TMA Staying Involved as Courts Rule on Gender-Affirming Care, SB 8

The Texas Medical Association is making sure medicine’s best interests are considered in two legal cases in which courts handed down significant decisions on March 11, impacting physicians and the patients they serve.  

The first was a decision in a Travis County District Court that temporarily blocks the state from investigating reports of alleged child abuse filed solely on the basis that families, physicians, and other medical professionals are providing or facilitating gender-affirming care. The decision also temporarily bars the state from imposing certain reporting requirements on medical professionals and others in the state who are aware of someone facilitating or providing gender-affirming care to minors. TMA filed a friend-of-the-court brief in the case supporting medically necessary, gender-affirming care, and opposing the criminalization of such treatment. 

Judge Amy Clark Meachum’s decision blocked the state’s investigations because, in part, she found “a substantial likelihood” that the lawsuit to stop the investigations would succeed on constitutional grounds. The state’s directive in February to investigate gender-affirming care cases as child abuse came “despite no new legislation, regulation or even stated agency policy,” she said in her decision. 

The court also set a trial date of July 11 to hear the merits of the case. The Texas attorney general has appealed the court decision. 

TMA General Counsel Rocky Wilcox says the recent decision is only the beginning of the legal dispute over gender-affirming care, with likely escalations to the state’s first appellate court level and the Texas Supreme Court by whichever side loses. 

“It’ll probably go on for awhile and potentially could be part of the next legislative session” when the Texas Legislature convenes in 2023, Mr. Wilcox said. 

Also on March 11, the Texas Supreme Court answered a question from the U.S. Court of Appeals for the Fifth Circuit related to Senate Bill 8, which bars abortion after the detection of a fetal heartbeat. The state Supreme Court concluded Texas law does not authorize certain state officials to enforce SB 8, either directly or indirectly. But SB 8 also contains provisions regarding enforcement by a private civil cause of action, meaning it gives broad latitude for almost any person to sue others for performing or knowingly aiding and abetting a termination of pregnancy in violation of the law. 

TMA does not take a position on the subject of abortion. However, TMA does oppose provisions of the law that directly interfere with the patient-physician relationship and has filed friend-of-the-court briefs on this issue in Texas v. U.S., a companion case now pending in the Fifth Circuit. 

Legal authorities see the March 11 decision as clearing the way for the Fifth Circuit to rule on whether SB 8 is constitutional. 

Last Updated On

March 23, 2022

Originally Published On

March 14, 2022

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