The state of Alabama has cited the Supreme Court’s decision striking down Roe v. Wade in its efforts to deny gender-affirming healthcare to young people. In a brief filed early this week, the state’s attorney general’s office echoed language in Justice Samuel Alito’s opinion ending the constitutional right to abortion in the U.S. The Alabama AG argued that gender-affirming treatments are not “deeply rooted in this nation’s history and tradition.”
“It is no surprise that Alabama and other extremely conservative states are going to take up that invitation as forcefully as they can,” Shannon Minter, legal director of the National Center for Lesbian Rights, said. “Justice Thomas’s concurrence was a declaration of war on groups already under attack, and we expect the hostility to be escalated.”
Alabama is asking the 11th U.S Circuit Court of Appeals to lift an injunction against the state’s “Vulnerable Child Compassion and Protection Act.” Signed into law by Gov. Kay Ivey this spring, the law makes it a felony to provide gender-affirming medication to people under 19. It was reportedly the first law of its kind to level criminal penalties at doctors who provide gender-affirming care. Doctors face up to 10 years in prison under the law, which was blocked by federal judge in May.
The state was already appealing the injunction, but its reference to the language used in Alito’s opinion is notable, as it seems to confirm fears on the left about the erosion of other rights and liberties under the court’s new conservative super majority. Writing for the majority, Alito asserted that any right guaranteed under the Fourteenth Amendment’s due process clause must be “deeply rooted in this Nation’s history and tradition.”
That argument would seemingly call into question any number of rights, from same-sex marriage to the use of contraceptives. And indeed, in his concurring opinion, Justice Clarence Thomas explicitly called for a reconsideration of the court’s decisions in Obergefell v. Hodges (same-sex marriage), Lawrence v. Texas (effectively guaranteeing the right to consensual same-sex intimacy), and Griswold v. Connecticut (which guaranteed the right to contraceptives).