THE SUPREME COURT OF THE UNITED STATES

SPRING TERM, 2020

DOCKET NO. 01-01234

THOMAS SMITH, et al.;

Petitioner,

v.

JUDITH BELL, et al.;

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

FOR THE TWELFTH CIRCUIT

Brief for Respondent

Team #10

(Issue 1) –

(Issue 2) –

i

Table of Contents

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issue 1

I. THE FIRST AMENDMENT’S FREE SPEECH PROTECTIONS ALLOWS FOR

CERTAIN REGULATION OF PROFESSIONAL CONDUCT THAT MAY

INCIDENTALLY INVOLVE SPEECH. . . . . . . . . . . . . . 5

II. INTERMEDIATE SCRUTINY IS THE APPROPRIATE STANDARD TO REVIEW

A2211 . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. A2211 MEETS THE STANDARDS OF AN INTERMEDIATE SCRUTINY ANALYSIS. . . . . . . . . . .. . . . . . . . . . . . . . 12

Issue 2

I. THERE IS NO FUNDAMENTAL RIGHT TO SEEK MEDICAL TREATMENT

THAT POSES CRITICAL HEALTH RISKS AND IS INEFFECTIVE . . 14

II. A2211 SURVIVES BOTH RATIONAL BASIS AND STRICT SCRUTINY

REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . .17

III. A CHILD’S INTEREST IN THEIR OWN WELL-BEING MUST BE PROTECTED. . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

Table of Authorities

Cases

Chaplinsky v. N.H., 315 U.S. 568(1942) . . . . . . . . . . . . 5

Collins v. City of Harker Heights, 503 U.S. 115 (1992) . . . .15

Conant v. Walters, 309 F.3d 629(9th Cir. 2002) . . . . . . . . 8

Giboney v. Empire Storage & Ice Co., 336 U.S. 490(1949) . . . .7

Greater New Orleans Broad. Ass'n, Inc. v. United States, 527

U.S. 173(1999) . . . . . . . . . . . . . . . . . . . . . 13

King v. Governor of New Jersey, 767 F. 3d 216(3rd Cir. 2014) . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

Lassiter v. Department of Soc. Servs., 452 U.S. 18 (1981) . . 19

National Ass'n for the Advancement of Psychoanalysis v.

California Bd. of Psychology, 228 F.3d 1043 (9th Cir.

2000). . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nat'l Inst. of Family & Life Advocates v. Becerra, 138 U.S. 2361

(2018) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

New Orleans v. Dukes, 427 U.S. 297 (1976) . . . . . . . . . . 17

Parham v. J.R., 442 U.S. 584, 603 (1979) . . . . . . . . .19,

Pickup v. Brown, 42 F. Supp. 3d 1347 (E.D. Cal. 2012) . . . . .

. . . . . . . . . . . . . . . . . . . . .14, 15, 16, 17, 18

Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) . . . . . . 8, 18

Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992) . . . . .5

Prince v. Massachusetts, 321 U.S. 158 (1944) . . . . . . . . .16

R.A.V. v. St. Paul, 505 U.S. 377(1992) . . . . . . . . . 10, 11

Reed v. Town of Gilbert, 135 U.S. 2218(2015) . . . . . . . . .10

Schenck v. United States, 249 U.S. 47(1919) . . . . . . . . . 5

Sorrell v. IMS Health Inc., 564 U.S.552(2011) . . . . . . .9, 12

Troxel v. Granville, 530 U.S. 57 (2000) . . . . . . . . . . . 15

iii

Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) . . . . . . 9, 12

Ward v. Rock Against Racism, 491 U.S. 781(1989) . . . . . . . 10

Wash. v. Glucksberg, 521 U.S. 702 (1997) . . . . . . . . . . .14

Watson v. State of Maryland, 218 U.S.173(1910) . . . . . . . . 9

Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . . . . . . . . . 16

Statutes

TA. Stat. Ann. § 21:1-23-24 (2019) . . . . . . . . . . 4, 18, 19

1

Questions Presented

Issue 1: Whether TA. Stat. Ann. § 21:1-23-24 (2019) violates the

free speech clause of the First Amendment.

Issue 2: Whether TA. Stat. Ann. § 21:1-23-24 (2019) violates

parents’ Fourteenth Amendment right to direct upbringing of

children.

Opinions Below

Smith v. Bell, No. 16-1513 (13th Cir. 2019)

Introduction

Issue 1:

Assembly Bill A2211 (“A2211”) bars licensed professional

counselors from engaging in the practice of conversion therapy

on minors. In adopting A2211, the state legislature cited the

concerns of major professional associations of mental health

practitioners that this practice poses “critical health risks.”

Smith v. Bell, No. 16-1513 at 2 (13th Cir. 2019). Petitioners

Smith, et al filed suit, alleging that A2211 infringes upon

their First Amendment free speech rights. As the free speech

clause does not prohibit the states from regulating certain

forms of professional conduct, nor from protecting their

citizens from harmful professional practices, the Respondent

respectfully urges this court to uphold the opinion of the

Thirteenth Circuit.

2

First, A2211 simply regulates a form of specific medical

treatment that is well within the reasonable licensing and

regulation regime by the State. This Court’s jurisprudence has

allowed for the regulation of such professional conduct that

incidentally involves speech. Second, given the nature of the

conduct regulated by A2211, intermediate scrutiny is the

appropriate level of review in this case. Restrictions on the

administration of certain medical practices do not implicate the

dangers to freedom of expression or pose the risk of censorship

that would warrant a heightened standard of scrutiny. Third,

A2211 satisfies the requirements of an intermediate scrutiny

analysis. The law furthers the important governmental interests

in protecting the general welfare of its citizens, this interest

is unrelated to the suppression of free expression, and any

incidental restrictions on First Amendment protected speech are

confined to those necessary to achieve this interest.

Issue 2:

There is no constitutionally protected right of parents to

obtain a specific medical treatment for their children when the

State has reasonably restricted that treatment. Petitioners John

and Jane Doe challenge Assembly Bill A2211, codified at TA Stat.

Ann. § 21:1-23-24 (2019) (“A2211”) and allege that it violates

their right to substantive due process in directing the

3

upbringing of their children. In a well-reasoned opinion, the

Thirteenth Circuit rejected this constitutional challenge to the

law, holding that the parental right to direct the upbringing of

their children is not without limit and does not include a right

to obtain a particular type of treatment when the government has

reasonably prohibited that type of treatment.

The decision by the Thirteenth Circuit should be affirmed.

If there is a right to direct the upbringing of one’s children,

that right does not include the right to seek medical treatment

that poses critical health risks and is ineffective. The

fundamental right of parents to direct the upbringing of their

children is clearly limited and where there is no fundamental

right, A2211 should be reviewed under the rational basis test.

The state has a compelling interest in protecting the mental

health of minors and may regulate practices that are

demonstrated to be harmful. Finally, a child has a protected

liberty interest in not receiving medical treatment that is

harmful to their well-being, and this general right should

supersede the right of parents to seek harmful medical treatment

for children.

Statement of the Case

The state of Texarkana passed and enacted Assembly Bill

A2211 (“A2211”) in 2018 in order to “protect the physical and

psychological well-being of lesbian, gay and bisexual minors

4

from exposure to serious harms caused by conversion therapy.”

TA. Stat. Ann. § 21:1-23-24 (2019). A2211 prohibits licensed

professional counselors to provide conversion therapy to minors,

where conversion therapy is “the practice of seeking to change a

person’s sexual orientation, including but not limited to

efforts to change behavior or to reduce or eliminate sexual or

romantic attractions or feelings towards a person of the same

gender.” TA. Stat. Ann. § 21:1-23-24 (2019).

Two groups of plaintiffs challenged A2211: individuals who

seek to provide conversion therapy (“counselor Petitioners”) and

parents who seek to obtain such counseling for their children

(“parent Petitioners”). Counselor Petitioners filed suit to

challenge A2211 as a violation of their First Amendment rights

to free speech. Parent Petitioners filed suit to challenge A2211

as a violation of their right to direct the upbringing of their

children under the Fourteenth Amendment.

The District Court granted summary judgment in favor of the

State Defendants, and the judgment was affirmed by the

Thirteenth Circuit. The Thirteenth Circuit held that, applying

intermediate scrutiny, the statute’s ban on conversion therapy

is a valid exercise of the government’s power to protect the

health and safety of its citizens. Smith v. Bell, No. 16-1513 at

4-5 (13th Cir. 2019). The Thirteenth Circuit further held that

“parents do not have a constitutional right to obtain a

5

particular type of treatment for their children” when “the

government has reasonably prohibited that type of treatment.”

Id. at 5.

Argument

Issue 1:

I. THE FIRST AMENDMENT’S FREE SPEECH PROTECTIONS ALLOWS FOR

CERTAIN REGULATION OF PROFESSIONAL CONDUCT THAT MAY

INCIDENTALLY INVOLVE SPEECH.

It is undeniable that the free speech protections

guaranteed by the First Amendment play a foundational role which

undergirds our democratic system and cultural heritage. Yet it

is an equally important and undeniable conclusion that these

protections are not without their limits. Time and time again

this Court has found certain necessary limitations on this

right. In the advancement of important governmental interests –

such as maintaining public health and safety– limitations have

been placed upon certain forms of speech. Falsely yelling “fire”

in a crowded theater or uttering fighting words have, for

instance, been found to be instances of speech that lie outside

of the First Amendment's protection. See Chaplinsky v. N.H., 315

U.S. 568 (1942), Schenck v. United States, 249 U.S. 47 (1919).

Similarly, this Court’s jurisprudence has found licensed medical

practitioners’ communicative conduct, which is part of their

practice of medicine, to be “subject to reasonable licensing and

regulation by the State.” Planned Parenthood v. Casey, 505 U.S.

6

833, 884 (1992) (internal citation omitted). As recently as 2018

this Court has reaffirmed this viewpoint. Nat'l Inst. of Family

& Life Advocates v. Becerra, 138 U.S. 2361, 2372 (2018).

This, of course, has not granted free reign to governments

seeking to issue content-based regulations on medical

practitioners. This court has previously noted the potential

dangers that may accompany content-based regulations in the

realm of medicine and public health. Id., at 2374. However such

dangers that have been warned about, and subsequently limited,

in prior cases are not applicable in the present case.

In National Institute of Family & Life Advocates v.

Becerra, the Court was confronted with a California statute

which required clinics that primarily served pregnant women

provide certain notifications –including notifying women about

access to abortion services. A number of pro-life crisis

pregnancy centers objected to this new law, contending that

these mandated notices abridged their First Amendment free

speech protections. Id., at 2365. In striking down that law the

court cited its concerns that such content-based regulations of

speech was not intended “not to advance a legitimate regulatory

goal, but to suppress unpopular ideas of information.” Id., at

2374. Yet it was emphasized that this concern was directed

solely towards limitations on the advice given –or withheld– in

7

the course of “doctor-patient discourse,” and not on the actual

administration of medicine. Ibid. The majority even explicitly

lists regulations on communicative conduct that is “part of the

practice of medicine” as a valid form of regulated speech;

specifically pointing to the requirements at issue in Planned

Parenthood v. Casey as an example. Id., at 2373. Though the

requirements at question in Casey involved conducted that

required speech between a patient and her physician, this did

not necessitate that the regulated practice be considered

speech. Such a finding is in-line with the Court’s earlier

holding that conduct which is inherently carried out “by means

of language” can still be considered conduct for First Amendment

purposes. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502

(1949). It has thus been well established that certain

regulations of professional medical conduct, including speech-

related conduct, are allowed under the First Amendment’s free

speech protections. It is further evident that A2211 falls under

this permissible regulation of conduct, and not a regulation of

speech.

Though this Court has never before dealt with the issue of

a conversion therapy ban –nor any other ban on a specific form

of psychotherapy– lower courts have found such regulations of

professional conduct to be permissible. Girding this rationale

8

has been an understanding that the spoken language used in the

furtherance of psychotherapy falls under the conduct furthered

by means of language allowed for under Giboney. Pickup v. Brown,

740 F.3d 1208, 1229 (9th Cir. 2014). In reliance upon such an

understanding the 9th Circuit reasonably concluded in Pickup v.

Brown that the prohibition on licensed mental health providers

to practice conversion therapy on their minor patients was

permissible as a ban on a specific form of medical treatment for

minors. Ibid. In justifying this conclusion that Pickup court

analogized the present issue to the one at bar in Conant v.

Walters. There, though the 9th Circuit found that a federal

policy prohibiting doctors from prescribing medical marijuana to

violate free speech principles, they stressed that the

government’s power to prohibit doctors from actually treating

patients with marijuana was unquestionable. Conant v. Walters,

309 F.3d 629, 635-636 (9th Cir. 2002). Similarly, in the present

case, A2211 allows licensed practitioners to discuss, and even

recommend, conversion therapy to their patients. What it does

limit, specifically, is the ability of doctors to treat minor

patients in a manner that poses “critical health risks.”

The power of the states to regulate certain trades and

professions –especially those closely tied to concerns of public

health– has been a well-established fact in our nation’s

9

jurisprudence. Watson v. State of Maryland, 218 U.S. 173, 176,

30 S. Ct. 644, 54 L. Ed. 987 (1910). Were this court to overrule

Conant and other cases in finding A2211 to violate the First

Amendment it would be opening a Pandora's box in limiting the

government’s ability to regulate the practice of medicine. Or,

as phrased by Judge Smith of the 3rd Circuit, “To handcuff the

State's ability to regulate a profession whenever speech is

involved would therefore unduly undermine its authority to

protect its citizens from harm.” King v. Governor of New Jersey,

767 F. 3d 216, 232 (3rd Cir. 2014). Respondents therefore urge

this Court to maintain the government’s ability to properly and

narrowly regulate medical conduct, even those forms of conduct

that involve spoken communication, in finding psychotherapy to

be a form of professional conduct –and not speech.

II. INTERMEDIATE SCRUTINY IS THE APPROPRIATE STANDARD OF REVIEW

FOR A2211

Given that A2211 serves to regulate professional conduct

rather than speech intermediate scrutiny is the appropriate

standard of analysis to apply in keeping in line with this

Court’s precedent. In the past strict scrutiny has often been

used in reviewing free speech claims under the first amendment.

See Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), Turner

Broad. Sys. v. FCC, 512 U.S. 622 (1994). However, strict

scrutiny has been applied in these instances upon a finding that

10

the regulations being reviewed were content-based in nature.

Content-based laws, as has been argued, targets speech on the

basis of its very communicative content. Such laws are thus

deemed to be facially unconstitutional and can only pass

constitutional muster by overcoming a stringent analysis. Reed

v. Town of Gilbert, 135 U.S. 2218, 2222 (2015). A2211, however,

is not such a content-based law.

In determining whether a law is content-based or content-

neutral, “[t]he government’s purpose is the controlling

consideration.” Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989). This view is pursuant to a long-standing principle that

the First Amendment does not allow “special prohibitions on

those speakers who express views on disfavored subjects.” R.A.V.

v. St. Paul, 505 U.S. 377, 391 (1992). The First Amendment

necessitates that speech should not be stifled on account of its

message. This concern, however, is not present here. A2211 does

not ban anyone from speaking unpopular opinions or viewpoints.

As has previously been noted, nothing in A2211 prohibits

licensed counselors –nor any other persons– from discussing or

recommending conversion therapy. Under A2211 a therapist may

sing the praises of or denigrate conversion therapy –or any

other form of psychotherapy, for that matter. What it does,

however, is to protect vulnerable populations from a potential

11

dangerous medical practice. It is the protection of public

health –and not the stifling of any opinions or viewpoints– that

served as the government’s purpose in passing this legislation.

This fact is evidenced in the preamble of the bill, which cites

to the views of “major professional associations of mental

health practitioners” that conducting conversion therapy on

minors poses “critical health risks.” Smith v. Bell, No. 16-1513

at 2 (13th Cir. 2019). There are no other apparent governmental

purposes in the adoption of A2211, nor did Petitioners raise any

other possible purposes in arguments before the lower courts.

Further, were this Court to find A2211 to be content-based,

strict scrutiny would still not be an appropriate level of

analysis. It was noted in R.A.V. v. City of Saint Paul that

unprotected and lesser protected categories of speech that are

content-based do not trigger a strict scrutiny analysis,

provided that “the basis for the content discrimination consists

entirely of the very reason the entire class of speech at issue

is proscribable.” R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992).

Such is the case for the type of content-based communication at

issue here. Resultingly, it is apparent that the standards for

applying strict scrutiny are not met in this case.

Traditionally, content-neutral regulations have been

analyzed under the intermediate scrutiny standard set forth in

12

United States v. O’Brien. This approach has found continuous

usage and approval by the Court. Turner Broad. Sys. v. FCC, 512

U.S. 622, 662 (1994). Given the inapplicability of strict

scrutiny to the present case it is keeping in the precedent of

this Court to apply a standard of intermediate scrutiny.

III. A2211 MEETS THE STANDARDS OR AN INTERMEDIATE SCRUTINY ANALYSIS Under an intermediate scrutiny analysis, a law can bear

sufficient constitutional muster if it establishes the harms

seeking to be addressed are “real, not merely conjectural, and

that the regulation will in fact alleviate these harms in a

direct and material way.” A2211 passes every one of these

prongs.

As has been discussed above, A2211 fulfils a vital interest

in promoting the general welfare and public health of

Texarkana’s citizens by curtailing the exposure of a vulnerable

subset of the population to the critical health risks posed by

conversion therapy. This undoubtedly qualifies as substantial

government interest. The promotion of public health has, after

all, been previously endorsed as such a governmental interest by

this Court. Sorrell v. IMS Health Inc., 564 U.S. 552, 554

(2011). Leading psychologists and psychological associations,

including the American Psychological Association, have warned of

the severe and significant danger to minors that is posed by

13

this medical practice. Smith v. Bell, No. 16-1513 at 2 (13th

Cir. 2019). The negative health risks posed by conversion

therapy have been endorsed by lower courts in advancing an

important enough governmental purpose so as to justify similar

legislation in other states. King v. Governor of New Jersey, 767

F. 3d 216, 238 (3rd Cir. 2014). Given the precedent for finding

the protection of public health as an important governmental

interest and the record showing the health risk posed by

conversion therapy for minors it is evident that A2211 addresses

a very real harm. What’s more, the interest at issue –public

health– is so vital as to be said that A2211 even furthers a

substantial governmental interest necessary to survive strict

scrutiny.

Finally, the ability of these regulations to alleviate

these harms in a direct and material is similarly evident. The

means employed to achieve the goals of A2211 are by no means

more extensive than necessary. In demonstrating as such it is

not necessary that the law employs the least restrictive means

available, but rather a narrow tailoring must be demonstrated.

Greater New Orleans Broad. Ass'n, Inc. v. United States, 527

U.S. 173, 188, 119 S. Ct. 1923, 144 L. Ed. 2d 161 (1999). A2211

does not limit the ability of licensed persons to discuss or

promote conversion therapy. Nor does the law stifle the ability

of unlicensed individuals to engage in the practice. While A2211

14

is not nearly as expansive in scope as it has the potential to

be, there are no ways in which it could be further narrowly

tailored. Thus, it can be firmly established that the means

employed by A2211 to achieve the statute’s purpose are not only

no more extensive than necessary –but can be additionally viewed

as providing the least restrictive means available in achieving

its substantial governmental interest.

Issue 2:

I. THERE IS NO FUNDAMENTAL RIGHT TO SEEK MEDICAL TREATMENT

THAT POSES CRITICAL HEALTH RISKS AND IS INEFFECTIVE

The Thirteenth Circuit correctly held that parents do not

have an unqualified right to select medical procedures for their

children. Smith v. Bell, No. 16-1513 (13th Cir. 2019). Even

where the Court has enumerated the right “to direct the

education and upbringing of one’s children,” this right is

limited. Wash. v. Glucksberg, 521 U.S. 702, 720 (1997) (citing

Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of

Sisters, 268 U.S. 510 (1925)). The right the Petitioners seek to

protect should be carefully described at the “most specific

level at which the court has been able to identify precedent

addressing the protection accorded analogous asserted rights”

while still consistent with the Petitioners’ “description of the

contested right in similar terms.” Pickup v. Brown, 42 F. Supp.

3d 1347, 1369 (E.D. Cal. 2012) aff’d, 740 F.3d 1208 (9th Cir.

15

2014). The court below carefully described the right sought to

be protected as “the right to obtain a particular type of

treatment for their children or to obtain treatment from a

particular provider for their children” where “the government

has reasonably prohibited that type of treatment or provider.”

Smith v. Bell, No. 16-1513 at 5.

The line of cases beginning with Meyer and discussed by the

dissent in the decision on appeal establish the parental

“interest in the general care, custody, and control of their

children.” Pickup v. Brown, 42 F. Supp. 3d at 1368 (citing

Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder,

406 U.S. 205, 213-14 (1972); Pierce, 268 U.S. at 534-35; Meyer,

262 U.S. at 400-01). The few cases establishing the parental

right to direct the upbringing of their children do not provide

a solid foundation for that right to be extended to the

direction of harmful medical treatment for children. Extension

of this right would require “judicially approved assessments of

‘harm to the child’” and a “regime of judicially prescribed, and

federally prescribed, family law.” Troxel v. Granville, 530 U.S.

57, 93 (2000)(Scalia, J., dissenting). Beyond established rights

and liberties, the Court has not been inclined to define

additional rights protected by the Fourteenth Amendment. See

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)

16

(citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225-

226 (1985)).

The right to direct the upbringing of children “may be

subject to limitation under Prince if it appears that parental

decisions will jeopardize the health or safety of the child,”

and is subject to “regulation in the public interest.” Wisconsin

v. Yoder, 406 U.S. 205, 233-234 (1972); Prince v. Massachusetts,

321 U.S. 158, 166 (1944) (citing Reynolds v. United States, 98

U.S. 145; Davis v. Beason, 133 U.S. 333). The limitations on the

fundamental right of parents to direct the upbringing of their

children is such that there is no fundamental right to seek

medical treatment that poses critical health risks and is

ineffective. This understanding of the limits of fundamental

parental rights is adopted in review of a similar statute in

California, where “the court finds there is no fundamental or

privacy right to choose a specific mental health treatment the

state has reasonably deemed harmful to minors,” either from the

Meyers line of cases or in other substantive due process cases.

Pickup, 42 F. Supp. 3d at 1368-1369.

Additionally, there is no fundamental “interest in choosing

a treatment the FDA has not deemed safe and effective.” Pickup

v. Brown, 42 F. Supp. 3d at 1368 (citing Carnohan v. United

States, 616 F.2d 1120 (9th Cir. 1980); Rutherford v. United

States, 616 F.2d 455 (10th Cir. 1980)). The state has a police

17

power to regulate medical treatment in the interest of

protecting public health. Id. at 1375. Where the state has

determined that a medical treatment is harmful and ineffective,

like Texarkana has with conversion therapy, citizens “do not

have a fundamental right to receive” such a therapy. Id.

II. A2211 SURVIVES BOTH RATIONAL BASIS AND STRICT SCRUTINY

REVIEW

Where the regulation does not implicate a fundamental

right, it is permissible where it is “rationally related to a

legitimate state interest.” New Orleans v. Dukes, 427 U.S. 297,

303 (1976). The physical and psychological health of citizens

grants a state a “conceivable rational basis” to regulate

medical treatment. National Ass'n for the Advancement of

Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043,

1051 (9th Cir. 2000) (quoting Dittman v. California, 191 F.3d

1020, 1031 (9th Cir. 1999); citing United States v. Vuitch, 402

U.S. 62, 72 (1971)). Here, the state has chosen to regulate

medical treatment on the basis of the 2009 American

Psychological Association Report indicating that the medical

treatment in question, conversion therapy, poses “critical

health risks” and is ineffective when practiced on minors.

The ability of the state to exercise authority over

children’s activities as recognized in Prince is applied to the

regulation of conversion therapy for California minors in

18

Pickup. The court found that California has an “interest in

preventing possible harm,” and the authority to prohibit minors

from receiving a therapy that is potentially harmful from state-

licensed therapists. Pickup, 42 F. Supp. 3d at 1372. In applying

Prince, the court held that “parents may not conscript the

state-regulated mental health profession into treating their

children with a potentially harmful therapy before those

children have reached the age of majority.” Id.

Just as the California statute banning conversion therapy

passes a rational basis review in demonstrating the state’s

“interest in preventing possible harm,” so too should A2211 be

found to reflect Texarkana’s interest in protecting “the

physical and psychological well-being of lesbian, gay and

bisexual minors from exposure to serious harms caused by

conversion therapy.” Pickup, 42 F. Supp. 3d at 1372; TA. Stat.

Ann. § 21:1-23-24 (2019).

The regulation would also withstand a strict scrutiny

analysis. The state has a “strong interest in regulating mental

health” such that regulation “a valid exercise of its police

power.” Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) (citing

National Ass'n for the Advancement of Psychoanalysis v.

California Bd. of Psychology, 228 F.3d at 1054-1055). The state

has “an urgent interest in the welfare” of children and a right

to regulate parental control of children to “guard the general

19

interest in youth’s well being.” Lassiter v. Department of Soc.

Servs., 452 U.S. 18, 27 (1981); Prince, 321 U.S. at 166. Where

the state has identified that the practice of conversion therapy

poses critical health risks and is ineffective, it has a

compelling interest in protecting “the physical and

psychological well-being of lesbian, gay and bisexual minors.”

TA. Stat. Ann. § 21:1-23-24 (2019). The Court has held that “a

state is not without constitutional control over parental

discretion in dealing with children when their physical or

mental health is jeopardized.” Parham v. J.R., 442 U.S. 584, 603

(1979) (citing Wisconsin v. Yoder, 406 U.S. at 230; Prince v.

Massachusetts, 321 U.S. at 166).

III. A CHILD’S INTEREST IN THEIR OWN WELL-BEING MUST BE PROTECTED

Parents’ rights to direct the upbringing of their children

must be balanced against the child’s protected interest in their

own well-being. A child “has a substantial liberty interest in

not being confined unnecessarily for medical treatment” under

the Fourteenth Amendment. Id. at 600 (addressing the Georgia

statute allowing for voluntary commitment of minors by their

parents). This interest is significant enough “that parents

cannot always have absolute and unreviewable discretion.” Id. at

604. In Parham, the voluntary commitment, although encroaching

on the child’s liberty interest, was deemed medically necessary

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and would be effectively regulated via a process to “[protect]

adequately the child’s constitutional rights.” Id. at 606.

Although not perfectly analogous, Parham provides the basis for

the state to regulate conversion therapy to protect the

fundamental interest of children in their own well-being. In

balancing the child’s interests with the parents’ interests in

determining that a “child needs institutional care,” the court

decided that a neutral arbiter was necessary to balance the

interests of the parents, children, and the state. Id. at 601-

602, 606. In the case of conversion therapy, the state’s,

acting as a neutral arbiter, enacted a categorical prohibition

of the treatment after determining that there is no safe and

effective way to deliver it. This action is within its authority

to regulate and is necessary to adequately protect the

constitutional rights of children.

Conclusion

Through A2211 the state is simply exercising its regulatory

powers in ensuring that children, some of the most vulnerable

members of our society, are protected from a medical treatment

that has been deemed to pose critical health risks. In doing so,

the state is properly and prudently exercising its basic

responsibility to protect the general welfare of her citizens.

For the reasons set forth above, the respondent respectfully

requests that the United States Supreme Court uphold the

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decision of the Thirteenth Circuit and hold that A2211 does not

violate either the free speech clause of the First Amendment or

a fundamental right to direct the upbringing of children under

the Fourteenth Amendment.

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Respectfully submitted,

/s/ __________________________________

/s/ __________________________________