When Is a Matter Strictly between a Patient and Doctor - US v. Skrmetti?

Author: Tim Platnich

Published: June 20, 2025

The US Supreme Court released its decision in United States v. Skrmetti, et al, on June 18, 2025. By a 6-3 decision, the Court upheld a Tennessee law that restricts sex transition treatments for minors. The split in decision was the all too typical one with Sotomayor, Jackson and Kagan, JJ. in dissent.

I don't intend to get into a detailed analysis of the case however I am intrigued by a point made by the dissenting judges. In their view, it seems, sex transition treatment for minors should be strictly a matter between the minor, the minor's parents and the treating doctor. Is and should this be so?

On its face, the principle that medical treatment should be between patient and doctor seems reasonable. This assumes that the doctor is competent to prescribe treatment and the patient is capable of giving informed consent to the treatment.

It is trite that not all doctors are competent to prescribe all treatments. Competency, in the sense I am using the word, has two components. First, the doctor must have the legal and ethical jurisdiction to act in a given case. By this, I mean, the doctor must act within legal and ethical limits. The doctor's proposed treatment must be legal and ethical. Second, the proposed treatment must be within the doctor's area of competency from a medical training perspective. A cardiologist should not propose treatment for a kidney disorder without the requisite expertise.

Legislatures are generally within their right to set legal boundaries on what a doctor may or may not do. One area where this is undoubtedly true is in the case of active euthanasia. Another case where this is true, as a matter of fact, is the prescription of drugs. Drugs that have not been approved for use cannot be prescribed by a doctor even where both the doctor and patient agree to the use of the unapproved drug in the patient's circumstances.

Unless legislation of a legislator violates a constitutional law, the law is valid and is binding on doctors who practice within the jurisdiction of the legislature. The issue in Skrmetti was whether the law was unconstitutional. The issue was not whether the law was a good law. In this sense, the argument (or principle, or policy) that treatment should be a matter between doctor and patient is irrelevant. The Tennessee legislature decided, in effect, that sex transition treatments on minors was beyond the legal competence of medical practitioners.

But, leaving legalities aside, let's consider whether the principle that treatment should be a matter between doctor and patient is subject to other considerations in this case. One major consideraton is that the patient is a minor and could be as young as a first-grader. How can such a minor give informed consent? It is unethical for doctors to render non-emergency treatment without a patient's informed consent. Without informed consent, a doctor's treatment, depending on its form, may be both a civil and criminal assault of the patient. Given the existing state of the science concerning the efficacy of sex transition treatment and its potential for causing demonstrated harm, how can informed consent be given by any patient, let alone a pre-puberty minor?

In effect, the Tennessee law says that minors are not capable of giving informed consent - hence the blanket prohibition. Is not a legislator the proper decision maker regarding the informed consent of minors?

The counter-argment will be that parents can consent on behalf of their children. This is certainly so for non-controversial medical treatments. It becomes less so where treatment is controversial - like the withholding of consent for life-saving treatment of a minor for religious reasons. Given the state of the science regarding sex transition treatment for minors, can even a parent give informed consent? Indeed, given the state of the science, are doctors even able to solicit informed consent?

SCOTUS spends a great deal of time reviewing the state of the science as it has evolved over time. Who ultimately should decide whether the science is sufficiently developed to underlie any possibility of informed consent: the legislatures; judges; medical associations; individual doctors; parents; or minors? The dissenting judges hold that it can't be state legislatures because any attempt by them to regulate sex transition treatment would be in violation of the equal protection clause which protects against discrimination on the basis of 'sex'. By default then, it must be the doctors. In his concurring reasons, Justice Thomas explains why it is more appropriate for legislatures to determine the issue than doctors.

The whole debacle around 'OxyContin' illustrates the concern about doctors and their states of knowledge. Doctors were encouraged by Purdue Pharma, the maker of the drug, to prescribe the drug. The doctors were lobbied and even bribed. They were provided with information, that later proved to be false - that the drug was non-addictive. The doctors prescribed the drug to be used at various dosages to treat chronic pain. The end result was narcotic drug addiction to an unprecedented extent among certain groups of users.

Are the doctors prescribing sex transition treatment for minors well informed or are they being misinformed by lobbyists of various sorts including pharmaceutical companies and activists? Are progressive minded parents being manipulated into giving consent by being asked whether they would rather have a transboy or a dead child?

In other words, in today's environment on the issue of gender dystopia and trans rights, are minors, their parents and their doctors really operating within the normal parameters of informed consent?