“VUMC would be absolutely crazy to proceed with these treatments on the basis of an injunction,” lawyer says.
The State of Tennessee is vowing to defend its law against child sex changes from a Biden administration challenge, floating an aggressive legal theory that could hold medical providers to account even if a federal judge imposes the injunction sought by the White House.
The law, S.B. 1, was triggered in part by The Daily Wire’s September 2022 exposes on Vanderbilt University Medical Center’s (VUMC) genital mutilation of children, which top doctors acknowledged were “big money makers” and were done “with little evidence, but a lot of love.” The state law is scheduled to take effect July 1, but the Biden administration joined the ACLU and several teenage plaintiffs suing to stop it and is now seeking the injunction in order to block its enforcement until a judge rules on the case.
Adam Mortara, an outside attorney hired to argue the case for Tennessee Attorney General Jonathan Skrmetti, a Republican, said in a May 19 brief that even if a judge imposes an injunction, VUMC should resume treatments at its own peril because if the injunction is later overturned, the state may retroactively prosecute it.
“A preliminary injunction is, by definition, preliminary,” Mortara said. “It will disappear if this Court rules for Defendants at trial, and it could be stayed or reversed on interlocutory appeal. If either occurs, VUMC can be held liable for its violations of the Act while the preliminary injunction was in place,” he wrote.
The gist of the theory, which cites a 1982 case called Edgar v. Mite Corp, is that an injunction doesn’t actually strike down the law, it merely prohibits the defendant — the Attorney General — from initiating enforcement action while it’s in place. If the injunction is eventually lifted — whether through a ruling by District Court Judge Eli Richardson, the Sixth Circuit, or ultimately the U.S. Supreme Court, then Tennessee can resume enforcement, including retroactive prosecution for the period in which the law was in place but the injunction was in effect.
The result is that an injunction could have little effect, because VUMC and others who might perform gender surgeries likely believe conservative appeals courts will ultimately side with Tennessee, and may be afraid of costly litigation and punishment after the fact.
The maneuver, which could provide a blueprint for other states that ban gender surgery but then face an injunction, takes a cue from the Texas Heartbeat Act, which largely succeeded in banning abortion in Texas even before the Supreme Court struck down Roe vs. Wade. The Texas bill was written by Jonathan Mitchell, an unorthodox conservative attorney who is close friends with Mortara. Mitchell wrote an academic paper laying out the case that injunctions are not as powerful as they have traditionally been regarded.
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