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The Prisoner Sex-Change Case

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Today's News Scan notes that the Massachusetts Department of Corrections intends to seek further review of the decision of a panel of the U.S. Court of Appeals for the First Circuit that it must pay for sex-change surgery for a murderer.  More precisely, the DoC is seeking rehearing en banc.

The First Circuit only has six "active" judges.  Three of them were on the panel and split 2-1.  (Opinion here.)  To get a majority, the DoC will have to pick up all three of the others.  I'm not terribly optimistic.

If rehearing en banc is denied, DoC can file a certiorari petition with the Supreme Court, which may be the main plan.

1 Comment

What a joke. That a state has to expend scarce resources to litigate this silly claim is a testament to the sorry state of the federal judiciary. This isn't some rogue judge--this is a circuit court of appeals. This case is an embarrassment.

People can go back and forth about standards of care and what's medically necessary blah blah blah. But all that just demonstrates the utter lunacy of unmooring "what [they]'ve said about [the Constitution]" from the Constitution itself. All of that stuff makes sense when we're talking about broken arms, extreme treatable pain etc. It doesn't make sense when we're talking about what everyone in the outside world thinks of as elective surgery. Additionally, there's a morality component here that isn't present in cases like a lack of treatment for a broken arm. Should a state really be forced to finance such a thing?

The answer is no. The 8th Amendment's requirement of medical care is not coterminous with what some doctor says is "medically necessary." It is not "cruel" to deny a sex-change operation when ordinary citizens, who have not committed murder, cannot get them at state expense.

Hopefully, the Supreme Court will take this up. My guess is that there are some votes for the murderer's position. We'll see.

The judges in the majority and the execrable Judge Wolf have disgraced their office. They should resign.

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