The World of Medical Decisions for Kids is Getting Crazy
Yesterday, the United States Supreme Court issued a ruling in U.S. v. Skrmetti, a case challenging the right of the State of Tennessee to regulate gender care for minor children. The case holds that the state’s regulations banning such care for minors do not violate the 14th Amendments prohibition against discrimination based upon sex. In a word, Tennessee does have the right to forbid parents and physicians from providing care ranging from hormone blockers to surgery. 605 U.S. —
I wasn’t going to write about the case partially because I think courts should stay away from these issues. Meanwhile, I also saw merit in the dissenting views on this. My reaction was that legislators should rely upon the best science available when trying to regulate these matters and leave their Bibles, Korans and Vedas’ in the nightstand.
But, later in the day came a lesser thunderbolt, a decision about vaccination from the Pennsylvania Superior Court in Marra v. Jacobs, 1199 EDA 2024. Marra illustrates how absurd the role of custody judge has become in the field of medical treatment. So, let’s start there.
As noted, Marra is a vaccination fight over an eight year old where Mom is “pro” and Dad is “agin.” In February 2022 Mother filed for primary legal and physical custody which would have modified a 50/50 prior order. The trial was 30 months later which speaks to how “fast track” seems to work in Pennsylvania. But, we digress. After the June 2024 trial Mother offers a copy of the then current CDC Guidelines related to vaccinations. The Father’s complaint was that these guidelines were submitted after the record closed and he had no ability to rebut them. The appellate court cites Pa. Rule of Evidence 201(b)(1-2) on judicial notice but then notes that when a court admits something by judicial notice, the other side must be afforded a chance to rebut it. Pa. R.E. 201(e); 220 Partnership v. Philadelphia Electric, 650 A.2d 1094 (Pa.Super, 1994).
Father’s complaint about judicial notice after the hearing ended coupled with the rules cited by the Superior Court seem to signal a reversal was in order. But, instead, the Court provides a summary of Father’s actual anti-vaccination testimony, all of which he seems to have recited from his readings on the internet. Needless to say, that rendition is fraught with evidentiary problems of its own but those problems don’t erode the due process violation of evidence (no matter how competent) outside the record. What we get is the 2024 version of the CDC guidelines (we are not told what vaccines) and the importance to public health of these kind of vaccinations. Then the appellate court notes that the trial court restricted Mother’s vax powers to state and school mandated jabs. Certainly, that’s reasonable once we set aside the due process and evidence issues. In any event, the order was affirmed.
The case is rife with constitutional problems but the basic premise that courts need to follow the best science available is a reasonable one. The trial court ruling professes to be based upon the CDC website at or about the time of the order in September, 2024.
Readers may recall that in September 2024, Joseph Biden was President and Dr. Rachel Levine was head of the the Department of Health & Human Services. In January 2025 Donald Trump became President and he appointed Robert Kennedy, Jr. as Dr. Levine’s replacement. As most of us know, since February 14, 2025 the “views” of the HHS Department and its CDC subsidiary on the topic of vaccination have shifted massively. Nine days ago the Vaccine Advisory Panel was dismissed as conflict ridden and a new panel is underway. I have not done a direct comparision of the vaccination website today with that 9 months ago but, suffice to say, the government’s scientific views are in a state of disarray. The clear statements from the incumbent Health Secretary suggest there was nothing reliable about the work of the Center for Disease Control on this topic.
Setting aside the due process problem, is a change in website “guidance” a change in circumstance, especially when the current administration is emphatic that the past published recommendations of the CDC are unreliable? Does Mr. Jacobs get a mulligan? And if he should, is the court in Luzerne County supposed to invite the 17 members of the dismissed Advisory Committee on Immunization Practices (ACIP) to duke it out with their newly appointed replacements? Where does this testimony take place and should the 34 vaccine specialists wait outside while the judge recides what shots are in R.J.’s best interests? That’s a lot of medical knowledge opining over what goes in a kid’s arm.
Now let’s take a moment for today’s U.S. Supreme Court case. The Tennessee legislature has considered the science of transgender care and decided care of minors affected by this is inimical to Tennesee’s interests. From my quick read, Virginia has not adopted the same view and care is permitted. So let’s assume a father lives in Lynn Garden, Tennessee and a mother lives in Weber City, Virginia. Distance 4 miles. They have a 14 year old daughter over whom they share legal and physical custody. The child has gender dysphoria. If the parents agree to treatment of this child is the father subject to civil penalties under Tennesse law? If the custody case is proceeding in Tennessee no judge is going to want to sign any document assenting to treatment. And, if jurisdiction is not decided, how does it get decided?
Last, let’s assume that the child is raped by her Father while she is staying with him in Tennessee. She has no right to an abortion even though her Father may spend a lifetime in jail for his crime. The embryo is a child under Tennessee law. Tenn Code. 39-13-107. In Virginia an abortion would be legal. But, the child might be prosecuted in Tennessee for pedicide. The criminal statute is written to target those who bring about the abortion and the text seems to avoid criminal liability for self-induced abortion. But, is there not an equal protection question where a person can self-abort while a professional’s identical result is criminal? Are we really saying that a pregnant woman can’t grasp the fact the her state has declared any abortion to be a crime?
The Supreme Court decided in Dobbs that states should decide these issues. In a concurring opinion today Justice Thomas took a swipe at the “so called expert class.”
In one sense, he is right to note that experts have no authority to overrule the express words of the legislature. But he does no service to the judiciary when he attacks the people judges need to rely upon to administer the law without fear or favor. And, in a day when succeeding administrations seem to focus energies on undoing the legislative acts and scientific findings of the past, is there much left to take judicial notice of that is not found in the dockets or the local law reporter?
There is a certain irony in the fact that for the first hundred years of U.S. history we did not regulate medical practice. For the next 100 years we licensed physicians to assure their competence but gave them fairly broad powers to treat patients while doing no harm. In recent years the legislative world seems increasingly motivated to regulate care despite the absence of clear training. And, now we have views differing about health care that vary by state. The judiciary is trapped in the middle; trying to promote the welfare of the child while adhering to science and law that are increasingly imbued with conflict.