The Fence Around the Infirmary

There is a gate across this road, and on Monday the Trump administration asked the Supreme Court for permission to walk through it. The gate is not the one the newspapers describe. They speak as though the quarrel were about a surgery, and a surgery is certainly at the end of the road. But the gate itself is older, plainer, and far more interesting. It is the old rule that when the state locks a man in a room, it becomes responsible for his body, and that the question of what his body needs belongs to a physician looking at that body, not to a minister looking at a category. The reformer says, “I see no reason why Washington should not settle this for every prisoner at once.” I say: go away and find out why the gate is there. When you can tell me, you may open it.

The reason is not hidden. A free man who dislikes his doctor’s opinion may find another doctor. He may pay, beg, travel, or complain to his cousin, who knows a surgeon. The prisoner in Georgia can do none of these. The state is his only apothecary, his only hospital, and his only second opinion. Our ancestors understood this peculiar helplessness, and they built a narrow, stubborn fence around it. The warden may take away the man’s liberty, his letters, and his dinner hour, but he may not be deliberately indifferent to his serious medical needs. That judgment was always meant to be made patient by patient, like a tailor measuring one coat, because the only alternative was a government issuing coats in one size and calling the draughts discipline.

I will grant the strongest case on the other side, because it deserves more than a sneer. The need for this surgery is genuinely disputed. Serious people doubt the evidence. Ordinary taxpayers are not bigots merely because they wonder why a prison should provide an operation that their own insurer might refuse them. A government may reasonably say that it will not let a lawsuit turn every cell into a clinic for the most contested medicine of the age. All of this is true, and none of it touches the gate. If the evidence is doubtful, the old rule already provides the remedy: the doctors examine the prisoner, the doubts are weighed in the particular case, and a court asks whether anyone was indifferent. The lower courts have done exactly this and blocked the policy. What the administration wants is not a better answer to the medical question. It wants permission never to ask it.

This is where the paradox arrives, and I confess it delights me. The administration presents itself as the party of tradition, standing guard over ancient certainties against modern novelty. But the novelty here is the blanket rule. The tradition is the physician at the bedside. It is the reformers in Washington who have discovered that an entire class of human beings can be diagnosed by memorandum, without anybody taking a pulse. Once a distant government has learned that it may decide a prisoner’s medicine by his category rather than his condition, it will not forget the trick. The next category may be less fashionable to despise and more expensive to treat.

That is the precedent at stake, and it concerns every prisoner, not only the transgender ones. A precedent is a key that fits more locks than the one it was cut for. The strangest thing about modern reformers, of the right as much as the left, is that they will break an old rule to win one argument and then act astonished when the rule is no longer there to protect them in the next.

Picture the prison infirmary: a narrow room, a metal chair bolted to the floor, a doctor with a clipboard and a patient who cannot leave. For generations the whole moral weight of the Constitution has rested on that clipboard, on the plain expectation that the doctor will write down what this particular person needs. The administration is not asking the Supreme Court to overrule the doctor. It is asking to take away the clipboard and hand the doctor a form with the answer already printed on it.