A ‘Bad Faith’ Crusade
The Trump Justice Department went to court Wednesday to continue its fishing expedition for the most sensitive information about trans children.
The First Circuit Court of Appeals heard arguments in two parallel cases: one in which a federal district judge in Massachusetts quashed a subpoena of Boston Children’s Hospital, and one in which a federal district judge in Texas upheld a subpoena of Rhode Island Hospital while a federal judge in Rhode Island quashed it.
If you’re confused, you’re not alone. The DOJ sued Rhode Island Hospital in the northern district of Texas, a blatant attempt to try the case in a region full of Trump judges. The child advocate for the state of Rhode Island responded in kind, moving to quash the subpoena in the less right-wing (and more relevant) district court of Rhode Island.
“The government moved to enforce a subpoena in a Texas court 1,500 miles from the hospital, its many patients and the records sought by the subpoena — records including personal information for an entire class of minor patients,” said Eric Olshan, the attorney for the hospital.
“Is forum shopping evidence of bad faith?” asked Judge Lara Montecalvo, as the hospital and child advocate argued that the subpoenas are not part of a legitimate investigation under the Federal Food, Drug, and Cosmetic Act — as the government claims — but an attempt to endanger trans kids.
The “quagmire” of the dueling courts, as Judge Ojetta Thompson put it, tangled up the second set of arguments, as the judges tried to figure out what happens if they decide the case one way and the Fifth Circuit does the other way.
But the heart of both cases is clear, argued the hospitals: The government is abusing its broad investigatory powers to attack trans kids under the pretense of probing drug labeling and prescription. And it’s doing so this way to circumvent the reality that policing the practice of medicine is the job of the states — the better to pierce the shield of protection many blue states have erected around gender affirming care. Making life as difficult as possible for trans kids and adults in states Republicans control isn’t enough; the Trump administration wants to stamp out every safe haven. And it’s working: Even hospitals in blue states are dropping gender affirming care rather than fighting the full might of the Justice Department.
“The government has made explicitly clear its detest for these individuals,” said Douglas Hallward-Driemeier, attorney for Boston Children’s Hospital. “It has said, in connection with transgender military people, that they are incapable of service and honor and dignity.”
“They know that asking for that information is going to keep those people from getting the care they need,” he added.
Want to keep reading?
Join TPM to get full-access to our reporting, newsletters, and other member-only features.
