Amicus Curiae Brief — United States, Petitioner v. Jonathan Skrmetti, Attorney General and Reporter for Tennessee, et al.

Supreme Court briefOct 15, 2024

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No. 23-477

IN THE

Supreme Court of the United States

_________

UNITED STATES OF AMERICA,

Petitioner,

JONATHAN THOMAS SKRMETTI, ATTORNEY GENERAL AND

REPORTER FOR TENNESSEE, ET AL.,

Respondents.

_________

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

_________

BRIEF OF PROFESSOR KURT T. LASH AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

_________

R. TRENT MCCOTTER

Counsel of Record

ANDREW W. SMITH

BOYDEN GRAY PLLC

800 Connecticut Ave. NW,

Suite 900

Washington, DC 20006

(202) 706-5488

tmccotter@boydengray.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT .............................................................. 7

II.

The Original Constitution Preserved the

Pre-Existing Authority of Every State to

Regulate the Practice of Medicine....................... 7

Under the Original Constitution, the

People in the States Retained the Power

to Pass “Health Laws of Every

Description.” .................................................. 7

Between the Founding and the

Fourteenth Amendment, the People in

the States Freely Exercised Their

Retained Constitutional Authority to

Regulate the Practice of Medicine. ................ 8

The Fourteenth Amendment Does Not

Restrict the States’ Authority to Regulate

the Practice of Medicine on the Basis of

Biological Function. .......................................... 14

The Fourteenth Amendment’s Drafters

Remained Committed to the Basic

Federalist Structure of the Constitution...... 14

The Fourteenth Amendment’s Drafters

Were Not Concerned with States

Regulating the Practice of Medicine

Based on Reproductive Biology.................... 17

The Due Process and Equal Protection

Clauses Secured Rights Unrelated to

State Regulation of the Medical

Profession. ................................................... 20

D. The Citizenship Clauses Do Not

Invalidate State Regulation of the

Practice of Medicine on the Basis of

Biological Difference. ................................... 26

CONCLUSION ......................................................... 36

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. Toler,

24 U.S. 11 (1826) .................................................. 25

Bradwell v. Illinois,

83 U.S. 130 (1872) ................................. 7, 14, 31, 32

Civil Rts. Cases, 109 U.S. 3 (1883)............................. 29

Dent v. West Virginia,

129 U.S. 114 (1889) ........................................ 13, 14

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ....................... 5, 6, 8, 10, 33, 34

Geduldig v. Aiello,

417 U.S. 484 (1974) .............................................. 33

Gibbons v. Ogden,

22 U.S. 1, 203 (1824) .......................................... 5, 8

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 20

Thorpe v. Rutland & B.R. Co.,

27 Vt. 140 (1854) .................................................... 5

United States v. Carolene Prods.,

304 U.S. 144 (1938) .............................................. 25

United States v. Virginia,

518 U.S. 515 (1996) ................................................ 7

Washington v. Glucksberg,

521 U.S. 702 (1997) .......................................... 5, 10

Statutes

Civil Rights Act, 14 Stat. 27 (1866) ........................... 30

Tenn. Code § 68-33-102(1) ........................................... 4

Tenn. Code § 68-33-102(5)(A) & (B) ............................. 2

Tenn. Code § 68-33-102(9) ........................................... 2

Tenn. Code § 68-33-103(a)(1)(A) & (B) ......................... 2

Tenn. Code § 68-33-103(b)(1)(A) .................................. 4

The General Statutes of the State of

Kansas ch. 31, § 15 (1868) .................................... 12

U.S. Const. amend. X................................................... 8

U.S. Const. amend. XIV.................................. 18, 27, 31

Other Authorities

1860 Republican Party Platform,

in 1 Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 16

Akhil Amar, America’s Constitution: A Biography

(2005).................................................................... 27

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts ........................ 20

Boston Daily Bee (Boston, Mass.),

Dec. 17, 1845 ........................................................ 10

Christina Apperson, Protecting the Public,

Strengthening the Profession: A One Hundred

Fifty Year History of the North Carolina

Medical Board, 1859–2009 (North Manchester,

Indiana: HF Group, 2009) ...................................... 9

Christopher R. Green, The Original Sense of the

(Equal) Protection Clause: Pre-Enactment

History, 19 Geo. Mason Univ. Civ. Rts L.J. 1

(2008).............................................................. 20, 24

Clement B. Penrose, A Manual of Medical

Jurisprudence (1866) ............................................ 11

Cong. Globe, 39th Cong., 1st Sess. 1836 (1866), in

2 Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 28

David A. Johnson & Humayun J. Chaudhry,

Medical Licensing and Discipline in America

(2012).............................................................5, 9, 10

David Johnson & Humayun Chaudhry, The

History of the Federation of State Medical

Boards: Part One—19th Century Origins, 98 J.

of Med. Regul. 20 (Mar. 2012) ................................ 9

Important Law: Kemp’s Medical Bill,

Cin. Daily Gazette (Cincinnati, Ohio), May 4,

1868 ...................................................................... 12

Introduction to the Drafting History of the

Thirteenth Amendment, in

1 Reconstruction Amendments: Essential

Documents

(Kurt T. Lash, ed.) (2021) ..................................... 15

J. Laurie, M.D., Homoeopathic Domestic

Medicine: Arranged As a Practical Work for

Students (1850) .................................................... 11

J.A. Silverman, Louis-Victor Marcé, 1828-1864:

Anorexia Nervosa’s Forgotten Man. 19 Psychol.

Med. 833 (1989) .................................................... 11

Jacobus tenBroek, Equal Under Law (1965 ed.) ........ 22

Jessica A. Clarke, Sex Assigned at Birth, 122

Colum. L. Rev. 1821 (2022) .................................... 3

John C. Avise, Hermaphroditism: A Primer on the

Biology, Ecology, and the Evolution of Dual

Sexuality (Columbia Univ. Press, 2011) ................. 3

Joseph Story, Commentaries on the Constitution

(1833).................................................................... 28

Kurt T. Lash, Becoming the “Bill of Rights”: The

First Ten Amendments from Founding to

Reconstruction, 110 Va. L. Rev. 411 (2024) .......... 18

Kurt T. Lash, Enforcing the Rights of Due

Process: The Original Relationship Between

the Fourteenth Amendment and the 1866 Civil

Rights Act, 106 Geo. L.J. 1389 (2018) ................... 19

Kurt T. Lash, The Federalist and the Fourteenth

Amendment—Publius in Antebellum Public

Debate, 1788–1860, 48 B.Y.U. L. Rev. 1831

(2023).................................................................... 16

Kurt T. Lash, The State Citizenship Clause, 25

Penn. J. Cont. Law 1097 (2023) ................. 15, 28, 29

Maayan Sudai, A Woman and Now a Man: The

Legitimation of Sex Assignment Surgery in the

United States (1849–1886), 52 Soc. Stud. of

Sci. 82 (Feb. 2022) (online publication Feb.

2021) ................................................................. 4, 11

Michael McConnell, Ways to Think About

Unenumerated Rights, 2013 U. Ill. L. Rev.

1985 ...................................................................... 20

vii

Robyn Ryle, Questioning Gender: A Sociological

Exploration (2012) .................................................. 4

Speech of Charles Sumner, April 8, 1864, in 1

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 21

Speech of Charles Sumner, Cong. Globe, 38th

Cong., 1st Sess. 1480 (Apr. 8, 1864)...................... 23

Speech of Jacob Howard Introducing a Proposed

Fourteenth Amendment, May 23, 1866, in 2

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) ............ 25, 27

Speech of John A. Bingham Introducing a Draft

Fourteenth Amendment, Feb. 27, 1866, in 2

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) ............ 18, 21

Speech of John Bingham Explaining the Meaning

of the Privileges or Immunities Clause, Mar.

31, 1871, in 2 Reconstruction Amendments:

Essential Documents (Kurt T. Lash, ed.)

(2021).................................................................... 27

Speech of John Bingham Introducing Draft

Fourteenth Amendment,

Feb. 28, 1866, in 2 Reconstruction

Amendments: Essential Documents (Kurt T.

Lash, ed.) (2021) ............................................. 16, 17

Speech of John Bingham Regarding the Meaning

of the Privileges or Immunities Clause, Mar.

31, 1871, in 2 Reconstruction Amendments:

Essential Documents (Kurt T. Lash, ed.)

(2021).............................................................. 17, 27

viii

Speech of John Bingham, Cong. Globe, 37th

Cong., 2d Sess. 1638 (1862) .................................. 22

Speech of Lyman Trumbull, Jan. 29, 1866, in 2

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 28

Speech of Senator Jacob Howard Introducing a

Proposed Fourteenth Amendment, in 2

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 15

The Federalist No. 45 (James Madison), in The

Federalist Papers (Rossiter ed., 1961) .................... 8

The Petition of Victoria Woodhull on the Subject

of Female Suffrage, Jan. 2, 1871, in 2

Reconstruction Amendments: Essential

Documents (Kurt T. Lash, ed.) (2021) .................. 31

The Woodhull Report (1871), in 2 Reconstruction

Amendments: Essential Documents (Kurt T.

Lash, ed.) (2021) ................................................... 31

William G. Rothstein, American Physicians in the

19th Century: From Sects to Science (1985) ....... 5, 9

INTEREST OF THE AMICUS CURIAE1

Kurt T. Lash is a professor at the University of

Richmond School of Law. He teaches and writes about

the history and original understanding of the

Constitution. He has published multiple books on the

history of the Fourteenth Amendment, including The

Fourteenth Amendment and the Privileges and

Immunities of American Citizenship (Cambridge

Univ. Press, 2014) and, most recently, The

Reconstruction Amendments: Essential Documents (2

volumes) (Univ. of Chicago Press, 2021). He has an

interest in advancing an historically accurate judicial

interpretation of the Fourteenth Amendment,

including the equal rights of American citizenship and

recently wrote an article on this subject: The State

Citizenship

Clause

(2023),

available

https://scholarship.law.upenn.edu/cgi/viewcontent.

cgi?article=1863&context=jcl.

No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from amicus curiae and his

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

This brief investigates the original understanding

of the Fourteenth Amendment. It concludes that

nothing in the text or original meaning of the

Fourteenth Amendment altered the reserved

authority of the people in the several states to

reasonably regulate the local practice of medicine in a

manner that distinguishes between the two

complementary

(male

and

female)

human

reproductive systems. Accordingly, this Court should

affirm the decision of the Sixth Circuit.

Tennessee Senate Bill 1 (“SB1”) prohibits all

“medical procedure[s]” whose purpose is “[e]nabling a

minor to identify with, or live as, a purported identity

inconsistent with the minor’s sex” or “[t]reating

purported discomfort or distress from a discordance

between the minor’s sex and asserted identity.”2 The

statute defines “sex” as “a person’s immutable

characteristics of the reproductive system that define

the individual as male or female, as determined by

anatomy and genetics existing at the time of birth.”3

The statute defines “medical procedure” as

“[s]urgically removing, modifying, altering, or

entering into tissues, cavities, or organs of a human

being” or “[p]rescribing, administering, or dispensing

any puberty blocker or hormone to a human being.”4

Tenn. Code § 68-33-103(a)(1)(A) & (B).

Id. § 68-33-102(9).

Id. § 68-33-102(5)(A) & (B).

In every instance, the statute uses the term “sex”

in reference to human reproductive systems.5 The

classification thus depends on biological facts

established prior to birth (“anatomy and genetics

existing at the time of birth”), as opposed to post-birth

“social construction” (something that can be

“assigned” at birth).6

There are only two human reproductive systems; one organized

around the production of large gametes (ova) and one around the

production of smaller gametes (sperm). There is no verified case

of a true hermaphrodite (two fully functional reproductive

systems)

in human history.

See John C. Avise,

Hermaphroditism: A Primer on the Biology, Ecology, and the

Evolution of Dual Sexuality (Columbia Univ. Press, 2011).

Petitioners claim that SB1 classifies according to a person’s “sex

assigned at birth.” This is incorrect. No such term appears in

SB1. Instead, the statute expressly classifies on the basis of

human “reproductive systems” “existing at the time of birth.” See

id. The idea that sex can be “assigned at birth” is a recent

formulation or characterization with no analogue at the time of

the Fourteenth Amendment. See Jessica A. Clarke, Sex Assigned

at Birth, 122 Colum. L. Rev. 1821, 1835 n.66 (2022) (noting that

“‘assigning’ terms do not seem to be used with frequency prior to

the mid-twentieth century”) (interior quotation marks added).

According to Clarke, the concept of “sex assigned at birth”

emerged in the 1990s when “scholars and activists began using

‘assigned’ terminology, rather than anatomy or biology, to define

various identities under the transgender umbrella.” Id. at 1842–

43. Petitioners similarly refer to what they term SB1’s exclusion

of “intersex” conditions. Petitioner’s Brief at 6, 23. This too is a

modern concept linked to the idea that sex is not biological but is

This classification system is fully consistent with

the post-Fourteenth Amendment authority of the

states. This brief first describes the legal pedigree of

reserved state authority to regulate medical

procedures, including those involving human

reproductive systems and designed to treat

dysmorphias and dysphorias. It then explains that

nothing in the Fourteenth Amendment altered this

authority in any way pertinent to the federal

constitutional challenge presented in this case.

State regulation of medical procedures has a

historical pedigree extending back prior to the

socially constructed. See, e.g., Robyn Ryle, Questioning Gender:

A Sociological Exploration 8 (2012) (“What intersexuality

teaches us is that sex itself is socially constructed.”). Once again,

the term “intersex” does not appear in the statute. Instead, SB1

recognizes that some persons have rare conditions that affect

secondary sex characteristics. See Tenn. Code § 68-33103(b)(1)(A) (referring to “a minor’s congenital defect, precocious

puberty, disease, or physical injury”); see also id. § 68-33-102(1)

(defining “congenital defect” as “a physical or chemical

abnormality present in a minor that is inconsistent with the

normal development of a human being of the minor’s sex

including abnormalities caused by a medically verifiable disorder

of sex development.”); Maayan Sudai, A Woman and Now a Man:

The Legitimation of Sex Assignment Surgery in the United States

(1849–1886), 52 Soc. Stud. of Sci. 82 (Feb. 2022) (online

publication Feb. 2021), https://tinyurl.com/3rmk2jek (“The

phrase ‘sex assignment surgery’ (commonly used to describe

normalization surgeries for intersex people in the present) did

not exist [in the mid-nineteenth century].”).

adoption of the federal Constitution.7 The

Constitution preserved this pre-existing authority as

part of the powers reserved to the States under the

Tenth Amendment. As Chief Justice John Marshall

noted in Gibbons v. Ogden, the Constitution reserved

each state’s authority to pass “health laws of every

description.”8

Between the Founding and the Civil War, every

state in the Union not only regulated the local practice

of medicine but also passed myriad laws restricting or

prohibiting procedures viewed as contrary to the

public good. Such laws included prohibitions on

procedures or the administration of drugs for an

abortion9 and laws prohibiting the administration of

drugs for ending life (assisted suicide).10 The practice

See William G. Rothstein, American Physicians in the 19th

Century: From Sects to Science 74–75 (1985) (describing the rise

of state incorporated medical societies during the 1780s and

1790s with state granted power to issue medical licenses); see

also David A. Johnson & Humayun J. Chaudhry, Medical

Licensing and Discipline in America 8–9 (2012).

22 U.S. 1, 203 (1824); see also Thorpe v. Rutland & B.R. Co., 27

Vt. 140, 149 (1854) (“This police power of the state extends to the

protection of the lives, limbs, health, comfort, and quiet of all

persons, and the protection of all property within the state.”).

See, for example, the state laws listed in Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 417 (2022) (Appendix A).

See Washington v. Glucksberg, 521 U.S. 702, 715 (1997)

(“Between 1857 and 1865, a New York commission led by Dudley

Field drafted a criminal code that prohibited ‘aiding’ a suicide

of medicine during this period included treatments for

dysphoric conditions such as anorexia nervosa, and

surgical procedures involving congenital defects

affecting secondary sex characteristics.11 There is no

evidence that anyone viewed state oversight of these

matters as triggering constitutional concerns prior to

the adoption of the Fourteenth Amendment.12

The

Fourteenth

Amendment

significantly

expanded the scope of American liberty but did not

change the original federalist structure of the

Constitution in matters relating to the local control of

medicine. Nothing in the amendment’s text implicates

reasonable state regulation of medicine, and no one

during the framing or ratification debates mentioned

the need to constrain state regulation of medicine or

to establish a constitutional right to certain medical

or putatively medical treatments.

and, specifically, ‘furnish[ing] another person with any deadly

weapon or poisonous drug, knowing that such person intends to

use such weapon or drug in taking his own life.’” By the time the

Fourteenth Amendment was ratified, it was a crime in most

States to assist a suicide.” (citation omitted)).

See infra n.26.

See, e.g., Dobbs, 597 U.S. at 248 (noting that, “by 1868, the year

when the Fourteenth Amendment was ratified, three-quarters of

the States, 28 out of 37, had enacted statutes making abortion a

crime even if it was performed before quickening.”); see id. at 236

(“The regulation of a medical procedure that only one sex can

undergo does not trigger heightened constitutional scrutiny

unless the regulation is a ‘mere pretex[t] designed to effect an

invidious discrimination against members of one sex or the

other.’”).

Even if one presumes that the original meaning of

the Equal Protection Clause requires heightened

scrutiny of laws classifying on the basis of sex (a

question the court need not resolve in this case), state

regulations that distinguish between male and female

reproductive systems are not sex-based classifications

requiring heightened scrutiny.13 Nor is there any

historical evidence that any person in 1868 thought

otherwise.

ARGUMENT

The Original Constitution Preserved the

Pre-Existing Authority of Every State to

Regulate the Practice of Medicine.

The original Constitution (i.e., the Constitution as

it existed prior to the Reconstruction Amendments)

preserved the states’ authority to regulate the

practice of medicine.

Under the Original Constitution, the

People in the States Retained the

Power to Pass “Health Laws of

Every Description.”

Under

the

original

Constitution,

state

governments retained all powers not delegated to the

United States nor prohibited to the states. As James

Cases like Bradwell v. Illinois, 83 U.S. 130 (1872), and United

States v. Virginia, 518 U.S. 515 (1996), involved sex-based licensing and public education admission standards. Whether the original understanding of the Fourteenth Amendment plays a role in

these kinds of cases is a question this court need not address in

this case.

Madison explained in Federalist No. 45, “[t]he powers

delegated by the proposed Constitution to the Federal

Government, are few and defined. Those which are to

remain in the State Governments are numerous and

indefinite.”14 These reserved powers “extend to all the

objects, which, in the ordinary course of affairs,

concern the lives, liberties and properties of the

people.” The Tenth Amendment textually enshrined

this original understanding by declaring that all

powers not constitutionally delegated away (or

prohibited to the states) are “reserved to the states

respectively or to the people.”16 As Chief Justice John

Marshall later explained, these constitutionally

reserved powers include state “health laws of every

description.”17

Between the Founding and the

Fourteenth Amendment, the People

in the States Freely Exercised Their

Retained Constitutional Authority

Regulate

the

Practice

Medicine.

State establishment of medical societies with

state-granted power to issue medical licenses

The Federalist No. 45 (James Madison), in The Federalist

Papers 292 (Rossiter ed., 1961).

Id. at 293.

U.S. Const. amend. X.

Gibbons, 22 U.S. at 203 (emphasis added).

preexisted the adoption of the Federal Constitution.18

Throughout the early decades of the Constitution,

states relied both on such societies to control entry

into the medical profession, and also enacted medical

licensing laws in order to prohibit “quackery” and

medical procedures viewed as contrary to the public

good.19 In 1806, New York passed an “elaborate

medical law” and established the Medical Society of

the State of New York.20 Although a number of states

adopted more permissive regulatory regimes during

the Jacksonian period,21 by the time of the Civil War

this anti-regulatory spirit had waned. For example, in

1859 North Carolina created the state’s first Medical

Board.22 By the end of the nineteenth century, almost

Rothstein, supra, at 74–75.

See Johnson & Chaudhry, Medical Licensing, supra, at 10–11.

North Carolina, for example, praised the state’s new charter for

a state medical society which they hoped would help “the

community to distinguish the true Physician from the ignorant

pretender; [and] suppress the fatal and criminal practices of

Quacks.” Id. at 11.

Id.

Id. at 18.

Id. at 23; see also Christina Apperson, Protecting the Public,

Strengthening the Profession: A One Hundred Fifty Year History

of the North Carolina Medical Board, 1859–2009 (North

Manchester, Indiana: HF Group, 2009); David Johnson &

Humayun Chaudhry, The History of the Federation of State

Medical Boards: Part One—19th Century Origins, 98 J. of Med.

Regul. 20, 22 (Mar. 2012) (“North Carolina was one of the first

states to emerge out of the professional and regulatory dark ages

of the Jacksonian Era with the establishment of its medical

board in 1859.”).

every state had done the same. 23 No antebellum state

or federal case called into question a state’s power to

license and regulate the local medical profession.

Every antebellum state in the Union regulated or

prohibited medical procedures deemed harmful to the

public. For example, state laws prohibited doctors

from supplying medicine for the purpose of facilitating

suicide,24 or causing fetal death.25 By the time of the

Fourteenth Amendment, state regulated medical

practices included treatments for body image

disturbances or dysphorias, including anorexia

nervosa.26

Johnson & Chaudhry, Medical Licensing, supra, at 24.

As this Court explained in Glucksberg: “The earliest American

statute explicitly to outlaw assisting suicide was enacted in New

York in 1828[], and many of the new States and Territories

followed New York’s example. Between 1857 and 1865, a New

York commission led by Dudley Field drafted a criminal code

that prohibited ‘aiding’ a suicide and, specifically, ‘furnish[ing]

another person with any deadly weapon or poisonous drug,

knowing that such person intends to use such weapon or drug in

taking his own life.’” Glucksberg, 521 U.S. at 715 (cleaned up).

See, e.g., Boston Daily Bee (Boston, Mass.), Dec. 17, 1845, p. 2

(reporting local prosecution of a physician for supplying medicine

for the purpose of procuring an abortion); see also Dobbs, 597 U.S.

215 (Appendix A, listing state laws in existence in 1868 that

prohibited the administration of medicines for the procurement

of abortion).

For example, mid-nineteenth century doctors recognized and

treated what they referred to as “apepsia” but by 1874 had

By 1850, the American practice of medicine

included genital surgery,27 including genital

reconstruction surgery.28 There are only a few midnineteenth century examples of surgical efforts to

“resolve” the sex of persons with otherwise ambiguous

secondary sex structures.29 Those that were reported,

however, were deeply controversial, with some critics

claiming they could create civil liability.30 There is no

evidence that anyone in 1868, or at any time during

the nineteenth century, considered the availability of

such surgery to be a matter of constitutional right. All

such practices remained under the regulatory control

of the individual states.

One month prior to the ratification of the

Fourteenth Amendment, the state of Ohio passed a

become known as “anorexia nervosa.” See J.A. Silverman, LouisVictor Marcé, 1828–1864: Anorexia Nervosa’s Forgotten Man. 19

Psychol. Med. 833–835 (1989), https://pubmed.ncbi.nlm.nih.gov/

2687917/; see also J. Laurie, M.D., Homoeopathic Domestic

Medicine: Arranged As a Practical Work for Students 101 (1850)

(discussing conditions called “apepsia” or “anorexia” that involve

“want of appetite”).

See Sudai, supra, at 82.

Id.

Id. at 80.

Id. at 89, 93. In 1866, the American editor of the British Taylor

Manual of Jurisprudence criticized a surgeon for surgically

resolving sexual ambiguity by removing a patient’s testicles and

thus erasing the legal evidence that the person could enjoy what

were then the legal privileges of males. See Clement B. Penrose,

Manual

Medical

Jurisprudence

577

(1866),

https://tinyurl.com/5n9x8mye.

law prohibiting any person from “perform[ing] or

attempting to perform any surgical operation upon

any person within the limits of said state” unless they

had “attended two full courses of instruction and

graduated from some school of medicine” or been in

practice for at least ten years prior to the enactment

of the law.31 One year after it voted for the ratification

of the Fourteenth Amendment, and one month prior

to that amendment’s ratification, Kansas adopted a

criminal code containing a provision declaring that

“Every person who shall administer to any woman,

pregnant with a quick child, any medicine, drug or

substance whatsoever, or shall use or employ any

instrument or other means, with the intent thereby to

destroy such child, unless the same shall have been

necessary to save the life of such mother, or shall have

been advised by a physician to be necessary for that

purpose, shall be guilty of manslaughter in the second

degree.”32

Notice that, in addition to reflecting a binary view

of the reproductive system (only women can bear a

“quick child”), the Kansas statute mentions only

women and not men. The statute does not thereby

exclude men (making it a sex-based classification).

Instead, the statute reflects the biological facts that

women can, and men cannot, conceive offspring and

give birth. Men, i.e., males—persons whose

reproductive system is organized to produce the

See Important Law: Kemp’s Medical Bill, Cin. Daily Gazette

(Cincinnati, Ohio), May 4, 1868, at 3.

The General Statutes of the State of Kansas ch. 31, § 15, p.

320–21 (1868), https://tinyurl.com/2mu7euvz.

smaller gamete and not to conceive or give birth—are

not excluded from the statute, they are irrelevant to

the statute.

Not long after the adoption of the Fourteenth

Amendment, this Court repeated the long-standing

view that medicine remained within the basic police

powers of the state. In Dent v. State of West Virginia

(1889), for example, the Court upheld West Virginia’s

refusal to grant a medical license to a graduate of the

American Medical Eclectic College of Cincinnati.33

According to Justice Field, state regulation in this

area must be deemed as reserved to the states unless

determined by the court to be “arbitrary and

capricious.”34 Writing for a unanimous court, Justice

Stephen Field explained why the Constitution leaves

such matters to state control:

The power of the state to provide for the

general welfare of its people authorizes

it to prescribe all such regulations as in

its judgment will secure or tend to

secure them against the consequences

of ignorance and incapacity, as well as

of deception and fraud. ... Few

professions require more careful

preparation by one who seeks to enter

it than that of medicine. … [It] requires

not only a knowledge of the properties

of vegetable and mineral substances,

but of the human body in all its

Dent v. West Virginia, 129 U.S. 114 (1889).

Id. at 124.

complicated parts, and their relation to

each other, as well as their influence

upon the mind.35

II.

The Fourteenth Amendment Does Not

Restrict the States’ Authority to Regulate

the Practice of Medicine on the Basis of

Biological Function.

Ratification of the Fourteenth Amendment did not

deprive the States of this well-established authority.

Both the amendment’s ratification debates and its

text make this clear.

The

Fourteenth

Amendment’s

Drafters Remained Committed to

the Basic Federalist Structure of the

Constitution.

The Republicans who drafted and adopted the

Thirteenth Amendment believed they were advancing

the true pro-freedom ideal of the original

Id. at 122–23. The majority of the Court in Bradwell v. Illinois,

83 U.S. 130 (1872), dismissed a citizenship clause-based claim

against a state law excluding women from the practice of law. Id.

at 139 (“[T]he right to control and regulate the granting of license

to practice law in the courts of a state is one of those powers

which are not transferred for its protection to the federal

government, and its exercise is in no manner governed or

controlled by citizenship of the United States in the party

seeking such license.”). Whether such-sex-based exclusions

violate the original understanding of the Equal Protection

Clause or any other provision in the Fourteenth Amendment is

not an issue the Court need address in this case.

Constitution, not revolutionizing its basic structure.36

Congressional Republicans originally hoped that

abolition would result in both freedom and equality

for black citizens in the southern states. 37 Such hopes

wilted, however, in the face of the newly enacted Black

Codes and the refusal of southern states to equally

protect the lives and property of black residents as

well as visiting citizens from the northern states.

Republicans responded by drafting an amendment

that prohibited race or “caste” based distinctions

among citizens and which secured the natural right of

all persons to the due and equal protection of their life,

liberty, and property.

Although profoundly

expanding the scope of American liberty, neither the

framers nor ratifiers understood the texts of the

Fourteenth Amendment as inhibiting the authority of

See Introduction to the Drafting History of the Thirteenth

Amendment, in 1 Reconstruction Amendments: Essential

Documents 374–75 (Kurt T. Lash, ed.) (2021).

Kurt T. Lash, The State Citizenship Clause, 25 Penn. J. Cont.

Law 1097, 1106 (2023).

Id.

See, e.g., Speech of Senator Jacob Howard Introducing a

Proposed Fourteenth Amendment, in 2 Reconstruction

Amendments: Essential Documents 188 (Kurt T. Lash, ed.)

(2021) (“[The Due Process and Equal Protection Clauses]

abolish[] all class legislation in the states and do[] away with the

injustice of subjecting one caste of persons to a code not

applicable to another. It prohibits the hanging of a black man for

a crime for which the white man is not to be hanged.”).

the states to enact biologically-based regulations of on

the practice of medicine for the sake of the public good.

In fact, the Republican Party of Abraham Lincoln

remained deeply committed to Madison’s vision in

Federalist 45 and the federalist division of power

between the national and state governments. The

Republican Platform of 1860 expressly declared its

fidelity to federalism and the rights of the states,

and

Republicans

throughout

Reconstruction

repeatedly invoked Madison’s essays in the Federalist

Papers as representing the best understanding of

Rather

than

American

constitutionalism.

revolutionizing the original Constitution, Republicans

like John Bingham who were active in the framing of

the Fourteenth Amendment and the campaign for its

ratification sought only to force the states to respect

American liberties already declared in the original

See Kurt T. Lash, The Federalist and the Fourteenth

Amendment—Publius in Antebellum Public Debate, 1788–1860,

48 B.Y.U. L. Rev. 1831, 1862–63 (2023).

See 1860 Republican Party Platform, in 1 Reconstruction

Amendments: Essential Documents, supra, at 320 (“4. That the

maintenance inviolate of the rights of the states ... is essential to

that balance of powers on which the perfection and endurance of

our political fabric depends”).

See, e.g., Speech of John Bingham Introducing Draft

Fourteenth Amendment, Feb. 28, 1866, in 2 Reconstruction

Amendments: Essential Documents, supra, at 115 (quoting

Madison’s declaration in Federalist 45 that “[t]he powers

reserved to the [] States will extend to all the objects which, in

the ordinary course of affairs, concerns the lives, liberties and

properties of the people, and the internal order, improvement,

and prosperity of the State”).

Constitution.43 As Bingham explained regarding his

initial draft, “The proposition pending before the

House is simply a proposition to arm the Congress of

the United States, by consent of the people of the

United States, with the power to enforce the bill of

rights as it stands in the Constitution today. It hath

that extent, no more.”44 Neither Bingham nor any

other moderate Republican had any interest in

nationalizing the local practice of medicine.

The

Fourteenth

Amendment’s

Drafters Were Not Concerned with

States Regulating the Practice of

Medicine Based on Reproductive

Biology.

Three central concerns informed the drafting and

public understanding of Section One of the

Fourteenth Amendment. First, the text overruled this

Court’s holding in Dred Scott and established the

equal status of native-born black Americans as

citizens of the United States and citizens of their state

Id. at 113 (“The adoption of the proposed [Fourteenth]

amendment will take from the states no rights that belong to the

states.”).

Id. at 109. Although Congress modified aspects of Bingham’s

initial proposal, Bingham’s understanding of the meaning and

scope of his draft never changed. See Speech of John Bingham

Regarding the Meaning of the Privileges or Immunities Clause,

Mar. 31, 1871, in 2 Reconstruction Amendments: Essential

Documents, supra, at 620, 625.

of residence.45 This is addressed by the opening

clauses of Section One and they establish a principle

of equal treatment regardless of race. As explained

below, no one understood the idea of equal citizenship

to require equal medical treatment regardless of

reproductive difference.

Second, the federal Bill of Rights needed to be

enforceable against the states. 47 Originally a list of

subjects reserved to state control, between the time of

the Founding and the Civil War, most Americans had

come to view these enumerated rights as declaring the

privileges and immunities of American citizenship.48

The failure of the slave states to respect these rights

became a scandal in the north and securing their

enforcement against the states was a major goal of

See Lash, The State Citizenship Clause, supra, at 1108.

See U.S. Const. amend. XIV (“All persons born or naturalized

in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they

reside.”).

See Speech of John A. Bingham Introducing a Draft

Fourteenth Amendment, Feb. 27, 1866, in 2 Reconstruction

Amendments: Essential Documents, supra, at 113 (“Is the bill of

rights to stand in our Constitution hereafter, as in the past five

years within eleven states, a dead letter? It is absolutely

essential to the safety of the people that it be enforced.”).

See Kurt T. Lash, Becoming the “Bill of Rights”: The First Ten

Amendments from Founding to Reconstruction, 110 Va. L. Rev.

411 (2024) (describing the evolving public understanding of the

first ten amendments in the period between the Founding and

the Civil War).

Fourteenth

Bingham.49

Amendment

drafters

John

Third, in addition to the rights of citizenship,

Republicans were committed to protecting the natural

rights of all persons (regardless of citizenship).

Abolitionists had long insisted that slavery violated

the natural rights of life, liberty, and property as

originally declared in 1776 and constitutionalized in

the Due Process Clause of the Fifth Amendment.50

Republicans insisted that these natural rights

belonged to all persons, regardless of race. Slave

holding states denied these rights to enslaved persons

and they continued to deny both black residents and

visitors the same protections of life, liberty, and

property that were granted to white residents.

Republicans responded, first by passing the 1866 Civil

Rights Act, and then by enacting the Fourteenth

Amendment with its express Due Process and Equal

Protection Guarantees.51

This Court’s current Section One jurisprudence

does not perfectly track the original understanding of

the Fourteenth Amendment. For example, although

the court protects substantive rights under the Due

Process Clause, many scholars (including this one)

and at least one Justice believe that this

See historical sources cited above in footnotes 43, 44 and 47.

See Kurt T. Lash, Enforcing the Rights of Due Process: The

Original Relationship Between the Fourteenth Amendment and

the 1866 Civil Rights Act, 106 Geo. L.J. 1389, 1398 (2018).

See id. at 1414.

jurisprudence has better historical and textual

support in the Privileges or Immunities Clause.52

Scholars also increasingly look to the citizenship

clauses as the proper textual and historical source of

the Court’s equal rights jurisprudence.53 Nothing

about this case, however, requires the Court to revisit

these basic doctrines. Whichever clause is viewed as

the textual source of constitutional equality, there is

no evidence that anyone read any of the clauses in

Section One as calling into question state

classifications involving basic biological (including

reproductive) differences between medical patients.

The Due Process and Equal

Protection Clauses Secured Rights

Unrelated to State Regulation of the

Medical Profession.

The Due Process and Equal Protect Clauses are

meant to be read in pari materia.54 John Bingham

See McDonald v. City of Chicago, 561 U.S. 742, 806 (2010)

(Thomas, J., concurring); Michael McConnell, Ways to Think

About Unenumerated Rights, 2013 U. Ill. L. Rev. 1985, 1995.

See Christopher R. Green, The Original Sense of the (Equal)

Protection Clause: Pre-Enactment History, 19 Geo. Mason Univ.

Civ. Rts L.J. 1, 3 (2008) (compiling historical evidence that the

Equal Protection Clause secured protection against unjust

deprivation of life, liberty, or property).

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 39, at 252 (“Statutes in pari

materia [dealing with the same subject] are to be interpreted

together, as though they were one law.”).

initially proposed their addition as a single sentence.55

Although divided into two clauses in the final version

of the Fourteenth Amendment, they continue to work

in tandem.

The Due Process Clause guarantees that no person

will be deprived of life, liberty, or property without

having first received the procedural protections of due

process. According to Charles Sumner, “due process”

meant that “no member of the State shall be

disenfranchised or deprived of any of his rights or

privileges unless the matter shall be adjudged against

him upon trial had according to the course of common

law. The words ‘due process of law’ in this place cannot

mean less than a prosecution or suit instituted and

conducted according to the prescribed forms and

solemnities for ascertaining guilt or determining the

title to property.”

Unfortunately, the former slave holding states

either denied such protections to their black residents,

or they did not provide the same measure of protection

afforded to white residents. The Black Codes, for

example, often denied black residents an equal right

to own property and defend title to property in a court

See Speech of John A. Bingham Introducing a Draft

Fourteenth Amendment, Feb. 27, 1866, in 2 Reconstruction

Amendments: Essential Documents, supra, at 99 (proposing an

amendment providing “to all persons in the several States equal

protection in the rights of life, liberty and property”).

See Speech of Charles Sumner, April 8, 1864, in 1

Reconstruction Amendments: Essential Documents, supra, at

435.

of law.57 Thus, Republicans insisted on adding a

provision declaring that that every person be equally

protected against unjust deprivations of life, liberty,

or property.58

These clauses address a narrow category of laws

that “protect” the natural right to life, liberty, and

See Jacobus tenBroek, Equal Under Law 185–86 & n.14 (1965

ed.) (describing congressional discussion of the Black Codes and

their denial of equal protection).

John Bingham had long insisted that the concepts of due

process and equal protection were inextricably linked. In an

1862 speech advocating the abolition of slavery in the District of

Columbia, Bingham compared the Magna Charta’s due process

for “freedmen” with the American Constitution’s due process for

all “persons”:

Sir, our Constitution, the new Magna Charta,

which the gentleman aptly says is the greatest

provision for the rights of mankind and for the

amelioration of their condition, rejects in its

bill of rights the restrictive word “freeman,”

and adopts in its stead the more comprehensive

words “no person;” thus giving its protection to

all, whether born free or bond. The provision of

our Constitution is, “no person shall be

deprived of life, or liberty, or property without

due process of law.” This clear recognition of

the rights of all was a new gospel to mankind,

something unknown to the men of the

thirteenth century. ... [T]he patriots of America

proclaimed the security and protection of law

for all. The later and nobler revelation to our

fathers was that all men are equal before the

law.

Speech of John Bingham, Cong. Globe, 37th Cong., 2d Sess. 1638

(1862).

property—rights which Republicans associated with

the Declaration of Independence and the right of every

person to “life, liberty and the pursuit of happiness.”

Such rights had been denied to the enslaved, and they

continued to be denied to black residents and Union

supporters in the southern states. These clauses apply

to laws that protect. They do not apply to local laws

that provide—for example, state laws providing a

license to practice medicine if certain conditions are

met, or laws providing public benefits to resident

citizens (e.g., the provision of a free public education).

Instead, the Equal Protection Clause guarantees

that all persons receive the benefit of equal protection

As Sen. Charles Sumner (R-MA) explained:

[N]o American need be at a loss to designate

some of the distinctive elements of a republic

according to the idea of American institutions.

These will be found, first, in the Declaration of

Independence, by which it is solemnly

announced “that all men are endowed by their

Creator with certain unalienable rights; that

among these are life, liberty, and the pursuit of

happiness.” And they will be found, secondly,

in that other guarantee and prohibition of the

Constitution, in harmony with the Declaration

of independence; “no person shall be deprived

of life, liberty, or property without due process

of law.”

Speech of Charles Sumner, Cong. Globe, 38th Cong., 1st Sess.

1480 (Apr. 8, 1864).

of their life, liberty, and property.60 This guarantees

equal protection against private violence, prohibits

unequal deprivations of life or liberty, and secures an

equal opportunity to sue in court to secure a property

title or enforce a contract.

It is important to note that these clauses protect

all persons regardless of race, sex, age, or any other

classification. A law protecting only men from bodily

assault would violate women’s right to equal

protection of the laws. Not because females are in a

protected class, but because females no less than

males are a person. The same would be true of persons

denied the equal protection of the laws on account of

their reproductive system. Once again, the denial

would violate the Fourteenth Amendment not because

of the classification but because equal protection had

been denied to a person.

Although these clauses protect all persons,

regardless of race or sex, the primary impetus for their

addition was the failure of southern states to provide

equal due process rights for black residents. As Jacob

Howard explained to his Senate colleagues, the

Fourteenth Amendment prevented states from

enacting racial “codes” where “one measure of justice

is to be meted out to a member of one caste while

See Green, The Original Sense of the (Equal) Protection Clause,

supra, at 3 (2008) (arguing that the original meaning of the

Equal Protect Clause “imposes a duty on each state to protect all

persons and property within its jurisdiction from violence and to

enforce their rights through the court system”).

another and a different measure is meted out to the

member of another caste.”61

As historically understood, neither the Due

Process or Equal Protection Clauses are implicated by

local laws limiting the opportunity to practice

medicine or limiting the kinds of treatments or drugs

one can lawfully receive from a physician. Neither

type of local law involves a failure to protect against

private violence or deny any person judicial

enforcement of contract or property rights.62 Although

restrictions on practicing a trade might be thought as

implicating the Privileges or Immunities Clause (see

below), no framer or ratifier at the time suggested

such laws violate a person’s natural rights.

The above reading of the Equal Protection Clause

differs somewhat from the Court’s current “suspect

class” approach to the Equal Protection Clause.63 The

Court’s current approach to constitutional equality

extends beyond laws that “protect” and requires

heightened scrutiny of any law that discriminates on

the basis of a protected or “suspect” class. Although

this approach was not part of the original

understanding of the Equal Protection Clause, a

Speech of Jacob Howard Introducing a Proposed Fourteenth

Amendment, May 23, 1866, in 2 Reconstruction Amendments:

Essential Documents, supra, at 187–88.

Neither in 1868 nor today is there a constitutional right to

enforce an illegal contract. See, e.g., Armstrong v. Toler, 24 U.S.

11 (1826).

See United States v. Carolene Prods., 304 U.S. 144, 152 n.4

(1938).

similar principle informed the original understanding

of the opening Citizenship Clauses.

It is to those clauses that this brief now turns.

However, as explained below, whether viewed as a

matter of Equal Protection or Equal Citizenship, there

is no historical evidence that the people of 1868 would

have understood the Fourteenth Amendment as

having any effect whatsoever on laws reasonably

classifying the permitted practice of medicine on the

basis of biological difference.

The Citizenship Clauses Do Not

Invalidate State Regulation of the

Practice of Medicine on the Basis of

Biological Difference.

The Citizenship Clauses Reverse

Dred Scott, Incorporate the Bill of

Rights, and Establish a Principle

of Equal Citizenship.

As explained above, the original understanding of

the Equal Protection Clause did not include a general

principle of equality beyond the specific categories of

life, liberty, and property. The Fourteenth

Amendment’s opening Citizenship Clauses, however,

were originally understood as communicating a more

general principle of equal citizenship. Although it

remains debatable whether this principle casts

constitutional doubt on sex-based classifications,

there is no evidence whatsoever that anyone read

these texts as affecting reasonable biologically-based

classifications in the permitted practice of medicine.

The Citizenship Clauses of the Fourteenth

Amendment declare:

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States[.]64

Ratifiers understood these words as overruling the

infamous decision in Dred Scott65 and as requiring

states to respect the rights of national citizenship

(primarily the Bill of Rights66) and the rights of local

(i.e., state) citizenship. The State Citizenship Clause

in particular prevented states from denying black

residents the status of citizenship or creating a kind

of second-tier citizenship lacking the same privileges

U.S. Const. amend. XIV.

See Akhil Amar, America’s Constitution: A Biography 380

(2005).

See Speech of Jacob Howard Introducing a Proposed

Fourteenth Amendment, May 23, 1866, in 2 Reconstruction

Amendments: Essential Documents, supra, at 187–88 (the

Privileges or Immunities Clause protects, among other things,

“the personal rights guaranteed and secured by the first eight

amendments of the Constitution”); Speech of John Bingham

Regarding the Meaning of the Privileges or Immunities Clause,

Mar. 31, 1871, in 2 Reconstruction Amendments: Essential

Documents, supra, at 625 (the rights protected by the Privileges

or Immunities Clause are “chiefly defined in the first eight

amendments to the Constitution of the United States”).

and immunities as those granted to white resident

citizens.67

The equality principle of the State Citizenship

Clause goes far beyond the narrow protections of the

Equal Protection Clause and included the entire

category of local civil rights—from local licensing

opportunities to the provision of local public

education. As Fourteenth Amendment framer Lyman

Trumbull explained, by “civil liberty it ought to be

understood, or rather expressed, that the restraints

introduced by the law should be equal to all, or as

much so as the nature of things will admit.”68 This

mirrored the common understanding at the time that

local “privileges and immunities” were those “which

the citizens of the same State would be entitled to

under the like circumstances.”69

Lash, The State Citizenship Clause, supra (presenting the

history of the Fourteenth Amendment’s State Citizenship Clause

and the original understanding that to be a citizen of the State

was to have the same rights as other similarly situated state

citizens).

Speech of Lyman Trumbull, Jan. 29, 1866, in 2 Reconstruction

Amendments: Essential Documents, supra, at 69.

Joseph Story, Commentaries on the Constitution § 1800, at

674–75 (1833). For example, in his speech responding to

President Johnson’s veto of the Civil Rights Act, Representative

William Lawrence specifically quoted Story’s discussion of

Article IV and its protections of “‘all the privileges and

immunities of citizens,’ that is, all citizens under the like

circumstances.” Cong. Globe, 39th Cong., 1st Sess. 1836 (1866),

in 2 Reconstruction Amendments: Essential Documents, supra,

at 149.

The first Justice Harlan recognized the inherent

equality principle informing the citizenship clause in

his famous dissent in the Civil Rights Cases.70 There

Justice Harlan specifically addressed the meaning

and effect of the State Citizenship Clause:

But what was secured to colored

citizens of the United States—as

between them and their respective

States—by the national grant to them

of State citizenship? ... There is one, if

there be no other—exemption from

race discrimination in respect of any

civil right belonging to citizens of the

white race in the same State. That,

surely, is their constitutional privilege

when within the jurisdiction of other

States. ... Citizenship in this country

necessarily imports equality of civil

rights among citizens of every race in

the same State. 71

Although this Court currently reads the Equal

Protection Clause as establishing a general principle

of equality, the original understanding of the State

Citizenship Clause roughly approximates the same

idea: To be a citizen means to receive the same civil

rights as similarly situated citizens.72

109 U.S. 3 (1883).

Id. at 48 (Harlan, J., dissenting).

See Lash, State Citizenship Clause, supra, at 1098. This

principle includes this Court’s holding in Brown v. Board. See id.

at 1145.

The State Citizenship Clause

Requires Similar Treatment of

Citizens in “Like Circumstances.”

The State Citizenship Clause establishes a

principle of similar treatment for similarly situated

local citizens. To the framers and ratifiers of the

Fourteenth Amendment, the definitive example of

unconstitutional distinctions among citizens involved

classifications based on race. This was the preeminent

issue under discussion in 1866 and drove the passage

of both the Civil Rights Act and the citizenship clauses

of the Fourteenth Amendment. Southern black

Americans faced the enactment of “Black Codes”

denying basic civil rights on the basis of race. The text

of the Civil Rights Act prohibits such racial codes by

requiring that “citizens, of every race and color ... shall

have ... [the] full and equal benefit of all laws and

proceedings for the security of person and property, as

is enjoyed by white citizens.”73 This Act, Reverdy

Johnson explained, “gives the rights of citizenship to

all persons without distinction of color.”74

It is historically beyond question that the framers

and ratifiers viewed race-based distinctions in the

enjoyment of civil rights to be the focal case of what

the State Citizenship Clause no longer permitted.

What is not clear is whether people at the time viewed

sex-based

classifications

constitutionally

14 Stat. 27 (1866) (emphasis added); see also 2 Reconstruction

Amendments: Essential Documents, supra, at 142.

2 Reconstruction Amendments: Essential Documents, supra,

at 78 (remarks of Reverdy Johnson).

problematic. At the time of Reconstruction, a number

of women’s rights advocates insisted that equal

citizenship necessarily involved an equal right to

vote.75 Others insisted that equal citizenship included

an equal right of women to pursue a lawful trade, such

as the practice of law.76

The Republican framers of the Fourteenth

Amendment, however, rejected efforts to establish

equal political (suffrage) rights for women, and John

Bingham led a House Committee that officially denied

that the texts of the Fourteenth Amendment granted

women an equal right to vote.77 Instead, the framers

drafted, and the people ratified, an amendment that

expressly introduced a sex-based classification into

the Constitution for the first time.78

See, e.g., The Petition of Victoria Woodhull on the Subject of

Female Suffrage, Jan. 2, 1871, in 2 Reconstruction Amendments:

Essential Documents, supra, at 607.

See Bradwell v. Illinois, 83 U.S. 130 (1872). Note that Myra

Bradwell brought her legal claim on the basis of the Fourteenth

Amendment’s Citizenship Clauses and not, as would be the case

today, on the basis of the Equal Protection Clause. Id. at 137–38.

This would be expected if, as explained in this brief, people at the

time held a far more limited understanding of the Equal

Protection Clause and looked instead to the Citizenship Clause

for equal civil rights.

See The Woodhull Report (1871), in 2 Reconstruction

Amendments: Essential Documents, supra, at 609.

Section Two of the Fourteenth Amendment reduces

representation in House of Representatives to the degree that

states refuse to grant the right to vote to otherwise qualified

“male citizens.” U.S. Const. amend. XIV, § 2.

In the Slaughterhouse Cases, the Court declined to

read the Privileges or Immunities Clause as

establishing a substantive right to pursue a trade, and

a majority of the Court in Bradwell v. Illinois relied

on Slaughterhouse in turning aside Myra Bradwell’s

claim to an equal right to practice law.79 Although

Justice Field concurred on the basis of his views

regarding the differences between men and women,

nothing in the majority opinion addressed the

constitutionality of sex-based classifications among

citizens.

This Court has not considered whether the original

understanding of the Fourteenth Amendment

rendered sex-based classifications suspect. And there

is no need for the Court to address that matter in the

instant case. That is because there is no evidence that

anyone at the time of the ratification of the Fourteenth

Amendment considered classifications reflecting the

separate and distinct, albeit complementary,

reproductive systems of males and females to be

constitutionally suspect in any way. It’s unlikely there

is a clearer example of categories different “in the

nature of things” than the male and female

reproductive systems.

This Court has previously concluded that statutes

involving

classifications reflecting

differences

between the male and female reproductive system are

not sex-based classification even if the regulated

category is associated with one sex or the other. This

was the basis of the Court’s conclusion in Geduldig v.

Bradwell, 83 U.S. at 139.

Aiello,80 which held that “[a]bsent a showing that

distinctions involving pregnancy are mere pretexts

designed to effect an invidious discrimination against

the members of one sex or the other, lawmakers are

constitutionally free to include or exclude pregnancy

from the coverage of legislation such as this on any

reasonable basis, just as with respect to any other

physical condition.”81

Dobbs

Jackson

Women’s

Health

Organization,82

this

Court

reaffirmed

this

commonsense

non-suspect

understanding

reasonable medical classifications. There the majority

of the Court explained (again):

The regulation of a medical procedure

that only one sex can undergo does not

trigger

heightened

constitutional

scrutiny unless the regulation is a

“mere pretex[t] designed to effect an

invidious discrimination against the

members of one sex or the other.”

Geduldig v. Aiello []. And as the Court

has stated, the “goal of preventing

abortion”

does

not

constitute

“invidiously discriminatory animus”

against women.83

417 U.S. 484 (1974).

Id. at 496 n.20 (emphasis added).

597 U.S. 215 (2022).

Id. at 236 (citation omitted).

The Court rejected a sex-classification reading of

abortion statutes despite the common historical

practice of referring to a women’s sex in the regulatory

statute. 84 In an appendix to the majority opinion, the

Court listed twenty-eight historical statutes enforced

at the time of the ratification of the Fourteenth

Amendment, every one of which specifically referred

to the pregnant “woman” or “mother.”

In the same way, SB1 contains references to a

person’s “sex,” but does so in the context of

classifications which are reasonably designed to

reflect the biological facts concerning male and female

reproductive systems. There is no more reason (and in

fact substantially less reason) to view SB1 as a

pretextual attempt to accomplish invidious sexdiscrimination than there was in Dobbs.

Most of all, there is no historical reason to treat

either SB1 or statutes regulating abortion as

triggering heightened scrutiny under the original

understanding of the Fourteenth Amendment. Even if

this Court looks beyond the original understanding of

the Fourteenth Amendment and considers the history

and tradition of American law post-1868, 85 there is no

historical tradition establishing “gender affirming

care” as a constitutional right or establishing its

denial as a violation of constitutional equality. As

See id. at 302, Appendix A.

See id. at 250 (“[A] right to abortion is not deeply rooted in the

Nation’s history and traditions.”).

Respondent’s brief explains in detail,86 the debate over

the harms and putative benefits of medical

treatments for gender dysphoria are distinctly

modern and are nowhere near resolved.

See Brief for Respondents at 7–11 (describing the on-going

national and international disagreement over the proper

treatment of “gender” dysphoria).

CONCLUSION

States currently take a variety of approaches to

surgical or hormonal treatment of gender dysphoria.

They have full authority to do so under the original

understanding of the Fourteenth Amendment.

This Court should therefore affirm the ruling of

the Sixth Circuit.

Respectfully submitted,

R. TRENT MCCOTTER

Counsel of Record

ANDREW W. SMITH

BOYDEN GRAY PLLC

800 Connecticut Ave. NW,

Suite 900

Washington, DC 20006

(202) 706-5488

tmccotter@boydengray.com

October 15, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.