An Ohio appellate court ruled Tuesday that the state’s Save Adolescents from Experimentation (SAFE) Act is “unconstitutional on its face,” reversing the judgment of a trial court and ordering the lower court to impose a permanent injunction against the law’s provision protecting minors from puberty blockers and cross-sex hormones for the purpose of an attempted gender transition. “We’re all kind of shaking our head over all of this,” said FRC Senior Vice President Jody Hice on Thursday’s “Washington Watch.” “There is a fierce, fierce battle underway over this issue.”

The decision issued from a three-judge panel of Ohio’s Tenth Circuit, which reached a unanimous verdict, although only two judges joined the court’s opinion. The ACLU, which brought the case (Moe v. Yost), quickly touted the victory in a press release.

The court’s decision turned on its uncommon interpretation of parental rights. “The parent-appellants are not required to show a right to a particular treatment or a particular provider,” wrote the court, because the Supreme Court has recognized that “parents have a fundamental liberty interest in the care, custody, and management of their children.” They eventually concluded that “a minor’s access to puberty blockers and hormone therapy to treat gender dysphoria … is the type of medical decision parents have a fundamental interest in making on behalf of their children.”

The full argument was more nuanced, of course, because the entire debate really turns on whether gender transition drugs are medical care. While superficially engaging with the state’s arguments at length, the appellate court never seriously called the assumption that gender transition procedures are medical care into question.

“We’re talking about cutting off healthy body parts,” exclaimed Hice. “We’re talking about using hormone and puberty blockers in a way that they were not designed to be used. And this is not denying someone health care. It really is like experimentation — and experimentation with lifelong irreversible consequences.”

“I think the appeals court knows that they’re on kind of thin ice here. … These puberty blockers — which Chloe Cole can tell you all about — and she had parental permission, by the way, when she was a kid — the bottom line is they have just as long-term effects as a surgical procedure does,” Ohio Attorney General Dave Yost (R) explained on “Washington Watch.” “This is a case of judges inserting themselves into lawmaking and into the practice of medicine.”

In fact, the appellate court turned the state’s arguments into something of a strawman. “The state’s proposed framing of the fundamental right would render it largely meaningless,” it wrote. “If this right was narrowly defined as the right to seek a specific medical treatment that is ‘deeply rooted in this Nation’s history and tradition’ … the entirety of modern medicine would fall outside of the scope of a parent’s right to control their children’s health care.”

Yet the phrase “deeply rooted in this Nation’s history and tradition” was invented not by Ohio’s lawyers, but by the U.S. Supreme Court in a 1997 decision, to describe which rights (such as parental rights) fell under the category of Substantive Due Process in the 14th Amendment.

Other courts have defined the scope of parental rights quite differently. For instance, in its first Skrmetti opinion, the U.S. Court of Appeals for the Sixth Circuit acknowledged the right of parents “to make decisions concerning the care, custody, and control of their children,” but they argued that “no Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.”

The Sixth Circuit added that “the challengers have not shown that a right to new medical treatments is ‘deeply rooted in our history and traditions.’” For instance, “There is no constitutional right to use a new drug that the FDA has determined is unsafe or ineffective.”

Furthermore, state legislatures “are usually ‘entitled to a strong presumption of validity’” in regulating health and safety and are particularly entitled to deference from judges “where ‘medical and scientific uncertainty’ exists,” the Sixth Circuit stated.

In that decision, the Sixth Circuit was considering a Tennessee law to protect minors from gender transition procedures, which is now awaiting a ruling by the U.S. Supreme Court. However, the Sixth Circuit’s jurisdiction also covers Kentucky, Michigan, and — yes — Ohio.

Recognizing that federal precedent precluded their desired outcome, the Ohio court tried to steer the case away from questions of federal law, which could be appealed to a federal court.

“They’re trying to latch on to an Ohio-only amendment,” argued Yost. “Ohio passed a constitutional amendment … in reaction to Obamacare that said everybody’s got a right to choose their own health care; the federal government is not allowed to impose a plan on us. The ACLU is trying to argue — and the court ultimately agreed — that that law extends to the idea that the state can’t tell parents that they’re not allowed to have their children mutilated or chemically castrated.”

It’s hard to escape the suspicion that the Ohio appellate court’s decision was less about the law than about politics. Judges on Ohio’s Tenth District Court of Appeals must run in partisan elections. The district is coextensive with Franklin County, which contains the state capital, Columbus, a progressive bastion in a generally conservative state. Since 2022, Democratic candidates have won all six elections for seats on the appellate court (the remaining two judges were elected in 2020, the last nonpartisan election); in four of the races, the Democratic candidate ran unopposed, while in the others they cruised to victory with nearly two-to-one margins.

Given the heavily partisan slant of this judicial district, it’s hard to see Democratic judges upholding the state’s SAFE Act, against both their own partisans and the electorate they have to please.

But, for the same reason, the Ohio SAFE Act may stand a good chance on appeal. Currently, the Ohio Supreme Court has a 6-1 Republican majority.

“And we’re going to take that to the Supreme Court,” promised Yost. “It’s a commonsense law that basically says you can’t undertake permanent, irreversible medical procedures to change somebody’s sex before they are 18.”

“I don’t care what color of state that you’re in. This is a bad medical practice,” affirmed Dr. Jennifer Bauwens, director of FRC’s Center for Family Studies, on “Washington Watch.” “And we need to use every available mechanism that we have, whether it’s taking these cases to the Supreme Court [or] suing doctors who perform malpractice.”