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) sex-change treatments on children. 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.
“When a court enjoins the executive from enforcing a statute, it is not suspending, revoking, or delaying the effective date of that law. The statute remains in effect; the injunction simply forbids the named defendants to enforce the statute while the court’s order remains in place,” he wrote in an 87-page paper laying out his legal reasoning. “If a court were to dissolve the injunction, the executive would be free to enforce the statute again — both against those who will violate it in the future and against those who have violated it in the past… This leaves the political branches with many tools for inducing compliance with statutes that the judiciary has disapproved.”
Those methods were in display in Texas after the Heartbeat Act. After a judge said the bill violated the state’s constitution and should not be enforced in court, an anti-abortion activist who was a party to the case said “This doesn’t really change the status of Senate Bill 8 at all… It is just as risky for the abortion industry to perform a post-heartbeat abortion tomorrow as it has been for the last 100 days.”
A lower court imposed an injunction in the Texas case, but it was overturned by an appeals court 48 hours later, highlighting the risk that Tennessee medical professionals could face if they take an injunction from Judge Richardson as a green light to proceed.
“The way the Tennessee law is written is a perfect model. It worked in Texas,” Mitchell told The Daily Wire. “The abortion providers just gave up. The Biden administration filed a lawsuit against Texas and got a preliminary injunction, it was vacated 48 hours later but all the abortion providers stayed in compliance. Ninety to ninety-five percent compliance because they knew they could be sued retroactively,” he said.
He said that other states like Florida and Alabama — which have also banned the procedures but had injunctions imposed — should say “We’re going to obey the injunction, because we will not initiate an enforcement action while it’s in effect. But once it’s gone we’ll do it after appeal.”
“It’s not the consensus view of an injunction, but in my view its the correct view. People have fallen victim to this fallacy for decades. Federal courts do not have the ability to act directly on legislation,” Mitchell said.
“The state can go after Vanderbilt if the injunction is lifted for what they did while it was in effect. Then VUMC can say ‘no fair, there was an injunction,’ and that would be litigated in state or federal court,” he said. Ultimately, such cases would be decided by an appeals court that is conservative, he said. “Just the threat and possibility is enough to deter… I think we’d win with the current SCOTUS, but there’s uncertainty and it works to our advantage,” he added.
The Tennessee law separately draws lessons from Texas by relying partly on private enforcement. Mitchell’s infamous loophole for passing an abortion ban during Roe was that private citizens could enforce it by suing abortion providers — a loophole based on the same logic that an injunction only binds a specific defendant who is already in court, generally the state attorney general.
The Tennessee law doesn’t allow random citizens to sue, but it allows children who underwent surgeries to sue decades later if they conclude that they were taken advantage of when they did not have the ability to consent — for example, if as an adult, they want to have children, and become angry that they are sterile. An injunction wouldn’t affect that part of the law.
“VUMC would be absolutely crazy to proceed with these treatments on the basis of an injunction. They could be sued by private citizens, and if the injunction is overturned on appeal they can be prosecuted,” Mitchell said.