical requirements,

Examples ... [are]  • genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition • genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity • genuinely advising an individual about the potential impacts of gender affirming medical treatment.

(b) genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or

(c) the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity— (i) an expression, including in prayer, of a belief or principle, including a religious belief or principle, (ii) an expression that a belief or principle ought to be followed or applied.

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section— (a) stating what relevant religious teachings are or what a religion says about a specific topic, (b)  general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions, (d)  parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

The law also sets out an elaborate civil complaint structure. Unlike most statutes passed by U.S. jurisdictions, the Australian law appears to apply to adults as well as to minors. Law & Religion Australia reports on the new law.

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Montreal Archdiocese Sues for Exemption from End-of-Life Care Requirements

 In Canada, the Archdiocese of Montreal has filed suit in a Quebec trial court seeking an exemption from amendments to the province's Act Respecting End-of-Life Care which require all palliative care homes to provide "medical aid in dying." The Archdiocese operates a 12-bed palliative care home in Montreal. The full text of the complaint in Les Oeuvres de Charite de L'Archeveque Catholique Romain de Montreal v. Procureur General du Quebec, (Couer Superieure, filed Feb. 2, 2024) is available only in French. An English Language Press Release from the Archdiocese describes the lawsuit in part::

To our profound dismay, the amendment to the Act respecting end-of-life care and other legislative provisions, SQ 2023, c. 15 (the new Act), effective since December 7, 2023, has regretfully prohibited palliative care homes from excluding "medical aid in dying" from their services.  

A consequence of this new law is that actions we find morally unacceptable may now occur on our property.....  

In essence, the Appeal is simply seeking permission for palliative care homes, similar to health professionals, to "refuse to administer medical aid in dying based on their personal convictions and [to] refuse to participate in its administration for the same reason."  

We strongly believe that by mandating all palliative care homes to provide "medical aid in dying" without considering their mission, values, and the support of their community, the new law significantly undermines the exercise of the right to freedom of religion and conscience, as well as the right to the peaceful enjoyment and free disposal of one's property, guaranteed by the Canadian Charter and the Quebec Charter.   

Palliative care homes, given that they operate as community organizations and not public institutions, should retain the ability to define their own mission and the services they are willing to offer, as was the practice until recently....

Canadian Press reports on the lawsuit.