What’s Nature Got to Do With State Power

Ezra Young

In the October 2024 Term, the U.S. Supreme Court is poised to decide Skrmetti v. United States. At issue is whether trans healthcare bans¹  which civilly prohibit and criminally punish provision of care, like Tennessee’s SB1, violate the Equal Protection Clause of the Fourteenth Amendment.² Oral argument will be held today, December 4, 2024.

Shery Colb and Michael Dorf’s article, Mandating Nature’s Course, forthcoming in the Cornell Law Review, is a must read for anyone following Skrmetti as well as those more broadly interested in constitutional limits over government health power.

The genius of Colb and Dorf’s article is its observation that defenders of laws which severely restrict personal liberties recast these incursions as simply prohibiting interference with nature taking its course (NTIC) (P. 109). So construed, bans on abortion, trans healthcare, and euthanasia are cast as merely prohibiting wrongful acts against nature’s will. So conceptualized, NTIC arguments effectively mask that these laws impose affirmative obligations upon individuals.

Colb and Dorf accurately note that proponents of healthcare bans do not singularly rely upon NTIC arguments in litigation. But the authors convincingly argue that NTIC arguments figure so prominently in the promotion and defense of healthcare bans that they merit deeper consideration (P. 120). Taking trans healthcare bans as one example, these NTIC arguments operate on the pretense that sex assignment at birth is natural and immutable.³ On that premise, bans on trans healthcare are cast as common sense and apolitical government prohibition of medical interventions which, if pursued, would interfere with NTIC (Pp. 123–26). Similar arguments are front and center in constitutional challenges to abortion (Pp. 120–23) and euthanasia bans (Pp. 126–30).

Mandating Nature’s Course makes an important contribution to literature exploring the constitutional metes and bounds of government health power. For the last century, the Supreme Court has somewhat consistently recognized that government’s abstract interest in public health does not diminish an individual patient’s liberty interests in making her own treatment decisions.⁴ However, in the context of abortion as evidenced by Dobbs and euthanasia as reflected in Glucksberg and its progeny, appeals to nature short circuit what should be straight forward constitutional analysis. Appeals to nature—even those dubiously premised on pseudoscience—obfuscate the extent to which healthcare bans infringe upon bodily autonomy. So cast, patients’ protests of healthcare bans are conceived as futile umbrage at Nature, not constitutionally significant challenges to government overreach.

In a just world, Mandating Nature’s Course should give the Supreme Court pause. The Court’s solemn responsibility is supposed to be definitively determining what the law requires. But dubious appeals to nature, like NTIC arguments, have led the Court adrift from its appropriate role in safeguarding individual constitutional rights against government incursion. Rather than seriously inquiring as to whether government may ban certain healthcare when sought by certain persons, the Court has bent over backwards to legitimate restrictions on politically and morally contested treatments at the expense of doctrinal coherence.

If nothing else, Mandating Nature’s Course helpfully shines light on a long-overlooked frame by which the Supreme Court has side-stepped its constitutional duty in challenges to healthcare bans. As Colb and Dorf conclude, once we come to understand NTIC arguments for what they are—dubiously premised on the notion that letting NTIC is preferrable to intervention—we can at the least begin the hard work of assessing whether government has the power to coerce certain medical decisions in the first place (Pp. 144–50).

1. I prefer to use the term “trans healthcare bans” rather than “gender affirming care bans” for two principle reasons. First, because the laws falling under this umbrella specially target trans persons. Second, because use of euphemisms like “gender-affirming” betray the seriousness of treatment. See Raewyn Connell, Transsexual Women and Feminist Thought: Toward New Understanding and New Politics, 37 Signs 857, 870 (2012) (“There is nothing pretty about gender reassignment; these are rough measures and have rough results. There is no cause to euphemize them as body modification or glamorize them as an aesthetic adventure. Reassignment, though slow, has something of the character of emergency medicine: dealing with a critical situation well enough to allow life, including social life, to continue.”).
2. The parties below as well as the United States filed separate requests for certiorari. Ultimately, the Supreme Court accepted the Solicitor General’s petition, which frames the question presented as follows: “Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity’, Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.” Brief for Petitioner at I, United States v. Skrmetti, (No. 23-477), (U.S. Aug. 27, 2024).
3. For a similar account of the mechanics of trans healthcare bans, see Ezra Ishmael Young, The Unconstitutionality of Trans Healthcare Bans (Oct. 17, 2024), available at SSRN, 47–52 (arguing that “natural” sex classifications are not neutral for equal protection purposes).
4. See, e.g., Yellowbear v. Lampert, 741 F.3d 48, 57 (10th Cir. 2014) (Gorsuch, J.) (cleaned up) (“At some great height, after all, almost any state action might be said to touch on ‘public health and safety’ and measuring a highly particularized and individual interest’ in the exercise of a civil right directly against these rareified values inevitably makes the individual interest appear the less significant.”).