The Sixth Circuit entered an opinion ordering the lower courts (Tennessee and Kentucky) to reconsider their original rulings, in view of a 2-1 decision that says “this is a new area — tread lightly, as to underage humans“.

That is singularly unhelpful. This outcome is certain to be appealed to the Supremes now. But do go read the dissent (starting at page 42). It is where the likely 5-4 majority of the Supremes will ultimately land, Condor predicts:

…Much of the [majority]’s analysis focused on the rights and role of parents in American society as caretakers for their children. “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized,” but “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 U.S. at 603. “Simply because the decision of a parent . . . involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure.” Id. Ultimately, “[p]arents can and must make those judgments.” Id. (emphasis added).

Applying these principles, Tennessee’s and Kentucky’s statutes plainly intrude on parental autonomy in violation of Parent Plaintiffs’ substantive due-process rights. Although this case presents issues at the center of political controversies, the legal analysis on this point is rather simple. “Parents possess a fundamental right to make decisions concerning the medical care of their children.” Kanuszewski, 927 F.3d at 418. Tennessee’s and Kentucky’s statutes prohibit parents from deciding whether medical treatment otherwise available to adults is appropriate for their minor children. And given that the statutes fail intermediate scrutiny, they fail strict scrutiny as well….

[…A] state cannot simply deem a treatment harmful to children without support in reality and thereby deprive parents of the right to make medical decisions on their children’s behalf. Allowing the state to do so is tantamount to saying there is no fundamental right. Cf. Schall, 467 U.S. at 265 (“[I]f parental control falters, the State must play its part as parens patriae.” (emphasis added)); Prince, 321 U.S. at 166 (noting “that the custody, care and nurture of the child reside first in the parents” (emphasis added)). A fundamental right backed up by strict scrutiny demands more. “Of course [judges] are not scientists, but neither may [they] abandon the field when government officials… infringe a constitutionally protected liberty. The whole point of [heightened] scrutiny is to test the government’s assertions.” S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (statement of Gorsuch, J.). Our nation’s constitutional history teaches that, when a treatment option remains otherwise available to the public, legislatures should not decide whether that treatment is right or wrong for minor children; parents should make these decisions….

So it goes. On to the nation’s highest court. Have a good weekend, one and all — despite this rather patrician, doctrinaire setback at the Sixth Circuit. Onward.

नमस्ते