As the U.S. Supreme Court gears up for its new term, the Justices are poised to tackle a docket brimming with high-stakes appeals that could shape the policy landscape for the next administration. The issues are varied, from election law to environmental regulation to gun regulations.
Among the critical issues at hand, three cases stand out for their focus on the regulation and protection of children and minors. Each of these cases carries significant implications for public health, civil rights, and the boundaries of state and federal authority. Let’s take a look at why these cases could make this upcoming term at the Court a pivotal one for America’s youth.
Trans Care for Youth
The slight majority of states (26) have passed bans on gender-affirming care for youth. 118,300 such minors — nearly 40% of Americans age 13 to 17 who identify as trans — live in states where such care is banned.
About a year ago, the Sixth Circuit Court of Appeals upheld Tennessee's ban on gender-affirming care for minors, reversing a lower court's injunction. Tennessee's law, enacted earlier that year, prohibited healthcare providers from prescribing puberty blockers and hormone therapies and from performing reassignment surgeries on gender-dysphoric minors, with limited exceptions. Plaintiffs, including three transgender minors, argued the law violated their due process and equal protection rights.
In a split decision, the court ruled that parents do not have an unfettered right to choose medical treatments that states reasonably ban and found no deeply rooted historical norm against such state regulations. The majority also determined that the law did not warrant heightened scrutiny under equal protection principles, as it treated all minors equally and reasonably related to legitimate government interests. In dissent, Judge Helene White argued the law infringed on parental rights and discriminated based on sex and gender identity. She cited professional endorsements of gender-affirming care and recent Supreme Court precedent.
The ruling also impacted Kentucky law. With its opinion, the Sixth Circuit also reversed the district court's injunction that had previously blocked the enforcement of Kentucky's law restricting gender-affirming care for minors. This means that, similar to Tennessee, Kentucky's law is now in effect as well. The decision aligns with a similar ruling by the Eleventh Circuit on a similar law in Alabama.
A big argument of Tennessee’s is that they (or any state) has a “legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” It is not entirely clear what the court meant with this phrasing.
Just four years ago, SCOTUS ruled in Bostock v. Clayton Country that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination, and therefore illegal under Title VII of the Civil Rights Act of 1964. But now, the Court plans to review the gender-affirming care bans under the Constitution, not under a law.
This is all the more significant because the makeup of the bench has changed since Bostock, with Justice Barrett replacing Ruth Bader Ginsburg and Justice Jackson replacing Breyer. With its new makeup, most see the court as favoring more conservative-minded judicial opinions.
Flavored E-Cigs
The CDC recently published the National Youth Tobacco Survey, revealing several key trends and data points related to use of e-cigarettes and flavored e-cigarettes among U.S. middle and high school students. Last year, e-cigarettes were the most commonly used tobacco product among students, with 7.7% of all students (10.0% of high school students and 4.6% of middle school students) reporting current use. A high percentage (89.4%) of current e-cigarette users reported using flavored products. The most popular flavors were fruit (63.4%) and candy (35.0%). Among disposable e-cigarette users, the top flavors were fruit (70.5%), candy (39.8%), mint (32.0%), and menthol (18.7%).
These findings highlight the continued popularity of flavored e-cigarettes among youth and the significant use of disposable e-cigarettes. The FDA argues that data like this underscores the need for sustained efforts to prevent young people from starting e-cigarrette use and promote cessation among those already initiated. Since 2009, when the Family Smoking Prevention and Tobacco Control Act went into effect, the FDA has held special regulatory authority to address what was seen as a public health crisis to youth especially. In the past decade and a half, any new tobacco product must obtain authorization from the FDA to be sold and marketed.
In January, the Fifth Circuit ruled in favor a tobacco products company called Triton and against the FDA, finding that the agency acted arbitrarily and capriciously in denying the companies' applications to sell e-cigs. Many of the reasons that the FDA failed was related to the requirements it set out for PMTA approval. The agency's guidance documents had stated that long-term studies were not necessary, yet the FDA denied the applications for lacking such studies.
Triton, who makes flavors for vapes, argued that these flavors benefit society by helping adults kick their smoking addiction. The FDA’s counterargument was that the bigger effect of these flavors was to attract new tobacco users as a gateway, rather than helping current tobacco users.
The FDA also pointed out that several other circuits have sided with the agency in similar cases, rejecting claims that the FDA acted arbitrarily and capriciously. The Second, Third, Fourth, Sixth, Seventh, Ninth, and D.C. Circuits have all upheld the FDA's denials of applications for flavored e-cigarettes. But the Fifth Circuit wasn’t swayed, basically saying that its own analysis led it to a different conclusion.
U.S. Solicitor General Elizabeth Prelogar argued to the Supreme Court in the government’s application for review that the Fifth Circuit’s ruling “threatens to undermine the Tobacco Control Act’s central objective of ‘ensuring that another generation of Americans does not become addicted to nicotine and tobacco products.’”
But on its surface, the appellate court’s ruling did not take a stance on the appropriateness of making flavored vapes. Rather, it was about the propriety of the FDA’s procedure in going about its regulatory authority. While anti-tobacco organizations have praised SCOTUS for deciding to hear the appeal, tobacco companies are also curious to hear what the Justices will have to say about the FDA’s “surprise, after-the-fact imposition of new study requirements and failure to follow its own guidance.”
The FDA contends that these rulings collectively support its position that it has consistently applied the same evidentiary standards and has acted within its statutory mandate under the Tobacco Control Act. The FDA argues that these precedents demonstrate that it did not change its position or act arbitrarily and capriciously in denying the PMTAs for flavored e-cigarette products.
Age Limits on Viewing Porn
The Fifth Circuit has yet another big case up for SCOTUS review next term. This one also involves an attempt at regulating the behavior of America’s youth. In March, the Fifth Circuit upheld a Texas law that required commercial pornographic websites to verify the age of visitors.
The law, aimed at protecting minors, mandates that websites displaying significant sexual content use reasonable age verification methods, such as checking government-issued IDs or using digital identification, without retaining identifying information. The law initially also required these sites to post health warnings about the potential harms of pornography, though this requirement was deemed unconstitutional.
The law faced legal challenges from the porn industry, arguing it violated the First Amendment and the Communications Decency Act (CDA). The Fifth Circuit found that the age verification requirement did not violate the Constitution or the CDA, as it was a reasonable measure to protect minors and was appropriately tailored to target harmful material for youths. The court thus let the law stand, making it tougher for minors in Texas to access pornographic websites.
But the group of porn producers, represented by the Free Speech Coalition, asked SCOTUS to intervene, arguing that the Texas law chills adults' access to protected speech. The porn producers argue that the Fifth Circuit's decision conflicts with SCOTUS precedents. They also claim Texas would suffer minimal harm from a pause on the law due to its exemptions for search engines and social media sites.
Attorneys for the state of Texas argue that nothing about the law is exceptional; it doesn’t prohibit the production or sale of pornography. “Instead,” they wrote to SCOTUS, “it simply requires the pornography industry that makes billions of dollars from trafficking in obscenity to take commercially reasonable steps to ensure that those who access the material are adults.”
A Momentous Term Approaches
These three cases are, of course, not the only ones this term that could have a large impact on public policy and regulations. But, while issues involving minor children often come before the nation's highest court, these three are notable for their focus on hot-button issues regarding children's safety.
Related Resources:
- History of the United States Supreme Court (FindLaw's Supreme Court Center)
- Supreme Court Roundup (FindLaw's Federal Courts)
- When Is it Legal for Teens To Buy Tobacco or E-cigs? (FindLaw's Law and Daily Life)
