The phrase Be careful what you wish for immediately comes to mind. So does the necessity of discovery in any lawsuit, which may well have been the point of Robert Kennedy Jr's latest regulatory proposal.
Yesterday, nineteen states sued to stop the new regulation from Health and Human Services barring Medicaid and Medicare payments to go to providers of pediatric sex-change therapies. The move comes exactly one week after Secretary Kennedy's announcement that called such treatments "junk science," and attempts to halt the regulatory process even before the comment period has passed. Oregon has taken the lead in this legal action, both in court and in PR, Axios notes:
Nineteen states and D.C. sued Health Secretary Robert F. Kennedy Jr. and his health department to block the Trump administration's plan to curb young people's gender-affirming care.
Why it matters: Kennedy announced last week he would stop Medicare and Medicaid payments to any provider offering gender-affirming care to minors, a move the Oregon-led lawsuit says "exceeds the Secretary's authority and violates the Administrative Procedure Act and the Medicare and Medicaid statutes."
State of play: Oregon Attorney General Dan Rayfield (D) said in a statement on Wednesday: "The declaration falsely claims that certain forms of gender-affirming care are 'unsafe and ineffective.'"
First off, Oregon and the other 18 states jumped the gun on this action, legally speaking. This rule has not yet gone into effect, which means no one should have standing to sue at all – yet, anyway. The New York Times carefully noted that HHS has only proposed the rule, and that a final decision has not yet taken effect, emphases mine:
If finalized, the proposed new rules, announced by Health Secretary Robert F. Kennedy Jr. at a news conference Thursday morning, would effectively shut down hospitals that failed to comply. ...
A 60-day public comment period will follow, and the rules will most likely be subject to legal challenges before going into effect. ...
The announcement on Thursday also included other actions: Another C.M.S. rule would prevent Medicaid from paying for the treatments for minors. And the Food and Drug Administration announced that it was issuing warning letters to 12 manufacturers of breast binders, tight garments used to flatten and masculinize chest appearance under clothing, for “illegal marketing” of the products to children as a treatment for gender dysphoria.
Kelley Robinson, president of the Human Rights Campaign, said, “These rules are proposals, not binding law.”
Pun unintended by Robinson, presumably, but otherwise correct. Normally, courts don't intervene in the regulatory process until after the rule has been finalized. Until then, there are no immediate harms to plaintiffs, at least technically speaking. Could the nineteen states convince a federal judge to intervene anyway? Given the sorry state of district courts and activist judges, probably.
However, it will still be difficult to base that claim on a claimed violation of the Administrative Procedure Act (APA) while HHS is actually complying with it in a normal regulatory fashion. What would a stay look like at this stage? Stopping HHS from receiving comments? There is no action to stay at the moment except the very APA process that Oregon et al claim to be defending. Again, given how district court judges have behaved this year, I wouldn't bet against the plaintiffs getting some sort of temporary intervention. Still, I'd then bet on a reversal on appeal, perhaps at the Ninth Circuit, but almost certainly by the Supreme Court.
At some point, though, the plaintiffs will have to prove that the conclusion by HHS that pediatric sex-change therapies – surgical and hormonal – are "unsafe and ineffective" is false. The burden will be on the plaintiffs to substantiate that claim by at least a preponderance of evidence, once the court proceeds on the substance of the core claim. Now that the Supreme Court has dispensed with the Chevron doctrine, the courts can't just rely on HHS experts to gainsay that claim, so RFK's team will have to work a little harder, but the burden of proof will still be on the plaintiffs to prove that the conclusion is false. That means proving that pediatric sex-change therapies are actually safe and effective, at least at some point in this legal process.
And herein lies the briar-patch trap. There is no evidence that pediatric sex-change therapies are either "safe" in the traditional do-no-harm sense, or "effective" in the sense of restored well-being. For nearly two years, all of the evidence has pointed in the opposite direction: that pediatric sex-change therapies in response to gender dysphoria do not improve outcomes for patients, and objectively speaking, does permanent damage to their bodies and mental health. The Cass Report in the UK is particularly damning, focusing not just on the destructive outcomes of these practices but the clear fact that they were never based on proper medical research in the first place.
Children have been let down by a lack of research and "remarkably weak" evidence on medical interventions in gender care, a landmark review says.
The Cass Review, published on Wednesday by paediatrician Dr Hilary Cass, calls for gender services for young people to match the standards of other NHS care...
"There are few other areas of healthcare where professionals are so afraid to openly discuss their views, where people are vilified on social media, and where name-calling echoes the worst bullying behaviour." ...
Dr Cass said it was “extremely disappointing” to find World Professional Association of Transgender Healthcare (WPATH) guidelines which were taken as an industry standard and adopted very widely internationally, “were very, very poorly evidence-based”.
American hospitals have slowly figured out the danger long before HHS began to act. John wrote in July that a significant number of providers have quietly shut down their pediatric sex-change services, likely in anticipation of the danger of a tsunami of malpractice actions to come. Even in California, a party to this lawsuit, a Democrat state senator wanted AG Rob Bonta to sue providers to force them to keep providing these services after Kaiser Permanente announced that the massive HMO would no longer do so.
RFK likely hoped to get sued to force this issue into the legal arena. The plaintiffs will have only ideology and propaganda, while HHS will have science and the law. And I'll take that bet every time.
Addendum: Here is the list of the states joining Oregon in this lawsuit, from Axios:
Joining Rayfield in the lawsuit are Pennsylvania Gov. Josh Shapiro (D), and the Democratic attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Rhode Island, Vermont, Wisconsin, Washington and D.C.
The only surprise here is Shapiro.
