Trump Seeks Supreme Court Ban on Trans Inmate Surgery
The Surgeon General of the Supreme Court
The public wants the government to stop paying for sex-change operations in prison, and it wants this with the special fervor reserved for causes that cost it nothing to hold. That fervor is exactly the difficulty. The democratic vanity here is the belief that the voter is a permanent spectator of the penitentiary and never a possible tenant: that the rules the State writes for the man in the cell will stay in the cell, like his toothbrush.
Consider what the Trump administration actually did on Monday. The most powerful executive establishment on the planet, commanding armies, fleets, and a tax apparatus of fearful ingenuity, went to the United States Supreme Court about the medical treatment of one prisoner in Georgia. The Solicitor General’s office, whose lawyers are paid better than most surgeons, has drafted, polished, footnoted and filed a brief whose whole purpose is to keep a scalpel away from a single inmate. The lower courts had already looked at the matter and blocked the policy. So the Republic’s highest legal talent was sent back up the hill, briefcases in hand, to fight the same battle again. There has been no comparable concentration of federal firepower on one prisoner since the government hanged men in public squares and sold tickets.
The strongest case for the administration deserves a fair statement, and it is not a stupid one. The necessity of the surgery is genuinely disputed. The taxpayer does not owe a convict every procedure a sympathetic physician can be induced to prescribe, and a prison is not a spa with bars on the windows. Grant all of it. It is still beside the point, because the administration is not asking the Court to decide whether this operation is necessary for this inmate. It is asking for a rule that settles the question for everyone in advance, before any doctor has opened a chart. A disputed medical question is precisely the kind of thing the old machinery was built for: physicians testify, a trial judge weighs them, and the answer fits the patient. A blanket policy replaces the diagnosis with a slogan, and slogans have never been known to examine anybody.
This is where the prudent citizen, whatever he thinks of transgender surgery, ought to feel the cold draft under the door. The old doctrine that a state which locks a man up must attend to his ailments did not come from sentimentalists. It came from the plain observation that a prisoner cannot walk to a pharmacy. Once the government establishes that it may strike whole categories of treatment from the list by executive decree, with the Supreme Court’s blessing, it has discovered a lever of exquisite convenience. Today the lever is pulled against a category the crowd dislikes, which is why the crowd applauds. The lever does not know that, and will not remember it. The next administration, or the one after, will have its own list of disfavored ailments and disfavored patients, and it will find the precedent waiting like a key under the mat.
Meanwhile, somewhere in Georgia, there is a prison infirmary with linoleum floors and a clock that runs slow, and a physician in a white coat who has examined this patient and written something in a file. That physician is the only person in the whole affair who has seen the body in question. The President has not. The Solicitor General has not. The nine Justices will not. The editorial writers and radio orators who have made the case a referendum on civilization itself would not know the inmate if they sat beside them on a bus. Yet the question is being settled by everyone except the one person who has looked.
The politician’s gain is obvious. He has found a hobgoblin that fits in a single cell, costs almost nothing to fight, and can be displayed at rallies like a captured flag. The reformers on the other side have their own flag, and will wave it just as briskly. Both armies will claim victory in the fundraising letters. The inmate is simply the ground they are fighting over.
The voter, cheering from the bleachers, believes he has struck a blow against extravagance. What he has actually done is endorse the proposition that Washington may practice medicine by memorandum on anyone it holds in custody, provided the patient is sufficiently unpopular. He should remember that popularity is a perishable commodity and custody is not. A man may be the toast of the Rotary on Tuesday and sitting in a county lockup on Friday over a tax dispute. When the guard walks him down to the infirmary, the doctor will look up from the chart and explain, with real regret, that his condition was abolished by a brief filed on a Monday.