Republicans in the Florida House of Representatives have passed a bill authorizing the state to take custody of children if their parents have agreed to give them gender-affirming health care. The law is obviously terrible policy. And it’s particularly hypocritical given that conservatives claim to support parental rights in making decisions about children’s well-being. The proposed law is also unlawful and certainly unconstitutional.
The reasons why illuminate core questions of government control of our bodies — issues that, in the post-Dobbs era, also come up in the context of abortion rights. Moreover, Florida is hardly alone in attempting to restrict minors’ access to gender-affirming care; more than a dozen states have such restrictions, whether by criminalizing the provision of such care (as North Dakota did this week) or by classifying it as child abuse (as Texas tried to do last year).
One problem with the Florida bill is that it overrides regulatory decisions made by the Food and Drug Administration. The drugs known as puberty blockers, which can be used in the treatment of gender-affirming care, have been around for 30 years and are safe and legal when prescribed by a physician. The Florida law is designed to make it impossible to administer those drugs to minors in the state.
Under the principal known as federal preemption, Congress can choose to assume exclusive federal control over regulating a given area, such as nuclear power or pharmaceuticals. Congress exercised that power to make the FDA the sole judge of what drugs are appropriate for medical use and how they should be regulated.
That means the states cannot have their own systems for second-guessing the FDA’s judgments. If they could, we would not have a single national pharmaceutical industry, but 50 — controlled by the desires of regulators in 50 different states. There is a relevant comparison here to potential state regulation of mifepristone, the drug used for medical abortions. So far, the issue has not yet been fully adjudicated, but states should not be able to ban the use of a drug approved by the FDA.
Turning to the Constitution, there are at least two provisions that the Florida bill would violate. First, by denying medical care to trans people in particular, the law discriminates. For example, under the bill parents could choose to give puberty blockers to a child experiencing early puberty. The fact that the same parents could not use the same drugs when prescribed by a physician for gender dysphoria shows the unconstitutional double standard.
Under the equal protection doctrine, discrimination on the basis of gender orientation would have to be justified by an important government interest. Prohibiting trans children from receiving gender-affirming care does not and should not qualify.
The second constitutional problem derives from the doctrine of substantive due process. As articulated in Supreme Court cases like Lawrence v. Texas and Obergefell v. Hodges, this principle argues that each person is entitled to decide on issues that implicate dignity and autonomy without interference from the government. This is the principle that says that consenting adults can have sex with the partner of their choice. It’s also part of the court’s rationale for establishing marriage equality. Unquestionably, the choice to undergo medical treatment for gender affirmation is a similarly fundamental choice.
Here’s where things get tricky. In the Dobbs decision, the Supreme Court not only overturned Roe v. Wade but also the 1992 case Planned Parenthood v. Casey, which preserved the abortion right and justified it in terms of protecting dignity and autonomy. Indeed, the dignity and autonomy principle in the Lawrence and Obergefell decisions, both written by Justice Anthony Kennedy, quoted the Casey decision. In the Dobbs majority opinion, though, Justice Samuel Alito insisted that the court was not overturning Lawrence or Obergefell even though it did overturn Casey. So the autonomy and dignity principle is still law.
Because of Alito’s carve-out, states can now prohibit abortion because of its implication for the potential life of the fetus. The state, however, cannot prohibit gender-affirming care, which does not implicate any rights to life.
If the bill were to pass and its constitutionality be litigated in court, Florida would no doubt argue that protecting children from gender-affirming treatment is an interest on par with protecting fetal life. The fundamental difficulty with this argument, from a legal perspective, is that under US law, minor children are ordinarily treated as being under the control of their parents. It is up to parents to decide what is in children’s best interest, not the state. The only exception would be in a case of severe abuse, when the state is authorized to remove a child from parental custody following a hearing in which the parents would have the opportunity to be heard.
If Florida were to assert that gender-affirming care was tantamount to abuse, as the draft law strongly suggests, a court would have to reject this claim. To see why, and to see the depths of the bill’s hypocrisy, consider what conservatives would say to a state or local government that outlawed parental circumcision of boys. Their response would surely be that it is up to parents to make that determination. Conservatives would then be the ones citing substantive due process and equal protection, and potentially religious liberty.
With any luck, the extreme Florida bill will not become a law and the world can be spared the judicial process of rejecting it. That’s why it’s especially important to acknowledge now that it’s both illegal and unconstitutional.
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ABOUT THE WRITER
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
